CACI No. 3052. Use of Fabricated Evidence - Essential Factual Elements (42 U.S.C. § 1983)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3052.Use of Fabricated Evidence - Essential Factual Elements (42
U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] deliberately fabricated
evidence against [him/her/nonbinary pronoun], and that as a result of this
evidence being used against [him/her/nonbinary pronoun],
[he/she/nonbinary pronoun] was deprived of [his/her/nonbinary pronoun]
[specify right, privilege, or immunity secured by the Constitution, e.g.,
liberty] without due process of law. In order to establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant][specify fabricated evidence, e.g., informed
the district attorney that plaintiff’s DNA was found at the scene of the
2. That this [e.g., statement] was not true;
3. That [name of defendant] knew that the [e.g., statement] was not
true; and
4. That because of [name of defendant]’s conduct, [name of plaintiff]
was deprived of [his/her/nonbinary pronoun][e.g., liberty].
To decide whether there was a deprivation of rights because of the
fabrication, you must determine what would have happened if the [e.g.,
statement] had not been used against [name of plaintiff].
[Deprivation of liberty does not require that [name of plaintiff] have been
put in jail. Nor is it necessary that [he/she/nonbinary pronoun] prove that
[he/she/nonbinary pronoun] was wrongly convicted of a crime.]
New May 2017
Directions for Use
This instruction is for use if the plaintiff claims to have been deprived of a
constitutional or legal right based on false evidence. Give also CACI No. 3000,
Violation of Federal Civil Rights - In General - Essential Factual Elements.
What would have happened had the fabricated evidence not been presented (i.e.,
causation) is a question of fact. (Kerkeles v. City of San Jose (2011) 199
Cal.App.4th 1001, 1013 [132 Cal.Rptr.3d 143].)
Give the last optional paragraph if the alleged fabrication occurred in a criminal
case. It would appear that the use of fabricated evidence for prosecution may be a
constitutional violation even if the arrest was lawful or objectively reasonable. (See
Kerkeles, supra, 199 Cal.App.4th at pp. 1010-1012, quoting favorably Ricciuti v.
New York City Transit Authority (2d Cir. 1997) 124 F.3d 123, 130.)
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Sources and Authority
• “Substantive due process protects individuals from arbitrary deprivation of their
liberty by government.” (Costanich v. Dep’t of Soc. & Health Servs. (9th Cir.
2010) 627 F.3d 1101, 1110.)
• “[T]here is a clearly established constitutional due process right not to be
subjected to criminal charges on the basis of false evidence that was deliberately
fabricated by the government.” (Devereaux v. Abbey (9th Cir. 2001) 263 F.3d
1070, 1074-1075.)
• “In order to prevail on a judicial deception claim, a plaintiff must prove that ‘(1)
the defendant official deliberately fabricated evidence and (2) the deliberate
fabrication caused the plaintiff’s deprivation of liberty.’ ” (Keates v. Koile (9th
Cir. 2018) 883 F.3d 1228, 1240.)
• “To establish causation, [plaintiff] must raise a triable issue that the fabricated
evidence was the cause in fact and proximate cause of his injury. Like in any
proximate cause analysis, an intervening event may break the chain of causation
between the allegedly wrongful act and the plaintiff’s injury.” (Caldwell v. City
& Cty. of San Francisco (9th Cir. 2018) 889 F.3d 1105, 1115, internal citation
• “A plaintiff can prove deliberate fabrication in several ways. Most basically, a
plaintiff can produce direct evidence of deliberate fabrication. Alternatively, a
plaintiff can produce circumstantial evidence related to a defendant’s motive.”
(Caldwell, supra, 889 F.3d at p. 1112, internal citations omitted.)
• “ ‘No arrest, no matter how lawful or objectively reasonable, gives an arresting
officer or his fellow officers license to deliberately manufacture false evidence
against an arrestee. To hold that police officers, having lawfully arrested a
suspect, are then free to fabricate false confessions at will, would make a
mockery of the notion that Americans enjoy the protection of due process of the
law and fundamental justice. Like a prosecutor’s knowing use of false evidence
to obtain a tainted conviction, a police officer’s fabrication and forwarding to
prosecutors of known false evidence works an unacceptable “corruption of the
truth-seeking function of the trial process.” [Citations.]’ ” (Ricciuti, supra, 124
F.3d at p. 130.)
• “Even if there was probable cause to arrest plaintiff, we cannot say as a matter
of law on the record before us that he would have been subjected to continued
prosecution and an unfavorable preliminary hearing without the use of the false
lab report and testimony derived from it. These are questions of fact which
defendants appear to concede are material to the issue of causation, and which
cannot be determined without weighing the evidence presented and conclusions
reached at the preliminary hearing. Defendants’ statement of undisputed facts
does not establish lack of causation as a matter of law.” (Kerkeles, supra, 199
Cal.App.4th at p. 1013.)
• “There is no authority for defendants’ argument that a due process claim cannot
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be established unless the false evidence is used to convict the plaintiff. . . .
