(July 2001)

by Thomas Lundy

    This is the second in a series of articles addressing the role of standard pattern instructions in American criminal jurisprudence. It is the premise of these articles that judges and practitioners are overly deferential to the standard pattern instructions to the point that jury instruction practice often is almost entirely removed from the adversarial arena. It is hoped that these articles will provide conceptual, legal and practical ideas for reversing the trend toward "jury instruction by number" and returning vigorous pro-active advocacy to criminal jury instruction practice.

    Part I discussed the inherent limitations of pattern jury instructions and argued that trial judges have the power and duty to modify or supplement such instructions when appropriate.

    In recognition of the practical reality that judges will always heavily rely on the standard pattern instructions, Part II attempts to provide strategies for persuading the judge to give requested non-pattern instructions..

    "Preparation is still the greatest technique for winning." (Larry S. Pozner, "Lessons Learned," The Champion (NACDL 6/99) p. 7.) And, an essential part of such preparation is early consideration of jury instructions. The chances of winning later battles over jury instructions will be greatly increased if the ground work is laid before and during trial.

    This is so because "educating" the judge is crucial to a successful instruction argument. This educational process is more likely to be effective if it is done as part of a consistent, integrated defense strategy rather than a last minute request that comes without prior notice. "Litigators who desire a special ... instruction are less likely to get it if they simply wait for the end of the case and then request it. The best means for persuading a judge [to give a special instruction] is to wage a case-long campaign of education. Pretrial motions, offers of expert testimony [footnote omitted], and the cross-examination process should all have as their subsidiary goal the acceptance of a request for [a special] instruction." [Footnotes omitted.] (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12.2, p. 330.)

    Part I of this series discussed how a jurisdiction’s patter instructions, no matter how entrenched, are not sacrosanct. (See Part I.) Often, specific references in this regard can be found in the pattern instruction book itself. (Ibid.) Additionally, domestic case law and/or federal constitutional jurisprudence can provide authority in support of the defendant’s right to modify and supplement the standard pattern instruction. (See Section 3a, below.)

    If the pattern instructions do not cover the issue addressed by the requested instruction then there should be a right to the instruction so long as it is legally authorized and factually appropriate. Even states with the most entrenched and dominant pattern instruction (e.g., Illinois) recognize that the pattern instructions may be supplemented to cover matters not addressed in the pattern instructions.

    For example, most pattern instruction books do not have an instruction on the defense theory of third-party guilt. Yet the defense that a person other than the accused committed the crime is one which should be available in every jurisdiction. (See generally, U.S. v. Calle (11th Cir. 1987) 822 F2d 1016, 1021 [third-party guilt is substantive defense which cannot be limited by the trial court pursuant to rules governing impeachment]; United States v. Stevens (3rd Cir.1991) 935 F2d 1380, 1401-03; United States v. Armstrong (9th Cir.1980) 621 F2d 951, 953; Larimore v. State (AR 1994) 877 SW2d 570, 575.) Hence, when such a defense is supported by the facts, a defense theory instruction should be given notwithstanding the absence of such an instruction in the pattern instruction book. (See e.g., Hill v. State (TX 1979) 585 SW2d 713.)

    Of course, counsel must be ready to answer the contention that the requested instruction is covered by other more general instructions which are already being given. For example, the judge may suggest that the third-party guilt instruction is covered by the general instruction requiring the prosecution to prove guilt beyond a reasonable doubt. Rejoinders to such objections could include the following:

    First, when it comes to defense theories there is abundant domestic law and federal constitutional jurisprudence supporting the right to an instruction. (See e.g, O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.03 [Requests For Instructions] p. 468-69 (West, 5th ed. 2000) ["party is entitled to have proper requested instructions presenting the party’s theory of the case to the jury"]; see also FORECITE National™ 250.1.1 [Litigant’s Right To Instruction On Theory Of Case]; FORECITE National™ 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction]; FORECITE National™ 300.6.1 [Constitutional Claims: Failure To Instruct Upon Defenses]; FORECITE National™ 300.6.2 [Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation].)

    "[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; see also Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739; McKenzie v. State (TX 1975) 521 SW2d 637, 639 [court is required, when a proper request is made, to instruct on every defensive issue raised by the evidence].)

    Second, analogous pattern instructions may support the argument in favor of a supplemental instruction. For example, most pattern instructions include an alibi instruction which is closely analogous to the defense of third-party guilt. If instruction on alibi is allowed, then logically instruction on third-party guilt should also be allowed.

    Another major reason for modifying or supplementing standard pattern instructions is if they are incorrect, inaccurate or misleading.

    For example, because pattern instruction books are rarely updated more than once a year, there often are changes in the law not reflected in the pattern instructions.

