Section 361 | CALCRIM (Jury Instructions)

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.
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].)
Give this instruction only when a testifying defendant completely fails to explain or
deny incriminating evidence, or claims to lack knowledge although it appears from
the evidence that defendant could reasonably be expected to have that knowledge.
(People v. Cortez (2016) 63 Cal.4th 101, 117–118 [201 Cal.Rptr.3d 846, 369 P.3d
521].)
AUTHORITY
•
Instructional Requirements. Evid. Code, § 413.
•
Cautionary Language. People v. Saddler (1979) 24 Cal.3d 671, 683 [156
Cal.Rptr. 871, 597 P.2d 130].
•
This Instruction Upheld. People v. Vega (2015) 236 Cal.App.4th 484, 494–500
[186 Cal.Rptr.3d 671]; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1068
[88 Cal.Rptr.3d 749].
RELATED ISSUES
Bizarre or Implausible Answers
If the defendant’s denial or explanation is bizarre or implausible, several courts have
held that the question whether his or her response is reasonable should be given to
the jury with an instruction regarding adverse inferences. (People v. Mask (1986)
188 Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; People v. Roehler (1985) 167
Cal.App.3d 353, 392–393 [213 Cal.Rptr. 353].) However, in People v. Kondor
(1988) 200 Cal.App.3d 52, 57 [245 Cal.Rptr. 750], the court stated, “the test for
giving the instruction [on failure to deny or explain] is not whether the defendant’s
testimony is believable. [The instruction] is unwarranted when a defendant explains
or denies matters within his or her knowledge, no matter how improbable that
explanation may appear.”
Facts Beyond the Scope of Examination
If the defendant has limited his or her testimony to a specific factual issue, it is
error for the prosecutor to comment, or the trial court to instruct, on his or her
failure to explain or deny other evidence against him or her that is beyond the scope
of this testimony. (People v. Tealer (1975) 48 Cal.App.3d 598, 604–607 [122
Cal.Rptr. 144].)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
EVIDENCE
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Defendant’s Trial Rights, § 80.08[6][a][i], Ch. 83, Evidence, § 83.01[2][b], Ch. 85,
Submission to Jury and Verdict, §§ 85.01[5], 85.04[2][b] (Matthew Bender).
CALCRIM No. 361
EVIDENCE
136