Thursday, July 26, 2007

Is flight evidence of guilt?

Excerpts from Dill v. Indiana, Indiana Supreme Court

The defendant, Michael S. Dill, was convicted of burglary and conversion. He was acquitted of two counts of theft. The Court of Appeals affirmed. Dill v. State, 727 N.E.2d 22 (Ind. Ct. App. 2000). We granted transfer to address the defendant's claim that the trial court erred in instructing the jury that it could consider the flight of a person after the commission of a crime. The Court of Appeals observed that Indiana jurisprudence remains unclear about the use of such instructions.

In this appeal, the defendant argues, in part, that flight instructions are inherently improper. The State urges that the instruction correctly states the law, noting several recent cases in which this Court has failed to find error in the giving of a flight instruction. In Bellmore v. State, 602 N.E.2d 111 (Ind. 1992), we confronted an instruction that informed the jury that flight and other actions calculated to hide a crime, though not proof of guilt, are evidence of consciousness of guilt and are circumstances which may be considered by you along with other evidence. Id. at 119. Responding to the issues presented, we found that the instruction could not "'reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense.'" Id. (quoting Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344, 354 (1985)). Although we concluded that the specific language of the instruction, particularly in the context of the other instructions, did not constitute infringement of the defendant's right to due process of law, we nevertheless recommended against the future use of this instruction, but did not articulate our reasons or otherwise provide explicit guidance. Since Bellmore, we have repeatedly noted this recommendation but have not actually applied it to find error.

This instruction is inherently contradictory because it simultaneously informs the jury that a person's flight after the commission of a crime is "not proof of guilt" but yet is "evidence of consciousness of guilt" and "may be considered."

However, although evidence of flight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel's closing argument, it does not follow that a trial court should give a discrete instruction highlighting such evidence. To the contrary, instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved.

Over one hundred years ago the United States Supreme Court, reversing a murder conviction because the court's flight instruction was misleading, observed:

[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that "the wicked flee when no man pursueth; but the righteous are bold as a lion." Innocent men sometimes hesitate to confront a jury, --not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves.
Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051, 1056 (1896)

The Indiana Supreme Court affirmed Dill's conviction, in spite of the unwise use of the flight instruction by the trial court.

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