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Name: People v. Lamer
Case #: D038958
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/31/2003

In a child sexual molestation case, it was error for the court to give, over objection, CALJIC No. 2.62, regarding the failure of a defendant to explain or deny evidence against him. The purported justification for the instruction was that the defendant had failed to explain why one of the children would falsely accuse him, but there were no facts or evidence in the People’s case regarding the child’s motivation to lie that could reasonably be said to be within the defendant’s knowledge. However, the error was harmless as the instruction itself states it would be unreasonable to draw an adverse inference if the defendant lacks the knowledge needed to explain or deny the evidence against him. Moreover, the evidence against appellant was strong and was corroborated, and the prosecution’s arguments never focused on defendant’s failure to deny adverse evidence, but instead argued defendant lied about such evidence.