[T]he right to be free from criminal charges, not necessarily the right to be free
from conviction, is a clearly established constitutional right supporting a section
1983 claim.” (Kerkeles, supra, 199 Cal.App.4th at p. 1010.)
• “There is no sound reason to impose a narrow restriction on a plaintiff’s case by
requiring incarceration as a sine qua non of a deprivation of a liberty interest.”
(Kerkeles, supra, 199 Cal.App.4th at p. 1011.)
• “[T]here is no such thing as a minor amount of actionable perjury or of false
evidence that is somehow permissible. Why? Because government perjury and
the knowing use of false evidence are absolutely and obviously irreconcilable
with the Fourteenth Amendment’s guarantee of Due Process in our courts.
Furthermore, the social workers’ alleged transgressions were not made under
pressing circumstances requiring prompt action, or those providing ambiguous or
conflicting guidance. There are no circumstances in a dependency proceeding
that would permit government officials to bear false witness against a parent.”
(Hardwick v. Cnty. of Orange (9th Cir. 2017) 844 F.3d 1112, 1119.)
• “[T]o the extent that [plaintiff] has raised a deliberate-fabrication-of-evidence
claim, he has not adduced or pointed to any evidence in the record that supports
it. For purposes of our analysis, we assume that, in order to support such a
claim, [plaintiff] must, at a minimum, point to evidence that supports at least one
of the following two propositions: (1) Defendants continued their investigation
of [plaintiff] despite the fact that they knew or should have known that he was
innocent; or (2) Defendants used investigative techniques that were so coercive
and abusive that they knew or should have known that those techniques would
yield false information.” (Devereaux, supra, 263 F.3d at p. 1076.)
• “[T]he Constitution prohibits the deliberate fabrication of evidence whether or
not the officer knows that the person is innocent. The district court erred by
granting judgment as a matter of law to Defendants because, in this case
involving direct evidence of fabrication, Plaintiff was not required to show that
[defendant] actually or constructively knew that he was innocent.” (Spencer v.
Peters (9th Cir. 2017) 857 F.3d 789, 800, internal citations omitted.)
• “The Devereaux test envisions an investigator whose unlawful motivation is
illustrated by her state of mind regarding the alleged perpetrator’s innocence, or
one who surreptitiously fabricates evidence by using coercive investigative
methods. These are circumstantial methods of proving deliberate falsification.
Here, [plaintiff] argues that the record directly reflects [defendant]’s false
statements. If, under Devereaux, an interviewer who uses coercive interviewing
techniques that are known to yield false evidence commits a constitutional
violation, then an interviewer who deliberately mischaracterizes witness
statements in her investigative report also commits a constitutional violation.
Similarly, an investigator who purposefully reports that she has interviewed
witnesses, when she has actually only attempted to make contact with them,
deliberately fabricates evidence.” (Costanich, supra, 627 F.3d at p. 1111.)
• “[N]ot all inaccuracies in an investigative report give rise to a constitutional
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claim. Mere ‘careless[ness]’ is insufficient, as are mistakes of ‘tone.’ Errors
concerning trivial matters cannot establish causation, a necessary element of any
§ 1983 claim. And fabricated evidence does not give rise to a claim if the
plaintiff cannot ‘show the fabrication actually injured her in some way.’ ”
(Spencer, supra, 857 F.3d at p. 798, internal citations omitted.)
• “In light of long-standing criminal prohibitions on making deliberately false
statements under oath, no social worker could reasonably believe that she was
acting lawfully in making deliberately false statements to the juvenile court in
connection with the removal of a dependent child from a caregiver.” (Marshall v.
County of San Diego (2015) 238 Cal.App.4th 1095, 1113 [190 Cal.Rptr.3d 97],
footnotes omitted.)
• “[P]retrial detention can violate the Fourth Amendment not only when it
precedes, but also when it follows, the start of legal process in a criminal case.
The Fourth Amendment prohibits government officials from detaining a person
in the absence of probable cause. That can happen when the police hold
someone without any reason before the formal onset of a criminal proceeding.
But it also can occur when legal process itself goes wrong - when, for example,
a judge’s probable-cause determination is predicated solely on a police officer’s
false statements. Then, too, a person is confined without constitutionally
adequate justification.” (Manuel v. City of Joliet (2017) - U.S. - [137 S.Ct.
911, 918, 197 L.Ed.2d 312], internal citation omitted.)
• “Deliberately fabricated evidence in a prosecutor’s file can rebut any
presumption of prosecutorial independence [i.e., that filing of a criminal
complaint immunizes investigating officers because it is presumed that the
prosecutor filing the complaint exercised independent judgment in determining
that probable cause for an accused’s arrest exists at that time]. . . . In sum, if a
plaintiff establishes that officers either presented false evidence to or withheld
crucial information from the prosecutor, the plaintiff overcomes the presumption
of prosecutorial independence and the analysis reverts back to a normal
causation question.” (Caldwell, supra, 889 F.3d at p. 1116, internal citation
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901 et
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law - Law Enforcement and Prosecution, ¶ 10.05 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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