California Crimonal Jury Instructions-CALCRIM

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Criminal Jury Instructions Volume I

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CALCRIM Series 300

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California Criminal Jury Instructions
Volume I
Series 300 EVIDENCE
D. DEFENDANT’S TESTIMONY AND STATEMENTS

361. Failure to Explain or Deny Adverse Testimony

CALCRIM No. 361 EVIDENCE

If the defendant failed in (his/her) testimony to explain or deny evidence against (him/her), and if (he/she) could reasonably be expected to have done so based on what (he/she) knew, you may consider (his/her) failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt.

If the defendant failed to explain or deny, it is up to you to decidethe meaning and importance of that failure.

New January 2006

BENCH NOTES

Instructional Duty

No authority imposes a duty to give this instruction sua sponte. This instruction should only be given when the defendant testifies and the privilege against self-incrimination has not been successfully invoked. (People v. Mask (1986) 188 Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; People v. Haynes (1983) 148 Cal.App.3d 1117, 1118 [196 Cal.Rptr. 450].)

Before an instruction on this principle may be given, the trial court must ascertain as a matter of law: (1) if a question was asked that called for an explanation or denial of incriminating evidence; (2) if the defendant knew the facts necessary to answer the question or if some circumstance precluded the defendant from knowing such facts; and (3) if the defendant failed to deny or explain the incriminating evidence when answering the question. (People v. Saddler (1979) 24 Cal.3d 671, 682–683 [156 Cal.Rptr. 871, 597 P.2d 130] [instruction erroneously given because there was no evidence that defendant failed to deny or explain incriminating evidence]; People v. Marsh (1985) 175 Cal.App.3d 987, 994 [221 Cal.Rptr. 311] [same]; People v. De Larco (1983) 142 Cal.App.3d 294, 309 [190 Cal.Rptr. 757] [same]; see also People v. Marks (1988) 45 Cal.3d 1335, 1346 [248 Cal.Rptr. 874, 756 P.2d 260].)

Contradiction of the state’s evidence is not by itself a failure to deny or explain. (People v. Marks (1988) 45 Cal.3d 1335, 1346 [248 Cal.Rptr. 874, 756 P.2d 260]; People v. Peters (1982) 128 Cal.App.3d 75, 86 [180 Cal.Rptr. 76].) Failure to recall is not an appropriate basis for this instruction. (People v. De Larco (1983) 142 Cal.App.3d 294, 309 [190 Cal.Rptr. 757].)

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CALCRIM 361. Failure to Explain or Deny Adverse Testimony Page 130
CALCRIM 361. Failure to Explain or Deny Adverse Testimony Page 131

(Pub 1284)

California Criminal Jury Instructions-CALCRIM-Table of Contents
California Criminal Jury Instructions-CALCRIM-Volume 1 Table of Contents
California Jury Instructions-CALCRIM-Vol. 1. General Instructions

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