    And, even if an instruction has been accepted for years this doesn’t mean it is correct. For example, most standard pattern instructions on specific defense theories such as intoxication and tell the jury that it "may" consider the evidence presented by the defense. This permissive language is incorrect and misleading because it implies that the jury can ignore the defense evidence without considering it. (See Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence]; see also FORECITE National™ 251.4.2.4 [Good Character Evidence: Jury "Must" Consider]; FORECITE National™ 256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider]; FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].) 

    The articulation of legal support for an instruction is challenging. There will not always be domestic authority directly on point one way or the other. In this regard it may be necessary to argue by analogy or to rely on authority from other jurisdictions.

    Special consideration should be given to federal constitutional principles that may apply such as in the case of a defense theory instruction. (See FORECITE National™ 250.1.3 [Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction]; FORECITE National™ 300.6.1 [Constitutional Claims: Failure To Instruct Upon Defenses]; FORECITE National™ 300.6.2 [Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation].)

    Even when state law is directly to the contrary federal constitutional principles may provide a viable argument. The U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Green v. Georgia (1979) 442 US 95 [99 SCt 2150; 60 LEd2d 738]; Davis v. Alaska (1974) 415 US 308 [94 SCt 1105; 39 LEd2d 347]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; Washington v. Texas (1967) 388 US 14 [87 SCt 1920; 18 LEd2d 1019].)

    5.    Emphasize The Factual Predicate For The Instruction

    The amount of evidence required to justify an instruction request is minimal. Some jurisdictions use the "any evidence" standard (see e.g., U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 47 [criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof, no matter how tenuous the defense may appear to the trial court]; State v. Powell (NJ 1980) 419 A2d 406, 412 ["very slight evidence on a theory of defense will justify the giving of an instruction"].) Other jurisdictions require evidence deserving of consideration or substantial evidence. (See e.g., U.S. v. Perez (7th Cir. 1996) 86 F3d 735, 736; People v. Barrick (CA 1982) 33 C3d 115, 132 [187 CR 716] [internal citations and quotation marks omitted].)

    Hence, under either standard, the evidentiary threshold is low and counsel should make sure that the trial judge understands this.

    In deciding whether there is sufficient evidence to instruct, the trial court may not evaluate the credibility of witnesses. (See People v. Wickersham (CA 1982) 32 C3d 307, 324-25 [185 CR 436].) Hence, if there is evidence in support of the instruction, the instruction must be given regardless of the source of the evidence. (See e.g., People v. Castillo (CA 1987) 193 CA3d 119, 125-26 [238 CR 207]; see also U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 493-94.)

    "It is not for the judge, but rather for the jury, to ‘appraise the reasonableness or unreasonableness of the evidence’ relating to the [defense] theory." (U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104, 1117; see also People v. Marshall (CA 1996) 13 C4th 799, 847 [55 CR2d 347].)

    Courts review the evidence "in a light most favorable [to the proponent of the instruction]" in determining whether or not the instruction should be given. (State v. Thiel (ND 1987) 411 NW2d 66, 67; see also Cobo v. Raba (MO 1997) 481 SE2d 101, 104 ["trial court must instruct the jury on a claim or defense if there is substantial evidence, when viewed in the light most favorable to the proponent, of the claim or defense"]; Smith v. Buckhram (NC 1998) 372 SE2d 90, 94 [evidence must be viewed "in the light most favorable to the proponent"].)

    Thus, where the evidence at trial, viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense and must do so when requested. (See U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154; State v. O'Daniel (HI 1980) 616 P2d 1383, 1390; State v. Colbert (KS 1989) 769 P2d 1168, 1173; People v. Farnsworth (NY 1985) 481 NE2d 552, 552; Larsen v. State (WI 1978) 271 NW2d 647, 650; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:03.) [Charge The Jury-Necessity To Charge] (West, 1999).)

    "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." (People v. Flannel (CA 1979) 25 C3d 668, 685 [160 CR 84]; see also People v. Gaines (NY 1994) 83 NY2d 925, 927.)

    It is not necessary that the evidence authorizing an instruction be affirmatively introduced by the defendant. (See Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.04 (b), p. 12 [Affirmative Instructions On Theory Of Defense - Sufficiency Of The Evidence] (Anderson, 4th ed. 1999).) The trial court has a duty to instruct on defense theories even when the evidence is offered by the prosecution. (See U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 493 [prosecution introduced defendant’s pretrial statements as to alibi].)

