Criminal Jury Instructions for the District of Columbia
II. Final Instructions Scope
C. Evaluation of Other Evidence

Instruction 2.301 FLIGHT OR CONCEALMENT BY DEFENDANT—NOTE

The District of Columbia Court of Appeals “has cautioned that flight instructions should be used ‘sparsely.’ ” Headspeth v. U.S., 86 A.3d 559, 564 (D.C. 2014) (citing Logan v. U.S., 489 A.2d 485, 489 (D.C. 1985)). This “admonition reflects criticism, which courts have long leveled, that it is a matter of common knowledge that men who are entirely innocent do sometimes flee … through fear of being apprehended as the guilty parties.” Headspeth, 86 A.3d at 564. The caution “also reflects a recognition that a trial judge’s instructions about permissible inferences may be given great weight by a jury.” Id. See also Miller v. U.S., 320 F.2d 767, 770–73 (D.C. Cir. 1963) (upholding flight instruction on plain error review, but recommending limited use of such instructions because “feelings of guilt may be present without actual guilt”); U.S. v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972) (“If anything, the interest of justice might be better served by removing entirely from instructions both flight and absence of flight, and relegating the entire subject to the give and take of argument.”).

Given the D.C. Court of Appeals acknowledgement that this instruction should be used sparingly, the 2016 release no longer includes this as a separate instruction. If the trial court concludes that in a particular case such an instruction is warranted, the following language may be used:

You have heard evidence that [name of defendant] fled or hid [after the [name the event]] [after being accused of a crime] [from the police]. It is up to you to decide whether s/he fled or hid. If you find s/he did so, you may consider his/her fleeing or hiding as tending to show feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that [name of defendant] may have had reasons to flee or hide that are fully consistent with innocence in this case.

If you find [name of defendant] fled or hid, you should consider such evidence along with all the other evidence in the case and give it as much weight as you think it deserves.

In the District of Columbia, a defendant’s flight or concealment is considered a variety of an ‘admission[ ] by conduct.’ ” King. v. U.S., 75 A.3d 113, 118 (D.C. 2013) (quoting Burgess v. U.S., 786 A.2d 561, 569 (D.C. 2001) and Proctor v. U.S., 381 A.2d 249, 251 (D.C. 1977)). “It is well settled in this jurisdiction that evidence of flight or disappearance can be admitted at trial as evidence of consciousness of guilt.” Smith v. U.S., 777 A.2d 801, 807 (D.C. 2001).

Nevertheless, before evidence of flight is admitted, the trial court must “carefully consider the facts … to determine whether the probative value of flight testimony is outweighed by the potential for prejudicial impact.” (Curtis) Smith v. U.S., 777 A.2d 801, 807 (D.C. 2001) (quotations omitted). “Accordingly, a flight instruction is improper unless the evidence reasonably supports the inference that there was flight or concealment and that the defendant fled because of consciousness of guilt and actual guilt of the crime charged.” Id. (quotations omitted). Where “the circumstances reasonably support an inference that [the defendant] fled because of consciousness of guilt of the charges … and the probative value of the flight evidence is not outweighed by the potential prejudicial impact on the jury, such evidence may be admitted, and the corresponding instruction may be given.” Id. at 808 (citing to a former version of Instruction 2.301 with approval). Where there is evidence indicating that flight may have been prompted by reasons other than consciousness of guilt, however, and that evidence has not been presented to the jury, the court must consider that evidence in determining the prejudicial impact of the flight evidence and the flight instruction versus its probative value. The court “must decline to give the standard flight instruction if: (1) particular information known by the court but not by the jury suggests another reason (i.e., a reason, unrelated to the charged offense(s), that the defendant would be motivated to flee from law enforcement (or from a particular law enforcement officer); and (2) there is no reason to think the jury would envision that other reason.” Headspeth, 86 A.3d at 566–67 (footnote omitted) (finding reversible error because trial court provided flight instruction where there was “sufficient meaningful evidence” of flight that may have been prompted by consciousness of guilt, but the jury was not presented with evidence—proffered to the trial judge—that the defendant had a “history” with the arresting officer that may have prompted his flight).

One area which the Committee recommends that judges consider carefully is the situation in which the defendant is alleged to have hid or fled before being identified as a suspect and the court must describe the event which the government alleges precipitated the flight or hiding. The Committee is agreed that the judge should not describe the event in language that would pre-judge whether a crime has been committed; for example, the judge should call an event a “shooting” not a “murder.”

 

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