Instruction 3.520, Criminal Model Jury Instructions for Use in the District Court

ADMISSION BY SILENCE

You have heard testimony suggesting that [speaker] allegedly

(told the defendant) (said in the defendant’s presence and hearing) that

__________ . You have also heard testimony that the defendant allegedly

(offered no response or explanation) (replied by saying that __________ ).

The Commonwealth is suggesting that the defendant’s (silence) (reply

was evasive or ambiguous and therefore it) amounts to a silent admission

by the defendant that the accusation was true. If you believe the testimony,

you will have to decide whether or not that is a fair conclusion.

Sometimes, when a direct accusation against a person is made to his

face, you might naturally expect him to deny or correct the accusation if he

is innocent of it. But that is not always true. Under some circumstances, it

might not be reasonable to expect a routine denial.

You must be cautious in this area to be sure that any conclusions you

draw are fair ones. First of all, you must be certain that the defendant

heard any accusation and understood its significance.

You must also be satisfied that it is a fair conclusion that a person

would always speak up in a situation like this if he were innocent. After all,

no one is required to respond to every negative comment that is made

about him. And there may be other factors in a given situation, apart from

guilt or innocence with respect to the particular accusation, that might

explain why a person did not choose to respond.

On the other hand, some accusations may be of such a nature, or

come from such a source, that it may be natural to expect an innocent

person to protest when such an accusation is made to his face if there are

no other explanations for his silence.

If you accept the testimony about the defendant’s alleged (silence)

(reply), then you will have to look to your common sense and experience to

determine how to interpret the defendant’s (silence) (answer) in this

particular case.

If you conclude that the defendant did silently admit that the

accusation was true, you may give that whatever significance you feel it is

fairly entitled to receive in your deliberations. If you are uncertain whether

the defendant’s alleged (silence) (reply) amounted to a silent admission,

then you should disregard it entirely and go on to consider the other

evidence in this case.

“Even where a jury is given proper instructions concerning the legal principles relating to admissions

by silence, there is a substantial risk of misunderstanding and misapplication by a jury.”

Commonwealth v. Freeman, 352 Mass. 556, 563, 227 N.E.2d 3, 8 (1967). For that reason, the Ninth

Circuit’s Committee on Jury Instructions recommends that no such instruction be given and that, if

the evidence permits an adverse inference, counsel be permitted to argue the point. Manual of Model

Jury Instructions for the Ninth Circuit § 4.02 (1985 ed.).