Flight Cancellation

United States v. Mundy, No. 06-1190-cr (2d Cir. August 21, 2008) (Kearse, Leval, Cabranes, CJJ).

In this decision, the court all but eliminates the “flight as consciousness of guilt” jury instruction from Second Circuit jurisprudence.

The facts here were somewhat unusual because it was the the defendant who sought the instruction with respect to a co-defendant. The defendant was trying to bolster his argument that drugs and guns in they apartment where they were both arrested belonged to the other guy. Naturally, the government objected.

On appeal, the circuit held that district court did not err in refusing to give the instruction. But it also went on to map out the multitude of reasons why such an instruction, if objected to, should not be given, regardless of which party is seeking it.

First, there are many inferences that can be drawn from a person’s flight and, while the standard instruction points this out, it still gives “higher prominence to the inference of consciousness of guilt than to other competing inferences.” Moreover, this is just the kind of issue that counsel can and should discuss in summation: “Whether inferences should be drawn from the evidence, and if so, which inferences, are matters of logic and experience” and are not legal matters that need to be addressed in the jury charge.

Thus, “[a]bsent special circumstances, where there is an objection to the request for the instruction, it is not clear to us that any benefit from the giving of the instruction outweighs the potential harms.” The benefits of such a charge are minimal, since judges are no better at interpreting human behavior than jurors are. And the harms are considerable; in a flight instruction, the court gives its seal of approval to one particular inference, and risks “unwittingly … tak[ing] sides.”

Finally, the court notes that such instructions are a “vestige” of an earlier era, when it was “common practice” for judges to comment on the evidence. But, “[f]or good reason,” that practice has fallen out of favor.

The court closes by noting that there may be cases where a defendant might, for tactical reasons, agree to such an instruction. But if the instruction is objected to it is to be discouraged. “[W]e urge courts to think carefully whether the charge serves a useful and proper purpose or whether it simply gives court imprimatur to one side’s factual contention.”