Instruction 3.580, Criminal Model Jury Instructions for Use in the District Court

CONSCIOUSNESS OF GUILT

You have heard evidence suggesting that the defendant:

Here outline the nature of the evidence, e.g.:

A. Flight: may have fled after discovering that they were about

to be (arrested for) (charged with) the offense for which the defendant

is now on trial.

B. False statements: may have intentionally made certain false

statements (before) (after) (during) their arrest.

C. False name: may have used a false name to conceal their

identity.

D. Evidence tampering: may have intentionally tried to (conceal)

(destroy) (falsify) evidence in this case.

E. Witness intimidation or bribery: may have intentionally attempted to

(intimidate) (coerce) (bribe) a witness whom the defendant believed

would testify against them.

If the Commonwealth has proved that the defendant did

_______________ , you may consider whether such actions

indicate feelings of guilt by the defendant and whether, in turn,

such feelings of guilt may tend to show guilt on (this charge)

(these charges). You are not required to draw such inferences,

and you should not do so unless they appear to be reasonable in

light of all the circumstances of this case.

If you decide that such inferences are reasonable, it will be up

to you to decide how much importance to give them. You should

always remember that there may be numerous reasons why an

innocent person might do such things. Such conduct does not

necessarily reflect feelings of guilt. Please also bear in mind that a

person having feelings of guilt is not necessarily guilty in fact, for

such feelings are sometimes found in innocent people.

Finally, remember that, standing alone, such evidence is

never enough by itself to convict a person of a crime. You may

not find the defendant guilty on such evidence alone, but you may

consider it in your deliberations, along with all the other evidence.

Whenever the prosecution argues that certain evidence indicates consciousness of guilt,

the judge is required at the defendant’s request to instruct the jury: (1) that they may,

but need not, consider such evidence as a factor tending to prove the defendant’s guilt;

(2) that they may not convict on the basis of such evidence alone; (3) that flight or similar

conduct does not necessarily reflect feelings of guilt, since there are numerous reasons

why an innocent person might flee; and (4) that even if flight or similar conduct

demonstrates feelings of guilt, it does not necessarily mean that the defendant is guilty in

fact because guilty feelings are sometimes present in innocent people. Commonwealth

v. Toney, 385 Mass. 575, 585 (1982). If the defense does not request such an

instruction, it “is left to the sound discretion of the judge” whether to give such an

instruction either sua sponte or over the defendant’s objection. See Commonwealth v.

Morris, 465 Mass. 733, 738 (2013) and cases cited; Commonwealth v. Simmons, 419

Mass. 426, 435-436 (1995) (discarding Cruz rule that required such a charge sua

sponte); Commonwealth v. Cruz, 416 Mass. 27, 30-31 (1993). See also

Commonwealth v. Matos, 394 Mass. 563, 566 (1985); Commonwealth v. Henry, 37

Mass. App. Ct. 429, 437-438 (1994); Commonwealth v. Mercado, 24 Mass. App. Ct.

391, 400 (1987); Commonwealth v. Rivera, 23 Mass. App. Ct. 605, 608-610 (1987);

Commonwealth v. Dwyer, 22 Mass. App. Ct. 724, 728-729 (1986). Where

consciousness of guilt is central to the prosecution’s case, it is reversible error for the

judge to charge only on the first two points and to refuse on request to charge as to the

third and fourth points. Commonwealth v. Estrada, 25 Mass. App. Ct. 907, 908 (1987).

The model instruction has been affirmed as “balanced and in accord with the principles

enunciated in” Toney. Commonwealth v. Knap, 412 Mass. 712, 715-716 (1992). See

also Commonwealth v. Morris, 465 Mass. 733, 739 (2013) (reaffirming opinion that this

instruction is “thoughtful and well balanced”).

SUPPLEMENTAL INSTRUCTION

Where such evidence is of another crime: I caution you, in

considering such evidence, that the defendant is not on

trial for ______________, and you are not to consider such

evidence as a substitute for proof of guilt of the offense

with which the defendant is charged. You may use such

evidence only for the purpose I have instructed; that is,

whether it shows a consciousness of guilt for the crime

charged.