4.2 SILENCE IN THE FACE OF ACCUSATION
A silence in the face of accusation instruction is a permissive inference instruction and, as such, the Committee recommends that it generally not be given.
Former Instruction 4.2 in the Manual of Model Criminal Jury Instructions For The Ninth Circuit (2003) read as follows:
Evidence has been introduced that statements accusing the defendant of the crime charged in the indictment were made, and that the statements were neither denied nor objected to by the defendant. If you find that the defendant actually was present and heard and understood the statements, and that they were made under such circumstances that the statements would have been denied if they were not true, then you may consider whether the defendant’s silence was an admission of the truth of the statements.
This prior instruction recites the factual findings the court must make in order to admit into evidence silence in the face of accusation. Generally, the sufficiency of these findings by the court is not the subject of a jury instruction. The significance of the silence should be left for the jury to determine without further instructions. Where there are factual issues that relate to the instruction, it may be appropriate to give the instruction if requested by the defendant. The text of the instruction is based on judicial interpretation and application of that rule. See, e.g., United States v. McKinney, 707 F.2d 381, 384 (9th Cir.1983); United States v. Sears, 663 F.2d 896, 904-05 (9th Cir.1981); United States v. Giese, 597 F.2d 1170, 1195–96 (9th Cir.1979).
Where a defendant is in custody, silence in the face of an accusatory statement does not constitute an admission of the truth of the statements. Doyle v. Ohio, 426 U.S. 610, 617-19 (1976). Such evidence should not be received, and no instruction will be necessary. Arnold v. Runnels, 421 F.3d 859, 869 (9th Cir.2005). On the other hand, when the accusatory statement is not made by a law enforcement official or when the defendant is not in custody, the instruction may be helpful.