TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1105. Consciousness of Guilt or Liability
Criminal Cases. In a criminal case, the State may offer evidence of a defendant’s conduct that occurred subsequent to the commission of the crime if:
the evidence reflects a state of consciousness of guilt;
the evidence supports the inference that the defendant committed the act charged;
the evidence is, with other evidence, together with reasonable inferences, sufficient to prove guilt; and
the inflammatory nature of the conduct does not substantially outweigh its probative value.
Evidence of consciousness of guilt alone is not sufficient to support a verdict or finding of guilt. The judge should instruct the jury accordingly.
Civil Cases. In a civil case, a party may offer evidence of another party’s conduct that occurred subsequent to the commission of the alleged act or acts that give rise to the cause of action if the evidence:
reflects a state of consciousness of liability of that party;
supports the inference that the party against whom the evidence is offered is liable; and
is, with other evidence, together with reasonable inferences, sufficient to prove liability.
Evidence of consciousness of liability alone cannot sustain the burden to establish liability. The judge should instruct the jury accordingly.
Rebuttal. The party against whom the evidence is offered has the right to offer evidence explaining the reason or reasons for the conduct to negate any adverse inference.
Conduct Within This Rule. Conduct which may reflect consciousness of guilt or of liability includes flight or concealment; the giving of a false name or username; the use of a different account to avoid detection; the changing of a username or display name after the conduct in issue; departure from a server or channel in which the conduct is recorded; the deletion or editing of messages bearing upon the conduct; the destruction, concealment, or fabrication of evidence; the intimidation of, or an attempt to influence, a witness; the failure to appear in response to a summons; the evasion of service; and a false statement made to an investigating officer or to the court.
Failure to Appear; Relation to 6 R. Stat. § 131.501. A finding under 6 R. Stat. § 131.501(d)(2) and Rid. R. Crim. P. 18.3(5)(b) that a defendant’s absence is voluntary and deliberate is made for the procedural purpose of authorising the trial to proceed. It is not evidence of consciousness of guilt, is not admissible before the fact finder, and shall not be communicated to a jury. The entry of a criminal default, the issuance of a default warrant, and a declaration of fugitive status are likewise not admissible as evidence of consciousness of guilt.
When a Failure to Appear May Be Received. The underlying conduct — a failure to appear in response to a summons, flight, or concealment — may be received under this rule only where the court has made the findings required by subdivision (7) upon evidence independent of the determination described in paragraph (a), and only subject to subdivision (8) and to Rid. R. Crim. P. 18.4(4), by which the defendant’s absence is not evidence of guilt.
Overlap with Spoliation. Where the conduct offered is the loss, destruction, or alteration of evidence, this rule and Rule 1101 may both apply. The court may admit the conduct as evidence of consciousness of guilt or liability under this rule, may impose a sanction under Rule 1101, or may do both; but the court shall not both permit an adverse inference under Rule 1101(8) and receive the same conduct as consciousness of guilt in a manner which places the same inference before the fact finder twice, and shall state upon the record the basis upon which it proceeds.
Exercise of a Right Not Within This Rule. Conduct which consists of the exercise of a right shall not be received as evidence of consciousness of guilt or of liability. Such conduct includes the invocation of the privilege against self-incrimination secured by Rule 505; a request for counsel or the retention of counsel; the refusal to consent to a search; silence in the face of an accusation by a law enforcement officer; the assertion of a privilege recognized by Title Five; an express waiver of the right to be present at trial made under 6 R. Stat. § 131.501(b)(1) and Rid. R. Crim. P. 18(c); and a motion to vacate a judgment entered in absentia made under 6 R. Stat. § 131.501(h) and Rid. R. Crim. P. 18.5. Evidence of such conduct is not admissible under this rule, and Rule 1107(2)(c)(v) forbids argument from it. This subdivision does not of itself bar evidence of a voluntary failure to appear, which subdivision (4)(b) governs.
Foundation. Before receiving evidence under this rule, the court shall determine under Rule 104(1) that the conduct occurred, that it occurred after the act in issue, and that it is capable of supporting the inference for which it is offered. Where the inference depends upon the defendant’s or party’s knowledge that a proceeding or investigation was pending or contemplated, the proponent shall offer proof sufficient to support a finding of that knowledge.
Balancing. Evidence under this rule remains subject to Rule 403, and the court shall exclude it where its probative value is substantially outweighed by the danger of unfair prejudice. In a criminal case the court shall apply Rule 1105(1)(d) in addition.
Instruction; Bench Trial. In a trial to a jury impanelled under Rid. R. Crim. P. 24.1 or Rid. R. Civ. P. 27.1, the court shall instruct that the fact finder may but need not draw the inference; that the conduct may have an innocent explanation; and that evidence of consciousness of guilt or of liability alone is not sufficient to support a finding. In a bench trial the court shall state in its findings the inference, if any, which it draws and the evidence upon which it rests, and shall observe the same limits.