CACI 3052 Use of Fabricated Evidence—Essential Factual Elements (42 U.S.C. § 1983)

California Civil Jury Instructions CACI

3052 Use of Fabricated Evidence—Essential Factual Elements (42 U.S.C. § 1983)

[Name of plaintiff] claims that [name of defendant] deliberately fabricated evidence against [him/her/nonbinary pronoun], and that as a result of this evidence being used against [him/her/nonbinary pronoun], [he/she/nonbinary pronoun] was deprived of [his/her/nonbinary pronoun] [specify right, privilege, or immunity secured by the Constitution, e.g., liberty] without due process of law. In order to establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] [specify fabricated evidence, e.g., informed the district attorney that plaintiff’s DNA was found at the scene of the crime];

2.That this [e.g., statement] was not true;

3.That [name of defendant] knew that the [e.g., statement] was not true; and

4.That because of [name of defendant]’s conduct, [name of plaintiff] was deprived of [his/her/nonbinary pronoun] [e.g., liberty].

To decide whether there was a deprivation of rights because of the fabrication, you must determine what would have happened if the [e.g., statement] had not been used against [name of plaintiff].

[Deprivation of liberty does not require that [name of plaintiff] have been put in jail. Nor is it necessary that [he/she/nonbinary pronoun] prove that [he/she/nonbinary pronoun] was wrongly convicted of a crime.]

Directions for Use

This instruction is for use if the plaintiff claims to have been deprived of a constitutional or legal right based on false evidence. Give also CACI No. 3000, Violation of Federal Civil Rights—In General—Essential Factual Elements.

What would have happened had the fabricated evidence not been presented (i.e., causation) is a question of fact. (Kerkeles v. City of San Jose (2011) 199 Cal.App.4th 1001, 1013 [132 Cal.Rptr.3d 143].)

Give the last optional paragraph if the alleged fabrication occurred in a criminal case. It would appear that the use of fabricated evidence for prosecution may be a constitutional violation even if the arrest was lawful or objectively reasonable. (See Kerkeles, supra, 199 Cal.App.4th at pp. 1010–1012, quoting favorably Ricciuti v. New York City Transit Authority (2d Cir. 1997) 124 F.3d 123, 130.)

Sources and Authority

“Substantive due process protects individuals from arbitrary deprivation of their liberty by government.” (Costanich v. Dep’t of Soc. & Health Servs. (9th Cir. 2010) 627 F.3d 1101, 1110.)

“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.” (Devereaux v. Abbey (9th Cir. 2001) 263 F.3d 1070, 1074–1075.)

“In order to prevail on a judicial deception claim, a plaintiff must prove that ‘(1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.’ ” (Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1240.)

“To establish causation, [plaintiff] must raise a triable issue that the fabricated evidence was the cause in fact and proximate cause of his injury. Like in any proximate cause analysis, an intervening event may break the chain of causation between the allegedly wrongful act and the plaintiff’s injury.” (Caldwell v. City & County of San Francisco (9th Cir. 2018) 889 F.3d 1105, 1115, internal citation omitted.)

“A plaintiff can prove deliberate fabrication in several ways. Most basically, a plaintiff can produce direct evidence of deliberate fabrication. Alternatively, a plaintiff can produce circumstantial evidence related to a defendant’s motive.” (Caldwell, supra, 889 F.3d at p. 1112, internal citations omitted.)

“ ‘No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice. Like a prosecutor’s knowing use of false evidence to obtain a tainted conviction, a police officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable “corruption of the truth-seeking function of the trial process.” [Citations.]’ ” (Ricciuti, supra, 124 F.3d at p. 130.)

“Even if there was probable cause to arrest plaintiff, we cannot say as a matter of law on the record before us that he would have been subjected to continued prosecution and an unfavorable preliminary hearing without the use of the false lab report and testimony derived from it. These are questions of fact which defendants appear to concede are material to the issue of causation, and which cannot be determined without weighing the evidence presented and conclusions reached at the preliminary hearing. Defendants’ statement of undisputed facts does not establish lack of causation as a matter of law.” (Kerkeles, supra, 199 Cal.App.4th at p. 1013.)

