Sometimes, but silence alone does not make someone else’s accusation your admission. Under California Evidence Code section 1221, the prosecution must have a basis to show that you knew what the other person said and, by your words or conduct, adopted it or showed you believed it was true. Whether a pause or uncertain answer has that meaning depends on the exact exchange and setting. The court cannot simply treat every unanswered accusation as agreement.
What was said, and what did you actually do?
Start with the complete statement, not just the accusation summarized in a report. Did it accuse you of something, or merely describe someone else’s conduct? Could you hear and understand it? What did you say or do next, and how much of the conversation was captured? A recording, transcript, witness account and surrounding messages may tell different parts of that story. A direct accusation is not always necessary, but there must be a reason to infer adoption from your response or conduct. (People v. Carter; People v. Davis)
| Part of the exchange | Question for counsel |
|---|---|
| The other person’s words | What exact proposition is the prosecution saying you adopted? Did it concern you at all? |
| Your opportunity to respond | Did you hear and understand it, and was this a setting in which a denial would normally be expected? |
| Your words, silence or conduct | Was your response an agreement, a denial, an attempt to change the subject, or something that has more than one plausible meaning? |
| The surrounding setting | Who was present, was the exchange private or with police, and had you invoked or appeared to rely on a right to remain silent? |
The California Supreme Court has required courts to assess the particular statement and response, especially when a recording contains several excerpts. In Davis, it described the need for enough evidence that the accused heard and understood the words under circumstances normally calling for a response and then adopted them as true. In Carter, a third person’s statement that did not implicate the accused gave him nothing to deny. These decisions do not turn every awkward reply into a confession. (Davis; Carter)
Why the police or rights setting matters
An accusation during a police interview raises a different question from a private conversation. In People v. Jennings, the court examined a joint interview in which the defendant had waived his Miranda rights, continued participating and made affirmative admissions. It did not establish that every postwarning pause is an adoptive admission. The court also recognized that an express denial does not adopt the accusation and that circumstances suggesting reliance on the right to silence may defeat the usual inference from silence. Custody, a warning, a waiver, an invocation, and the defendant’s actual words need to be examined together.
Under Evidence Code section 403, the party offering evidence dependent on a preliminary fact must produce enough evidence for the court to find a jury could reasonably find that fact. If such evidence is admitted, the court may—and on request must—instruct the jury to decide the preliminary fact and disregard the evidence unless it finds that fact. This is a foundation question, not a promise that a particular recording will be admitted or excluded.
Give your defense lawyer the most complete available recording, transcript, messages or witness account. Identify each accusation, your exact response or pause, what was happening before and after it, and any police warning or invocation. Counsel can evaluate the proposed use of each excerpt under section 1221 and the rights setting without assuming the prosecutor’s summary supplies the whole exchange. To discuss a pending California criminal case, call the Law Offices of David S. Chesley at (800) 755-5174.