WPIC 6.41 Out of Court Statements by Defendant

This instruction must be given upon request of a defendant when, after a CrR 3.5 hearing, the trial court has ruled that an out of court statement is admissible and the defense has raised the issue whether the out of court statement was voluntary through the evidence offered or through cross-examination of witnesses.

CrR 3.5(d)(4).

A similar instruction was approved in State v. Huston, 71 Wn.2d 226, 236, 428 P.2d 547 (1967). An instruction as to weight and credibility of a confession is a procedural right rather than an absolute constitutional right. A defendant cannot fail to request this instruction and then assign error to the court's failure to give it. State v. Booth, 75 Wn.2d 92, 449 P.2d 107 (1968); State v. Taplin, 66 Wn.2d 687, 691, 404 P.2d 469 (1965). The instruction is required only when the defendant challenges the voluntariness of a confession to a law enforcement official. The instruction is unnecessary when the prosecution offers an alleged confession to a private person. State v. Smith, 36 Wn.App. 133, 672 P.2d 759 (1983).

Although the instruction is normally used when the defendant challenges the voluntariness of a confession, the instruction may also be used when the prosecution offers an alleged confession and the defendant denies making the confession. State v. Hubbard, 37 Wn.App. 137, 679 P.2d 391 (1984), reversed on other grounds, 103 Wn.2d 570, 693 P.2d 718 (1985).