While we are all presumed innocent until PROVEN guilty beyond a reasonable doubt, to aid in the prosecution, in cerrtain cases, the courts will allow certain negative inferences to be drawn from a defendant’s otherwise innocent behavior.  The Conciousness of Guilt jury instruction allows a jury to speculate as to a defendant’s motives for what may be innecent actions.  The defense lawyer must diligently argue against speculation.

In Commonwealth v. Morris, the defendant appealed from his conviction of assault and battery by means of a dangerous weapon, arising from an altercation in which the defendant stabbed another man and then fled.  The SJC rejected the defendant’s claim that “the judge should not have given a consciousness of guilt instruction pertaining to flight, over the defendant’s objection, where he had proceeded on a theory of self-defense and claimed that his flight was the result of fear brought on by the circumstances of his situation.” The Court noted that the judge gave the standard, approved consciousness of guilt instruction, as codified in Instruction 3.580 of The Criminal Model Jury Instructions for Use in the District Court (2009), including the salutary reminders that there could be an innocent explanation for the defendant’s flight and that even if the defendant felt guilty, such feelings are sometimes experienced by people who are not, in fact, guilty. The SJC opined that this “thoughtful and well balanced” instruction properly gave the jury the option of considering the various potential explanations for the defendant’s flight and did not “unfairly bolster the Commonwealth’s case ¼ by negating the defendant’s claim of self-defense.”

Despite its affirmance of the defendant’s conviction, the SJC offered the following comment: “In those cases involving a question of self-defense where a defendant ¼ objects to the inclusion of a consciousness of guilt instruction in the jury charge, a judge should give careful consideration to whether the instruction would serve a useful and proper purpose and whether it should be given at all. If a judge does decide to give such an instruction over a defendant’s objection, then the judge should consider whether highlighting, or leading with, the portion of the instruction pertaining to the fact that innocent people do engage in the particular conduct at issue, and that such conduct does not necessarily reflect feelings of guilt but may be consistent with self-defense, would better preserve the neutrality of the instruction.”


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