Flight and Jury Instructions
posted by Erik Lillquist
First, I would like to thank Dan Solove and his co-bloggers for inviting me to visit. I’ve been slow getting started. Blogging, at least for me it appears, seems to be a bit like my scholarship: it tends to go to the bottom of the list of things to do when administrative tasks pop-up. As an Associate Dean, I’ve actually found that the summers in many ways can be busier than much of the rest of the year, much to my disappointment, which explains why I have been initially silent.
I thought I would start my blogging career by talking about something I at least now a little about: jury instructions and how they relate to the way in which juries actually evaluate the infomration in front of them. The New Jersey Supreme Court last week decided State v. Ingram, a fascinating (well, at least to me) case about jury instructions. The intermediate court of appeals had reversed Ingram’s conviction for First-Degree Felony Murder and other related crimes on the ground that the trial court had erroneously instructed the jury as to the relationship between the mens rea required for accomplice liability and lesser-included offenses. The Supreme Court overturned this decision, but nonetheless affirmed the reversal of the conviction on the ground that the trial court had erroneoulsy given a “flight” instruction. It turns out that Ingram had shown up for a status conference two days before jury selection, but did not show up again. At the status conference, Ingram had learned for the first time that one of his co-defendants had pled guilty and would testify against him at trial.
The decision is interesting to me for two inter-related reasons. First, it is by no means clear to me that the instruction actually used really added anything to what the jury would have assumed anyway; in other words, real jurors were likely to draw exactly the inference that the supposedly erroneous instruction told them they could draw. Second, even if the instruction had some impact, I am not sure that it made a big difference in the outcome (although I think this point is more contestable). I’ll explain both of these points after the jump.
As to the instruction itself, here is what the trial court said: “Now, with respect to [defendant], the State alleges that [he] purposely failed to appear at this trial in order to avoid conviction. The question of whether [defendant] purposely failed to appear at this trial in order to avoid conviction is another question of fact for you to determine. You should understand that mere absence from a trial doesn’t in and of itself establish that the defendant purposely failed to appear in order to avoid conviction. If you find that the defendant, fearing that he would be convicted of the charges contained in the indictment, purposely failed to appear at this trial, then you may consider whether his failure to appear together with all the other evidence in this case is an indication or any proof of his consciousness of guilt. But keep in mind that failure to appear may only be considered as evidence of consciousness of guilt if you determine that the defendant’s purpose in failing to appear was to avoid conviction for the offenses charged in the indictment and not for any other purpose. It is for you to decide whether or not the evidence of failure to appear shows a consciousness of guilt and the weight to be given to such evidence in light of all the other evidence in the case.” (As an aside, the prosecutor also argued this point to the jury. But I do not think the prosecutorial argument is in any way critical, because I think that the argument would have been fine if the instruction had been fine.)
The New Jersey Supreme Court found that this was error, because there was no evidence, beyond Ingram’s mere absence, that his absence was prompted by consciousness of guilt. That sounds good, except that the instruction does not require the jury to find that he had fled out of consciousness of guilt, just that they could do so if they thought they facts demonstrated this. What the New Jersey Supreme Court was really saying, of course, is that mere absence is never enough from which to infer flight out of consciousness of guilt: indeed, the court explcitly says that Ingram’s absence, without other evidence, “is probative of little.”
Here’s the rub with that assertion, though. Well before the jury instructions, indeed right at the beginning of the trial, the jury had sent the judge a note asking where Ingram was. At that point in time, the judge instructed the jury that they should ignore Ingram’s absence. But in reality, how likely is that? The jury knew Ingram was not there, and the members of the jury (or anyone else, for that matter), I think, could really only draw one of three conclusions: (a) Ingram had fled out of consciousness of guilt (or at least consciousness that he was likely to be convicted); (b) he was absent because of some sort of emergency (say medical or family) or (c) he was waiving his right to appear for reasons that had nothing to do with his guilt or innocence (perhaps he was protesting perceived injustices). If the jury members gave it any thought, (b) is pretty unlikely, because if that was the case, the jury would reasonable (and correctly) assume that the trial would have been delayed so Ingram could attend. That just leaves (a)& (c), and there does not appear to have been a suggestion that there was any reason to suspect Ingram was merely waiving his right to appear. Thus, the jury on its own was likely to draw conclusion (a), and the instruction (and related prosecutorial argument) only served to confirm what they would have assumed. What’s more, it seems that their conculsion was correct and that his absence was likely to be at least more likely than not to point toward his guilt.
The problem, I think, is that the New Jersey Supreme Court has too cramped a vision of what information is before the jury at the trial. (This is a point that Ron Allen (Northwestern), among others, has been most vigorous in arguing in recent years.) The jury members all come in with their knowledge about the world and their own ways of processing information that is presented to them. The information presented by jury instructions (and even by formal testimony) may only be a minor part of the total amount of information the jury is using to decide a case. Here, Ingram’s absence in court was information that the jury had, and they were likely to process that information in a way that was adverse to Ingram, regardless of what the trial court said. By focusing too narrowly on the jury instruction, the New Jersey Supreme Court has an artificially narrow view of what is going on at the trial.
Even if you think that the jury instruction (and related prosecutorial argument) did effect the jury in a way that was adverse to Ingram, and that drawing an adverse inference to Ingram was unjustified, there still is the problem of whether the instruction changed the result. The Supreme Court points to the fact that another co-defendant of Ingram (Moore) did appear at trial and was acquitted, despite the fact that there was evidence that Moore was more intimately involved in the crime than Ingram. That’s true, except on the face of the opinion there is one big difference between Ingram and Moore: Ingram had confessed to the police his involvement (although he denied knowing that there was going to be a robbery or a homicide) and Moore did not; I could be wrong about this, but there is nothing I see in the opinion indicating Moore had confessed. Ingram’s admission of invlovement in the crime (along with the mere fact of his absence) it seems to me is a much more likely source of his conviction than the instruction to the jury or the prosecutor’s argument. What Ingram gets is a complete do-over on the trial, even though he is the one who decided to flee. It strikes me that this is a bit of an odd result.
August 3, 2008 at 12:07 am
Posted in: Criminal Procedure
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Responses (1)
Jef - August 2, 2008 at 6:31 pm
As a NJ attorney, I can tell you that the flight charge is very important and we do everything we can to keep it from the jury. In a case where guilt is not so clear cut, i.e. self-defense, a flight charge can go a long way.
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