California Criminal Jury Instructions (CALCRIM) (2017)

362. Consciousness of Guilt: False Statements

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362.Consciousness of Guilt: False Statements
If [the] defendant [ <insert name of defendant when multiple
defendants on trial>] made a false or misleading statement before this
trial relating to the charged crime, knowing the statement was false or
intending to mislead, that conduct may show (he/she) was aware of (his/
her) guilt of the crime and you may consider it in determining (his/her)
guilt. [You may not consider the statement in deciding any other
defendant’s guilt.]
If you conclude that the defendant made the statement, it is up to you
to decide its meaning and importance. However, evidence that the
defendant made such a statement cannot prove guilt by itself.
New January 2006; Revised August 2009, April 2010
BENCH NOTES
Instructional Duty
This instruction should not be given unless it can be inferred that the defendant
made the false statement for self-protection rather than to protect someone else.
(People v. Rankin (1992) 9 Cal.App.4th 430, 436 [11 Cal.Rptr.2d 735] [error to
instruct on false statements and consciousness of guilt where defendant lied to
protect an accomplice]; see also People v. Blakeslee (1969) 2 Cal.App.3d 831, 839
[82 Cal.Rptr. 839].)
AUTHORITY
• Instructional Requirements. People v. Najera (2008) 43 Cal.4th 1132, 1139
[77 Cal.Rptr.3d 605, 184 P.3d 732] [in context of adoptive admissions]; People
v. Atwood (1963) 223 Cal.App.2d 316, 333 [35 Cal.Rptr. 831]; but see People v.
Carter (2003) 30 Cal.4th 1166, 1197–1198 [135 Cal.Rptr.2d 553, 70 P.3d 981];
see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102–103 [17
Cal.Rptr.3d 710, 96 P.3d 30].
• This Instruction Upheld. People v. McGowan (2008) 160 Cal.App.4th 1099,
1104 [74 Cal.Rptr.3d 57].
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 110.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 641.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.13[1], Ch. 85, Submission to Jury and Verdict, § 85.03[2][c]
(Matthew Bender).
COMMENTARY
The word “willfully” was not included in the description of the making of the false
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statement. Although one court suggested that the jury be explicitly instructed that
the defendant must “willfully” make the false statement (People v. Louis (1984)
159 Cal.App.3d 156, 161–162 [205 Cal.Rptr. 306]), the California Supreme Court
subsequently held that such language is not required. (People v. Mickey (1991) 54
Cal.3d 612, 672, fn. 9 [286 Cal.Rptr. 801, 818 P.2d 84].)
RELATED ISSUES
Evidence
The false nature of the defendant’s statement may be shown by inconsistencies in
the defendant’s own testimony, his or her pretrial statements, or by any other
prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498 [244 Cal.Rptr.
148, 749 P.2d 803] [overruling line of cases that required falsity to be demonstrated
only by defendant’s own testimony or statements]; accord People v. Edwards
(1992) 8 Cal.App.4th 1092, 1103 [10 Cal.Rptr.2d 821]; People v. Williams (1995)
33 Cal.App.4th 467, 478–479 [39 Cal.Rptr.2d 358].)
Un-Mirandized Voluntary Statement
The Miranda rule (Miranda v. Arizona (1966) 384 U.S. 436, 444, 479 [86 S.Ct.
1602, 16 L.Ed.2d 694]) does not prohibit instructing the jury that it may draw an
inference of guilt from a willfully false or deliberately misleading un-Mirandized
statement that the defendant voluntarily introduces into evidence on direct
examination. (People v. Williams (2000) 79 Cal.App.4th 1157, 1166–1169 [94
Cal.Rptr.2d 727].)
363–369. Reserved for Future Use
EVIDENCE CALCRIM No. 362
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