2.6-3 Consciousness of Guilt
Revised to December 1, 2007 (modified November 1, 2008)
In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt.1
[<Include if appropriate:> For example,
flight, when unexplained, may indicate consciousness of guilt if the facts and the circumstances support it.
a person's possession of or attempt to conceal anything acquired through the crime may tend to show a consciousness of guilt.
a person's false statements as to (his/her) whereabouts at the time of the offense may tend to show a consciousness of guilt.]
Such (acts / statements) do not, however, raise a presumption of guilt.2 If you find the evidence proved and also find that the (acts / statements) were influenced by the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from a guilty conscience.3
The state claims that the following conduct is evidence of consciousness of guilt: <describe specific evidence>.
It is up to you as judges of the facts
to decide whether the defendant's (acts / statements), if proved, reflect a
consciousness of guilt and to consider such in your deliberations in conformity
with these instructions.
1 It is improper to refer to a "guilty connection" as a synonym for "consciousness of guilt." State v. Francis, 228 Conn. 118, 133 n.16 (1993); State v. Murdick, 23 Conn. App. 692, 702-703 & 703 n.6, cert. denied, 217 Conn. 809 (1991).
2 See State v. Lugo, 266 Conn. 674, 697 (2003).
3 See State v. Hernandez, 91 Conn. App. 169, 177, cert. denied, 276 Conn. 912 (2005) (court improperly instructed that statements when shown to be false are circumstantial evidence of consciousness of guilt rather than that they are circumstantial evidence from which may be inferred a consciousness of guilt).
"Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity." (Internal quotation marks omitted.) State v. Middlebrook, 51 Conn. App. 711, 720-21, cert. denied, 248 Conn. 910 (1999). "Whether particular conduct is an index of guilt depends on the particular circumstances." State v. Jones, 234 Conn. 324, 356 (1995) (evidence that defendant objected to physical tests on religious grounds was not probative of consciousness of guilt); see also State v. Hinds, 86 Conn. App. 557, 565-67 (2004), cert. denied, 273 Conn. 915 (2005) (false statements to the police could not support inference that they were made in an effort to exculpate the defendant). For an opinion critical of giving this instruction, see United States v. Mundy, 539 F.3d 154 (2nd Cir. 2008).
A consciousness of guilt instruction applies only to the conduct of the defendant, not that of a witness. State v. Stavrakis, 88 Conn. App. 371, 386 (2005), cert. denied, 273 Conn. 939 (2006) (defendant wanted victim's statements to show consciousness of guilt that the victim had been the initial aggressor)
Types of consciousness of
The most commonly offered types of consciousness of guilt are flight, false statements, or concealment or fabrication of evidence. The instruction should be tailored to the evidence of the case, but the court should be careful not to improperly marshal the evidence. See State v. Hernandez, 218 Conn. 458, 461-66 (1991) (court presented a partisan view of the evidence which discounted the defendant's evidence and his theory of defense).
On flight, see State v. Kelly, 256 Conn. 23, 53 n.17 (2001); State v. Scott, 270 Conn. 92, 104 n.7 (2004), cert. denied, 544 U.S. 987, 125 S.Ct. 1861, 161 L.Ed.2d 746 (2005); State v. Groomes, 232 Conn. 455, 473 n.14 (1995). An instruction that does not include innocent explanations, even if presented by defendant, is not erroneous, but it is within the court's discretion to include reference to a possible innocent explanation that is supported by the evidence. State v. Hines, 243 Conn. 796, 811-816 (1998); State v. Freeney, 228 Conn. 582, 593-94 (1994). See also State v. Freeney, supra, 228 Conn. 602-10 (Berdon, J., dissenting) (proposing an even-handed approach to flight instructions).
On false statements, see State v. Marshall, 45 Conn. App. 66, 80 n.9 (1997), rev'd on other grounds, 246 Conn. 799 (1998) (statements meant to inculpate others); State v. Graham, 33 Conn. App. 432, 441 n.3, cert. denied, 229 Conn. 906 (1994) (false testimony at trial).
On concealment or fabrication of evidence, see State v. Coltherst, 263 Conn. 478, 503-507 (2003) (defendant wrote letter offering money in exchange for an alibi).
Flight in relation to the
duty to retreat
"The section of the statute that pertains to the duty to retreat merely allows the state to rebut a claim of self-defense by showing that the defendant could have retreated safely before using deadly force. It does not follow that a defendant is statutorily or constitutionally entitled to use evidence of retreat after using deadly force to bolster a claim of self-defense without permitting the jury to consider other possible reasons for the flight. As in other contexts, evidence of flight after using deadly force inherently is ambiguous and does not logically compel a conclusion that the reason for the flight was self-defense. Although it may be prudent, as a general rule, for the trial court to use greater caution in giving a consciousness of guilt instruction when a defendant has claimed self-defense, we do not believe that such instructions [on consciousness of guilt] inherently are unconstitutional." (Emphasis in original.) State v. Luster, 279 Conn. 414, 424 (2006).
The court is not required to give an instruction on "consciousness of innocence" because there is no support in the law for such a request. State v. Holley, 90 Conn. App. 350, 364-66, cert. denied, 275 Conn. 929 (2005); State v. Otero, 49 Conn. App. 459, 469-70, cert. denied, 247 Conn. 910 (1998) (defendant not entitled to instruction on lack of flight or voluntary surrender to show consciousness of innocence).