“There is no authority for defendants’ argument that a due process claim cannot be established unless the false evidence is used to convict the plaintiff. … [T]he right to be free from criminal charges, not necessarily the right to be free from conviction, is a clearly established constitutional right supporting a section 1983 claim.” (Kerkeles, supra, 199 Cal.App.4th at p. 1010.)

“There is no sound reason to impose a narrow restriction on a plaintiff’s case by requiring incarceration as a sine qua non of a deprivation of a liberty interest.” (Kerkeles, supra, 199 Cal.App.4th at p. 1011.)

“[T]here is no such thing as a minor amount of actionable perjury or of false evidence that is somehow permissible. Why? Because government perjury and the knowing use of false evidence are absolutely and obviously irreconcilable with the Fourteenth Amendment’s guarantee of Due Process in our courts. Furthermore, the social workers’ alleged transgressions were not made under pressing circumstances requiring prompt action, or those providing ambiguous or conflicting guidance. There are no circumstances in a dependency proceeding that would permit government officials to bear false witness against a parent.” (Hardwick v. County of Orange (9th Cir. 2017) 844 F.3d 1112, 1119.)

“[T]o the extent that [plaintiff] has raised a deliberate-fabrication-of-evidence claim, he has not adduced or pointed to any evidence in the record that supports it. For purposes of our analysis, we assume that, in order to support such a claim, [plaintiff] must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) Defendants continued their investigation of [plaintiff] despite the fact that they knew or should have known that he was innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.” (Devereaux, supra, 263 F.3d at p. 1076.)

“[T]he Constitution prohibits the deliberate fabrication of evidence whether or not the officer knows that the person is innocent. The district court erred by granting judgment as a matter of law to Defendants because, in this case involving direct evidence of fabrication, Plaintiff was not required to show that [defendant] actually or constructively knew that he was innocent.” (Spencer v. Peters (9th Cir. 2017) 857 F.3d 789, 800, internal citations omitted.)

“The Devereaux test envisions an investigator whose unlawful motivation is illustrated by her state of mind regarding the alleged perpetrator’s innocence, or one who surreptitiously fabricates evidence by using coercive investigative methods. These are circumstantial methods of proving deliberate falsification. Here, [plaintiff] argues that the record directly reflects [defendant]’s false statements. If, under Devereaux, an interviewer who uses coercive interviewing techniques that are known to yield false evidence commits a constitutional violation, then an interviewer who deliberately mischaracterizes witness statements in her investigative report also commits a constitutional violation. Similarly, an investigator who purposefully reports that she has interviewed witnesses, when she has actually only attempted to make contact with them, deliberately fabricates evidence.” (Costanich, supra, 627 F.3d at p. 1111.)

“[N]ot all inaccuracies in an investigative report give rise to a constitutional claim. Mere ‘careless[ness]’ is insufficient, as are mistakes of ‘tone.’ Errors concerning trivial matters cannot establish causation, a necessary element of any § 1983 claim. And fabricated evidence does not give rise to a claim if the plaintiff cannot ‘show the fabrication actually injured her in some way.’ ” (Spencer, supra, 857 F.3d at p. 798, internal citations omitted.)

“In light of long-standing criminal prohibitions on making deliberately false statements under oath, no social worker could reasonably believe that she was acting lawfully in making deliberately false statements to the juvenile court in connection with the removal of a dependent child from a caregiver.” (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1113 [190 Cal.Rptr.3d 97], footnotes omitted.)

“[P]retrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification.” (Manuel v. City of Joliet (2017) — U.S. — [137 S.Ct. 911, 918, 197 L.Ed.2d 312], internal citation omitted.)

“Deliberately fabricated evidence in a prosecutor’s file can rebut any presumption of prosecutorial independence [i.e., that filing of a criminal complaint immunizes investigating officers because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time]. … In sum, if a plaintiff establishes that officers either presented false evidence to or withheld crucial information from the prosecutor, the plaintiff overcomes the presumption of prosecutorial independence and the analysis reverts back to a normal causation question.” (Caldwell, supra, 889 F.3d at p. 1116, internal citation omitted.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901 et seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State Law—Law Enforcement and Prosecution, ¶ 10.05 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil War Civil Rights Statutes, § 113.14 (Matthew Bender)