2.10 Flight After Accusation/Consciousness of Guilt

Intentional flight by a defendant after he or she is accused of the crime for which he or she is now on trial, may be considered by you in the light of all the other evidence in the case. The burden is upon the government to prove intentional flight. Intentional flight after a defendant is accused of a crime is not alone sufficient to conclude that he or she is guilty. Flight does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But flight may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of the evidence of flight, you should consider that there may be reasons for [defendant]’s actions that are fully consistent with innocence.

It is up to you as members of the jury to determine whether or not evidence of intentional flight shows a consciousness of guilt and the weight or significance to be attached to any such evidence.

Comment(s)

(1) This instruction is based on United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983); accord United States v. Camilo Montoya, 917 F.2d 680, 683 (1st Cir. 1990); United States v. Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir. 1988); United States v. Grandmont, 680 F.2d 867, 869-70 (1st Cir. 1982). “Evidence of an accused’s flight may be admitted at trial as indicative of a guilty mind, so long as there is an adequate factual predicate creating an inference of guilt of the crime charged.” Hernandez-Bermudez, 857 F.2d at 52; see also United States v. Zanghi, 189 F.3d 71, 83 (1st Cir. 1999); United States v. Luciano-Mosquera, 63 F.3d 1142, 1156 (1st Cir. 1995).

(2) A flight instruction also can be given when the flight in question was from the crime scene. Luciano-Mosquera, 63 F.3d at 1153, 1156; United States v. Hernandez, 995 F.2d 307, 314-15 (1st Cir. 1993).

(3) If there is more than one defendant, the instruction should clearly specify that the absence of a particular defendant from the trial cannot be attributed to the others and is not to be considered in determining whether the others are guilty or not guilty. United States v. Rullan-Rivera, 60 F.3d 16, 20 (1st Cir. 1995); Hyson, 721 F.2d at 864-65.

(4) The First Circuit has highlighted the need to engage in a Fed. R. Evid. 403 evaluation before admitting evidence of flight. Hernandez-Bermudez, 857 F.2d at 54 (“[I]t is a species of evidence that should be viewed with caution; it should not be admitted mechanically, but rather district courts should always determine whether it serves a genuinely probative purpose that outweighs any tendency towards unfair prejudice.” (citation omitted)). Evidence of threats to a witness deserves the same treatment. See United States v. Rosa, 705 F.2d 1375, 1377-79 (1st Cir. 1983); United States v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982); United States v. Monahan, 633 F.2d 984, 985 (1st Cir. 1980); see also United States v. Rosario-Diaz, 202 F.3d 54, 70 (1st Cir. 2000).

(5) A similar instruction can be given when attempts to conceal or falsify identity might justify an inference of consciousness of guilt. See United States v. Otero-Mendez, 273 F.3d 46, 54 n.3 (1st Cir. 2001); United States v. Tracy, 989 F.2d 1279, 1285 (1st Cir. 1993).

(6) The First Circuit has also approved expanding the instruction to include “intentional hiding or evasion” when the evidence so warrants. United States v. Candelaria-Silva, 162 F.3d 698, 707 (1st Cir. 1998).