    The defendant’s testimony, even if "less than convincing," is sufficient to require instruction upon a lesser included offense even without a request, sua sponte. (See People v. Turner (CA 1990) 50 C3d 668, 690 [268 CR 706]; People v. Best (CO 1983) 665 P2d 644, 646; Kansas v. Dixon (KS 1992) 843 P2d 182, 184; State v. Colbert (KS 1989) 769 P2d 1168, 1173.) It follows a fortiori that "disbelief of a defendant's version of the facts is not ... a reason for rejecting a requested instruction [since] it is the jury's function to weigh the evidence and determine credibility." (People v. Sullivan (CA 1989) 215 CA3d 1446, 1452 [264 CR 284]; see also People v. Jeffers (CA 1996) 41 CA4th 917, 924 [49 CR2d 86]; People v. Phillips (IL 1989) 541 NE2d 1298, 1305; Hunter v. State (TX 1983) 647 SW2d 657, 658.)

    Often the availability of an instruction on a defense is measured by the affirmative evidence of that defense presented by the defendant. However, the principle is well recognized that intent may be inferred from the surrounding circumstances. (See Morissette v. U.S. (1952) 342 US 246, 276 [72 SCt 240, 96 LEd 288]; State v. Tomasko (CT 1996) 681 A2d 922, 926; LaFave & Scott Substantive Wharton’s Criminal Law (West 1986) § 3.5(f); MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:31 [Proof Of Intent] (Micpel, 1999); 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.08 [Inferring Required Mental State] (1991); see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.13 [Failure To Follow A Lawful Order Of The Court] (West, 5th ed. 2000).) Accordingly, whether the defendant had the required subjective mental state for a particular defense may be inferred from the circumstances even when no affirmative defense evidence has been presented.

    As with any other important adversarial proceeding, technique and strategic planning can help achieve better results at the jury instruction conference. Here are some ideas:

    Given the bias in favor of the standard pattern instructions it is unlikely that the judge will agree to modify or supplement a pattern instruction without persuasive oral argument on the issue.

    In some jurisdictions, the denial of a requested instruction is proper so long as any portion of the instruction is incorrect. (See Wharton’s Criminal Procedure (West, 13th ed. 1989) §§ 465, pp. 16-17; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS I(A)(2) [Motions-Severance Of Portions Of Defendant’s Requested Instructions] (South Carolina CLE, 1994).) Accordingly, there may be a danger that an instruction with multiple legal propositions may be properly refused if any single one of those propositions is invalid. (But see Section 6d, below.)

    To avoid this risk, and to focus your arguments, each instructional issue should be submitted as a separate legal proposition.

    Like any other phase of litigation, jury instructions require that tactical decisions be made. "Where existing doctrine is clear and well grounded, the process of drafting proposed instructions requires only careful research and clear, precise writing. Where doctrine is unclear or where there is reason to question its current validity, criminal defense attorneys will want to request instructions that resolve questions in favor of the defense. Implementing this approach may require a tactical choice between requesting the instructions most favorable to defendant or requesting an instruction which is not as favorable but is more likely to be accepted, either at trial or on appeal." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B)(2)(b)(3) [Tactical Decisions] (South Carolina CLE, 1994).) A useful approach in such circumstances is to request the most favorable instruction and also submit (or hold in reserve) the less favorable instruction as an alternative for use if the more favorable request is denied. (Ibid..)

    For example, a standard instruction dealing with the testimony of the defendant might invite the jury to conclude that his "vital interest in the outcome of the case" may cause the defendant not to tell the truth. A viable fall-back position for the defense attorney who fails to convince the judge that the instruction ought not to be given at all (or that it is adequately covered by the general instruction on credibility of witnesses), is that the court should omit the word "vital" from the phrase "vital interest in the outcome of the case." (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §§ 131.101[6][d].)

    A number of jurisdictions recognize the judge’s duty to correct defective instruction requests arising from the trial court's ultimate responsibilities to assure that the jury is correctly instructed. (E.g., People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321] [judge must tailor instruction to conform with law rather than deny it outright]; State v. Sawyer (HI 1998) 966 P2d 637, 642 [trial court has the duty either to correct any defects or to fashion its own instructions]; Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85 [when a principle of law is materially vital to a defendant, it is reversible error for the trial court to fail to correct a defective instruction or verdict form when the error is patent or the subject of a proper objection even if the defendant fails to proffer alternative instructions or verdict forms]; State v. Lambert (WV 1984) 312 SE2d 311 [ultimate responsibility to ensure that jury is correctly instructed in criminal cases rests with the trial court].)

    This duty may require the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (See People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]; see also Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107 [because request as formulated by plaintiff omitted the standard of proof, the judge had the responsibility to determine the applicable standard of proof]; People v. Parsons (CO 1980) 610 P2d 93, 94; State v. Bunce (NM 1993) 861 P2d 965 [inadequate defense request on mistake of fact did not relieve trial court of obligation to correctly instruct on this defense theory]; Williams v. State (TX 1982) 630 SW2d 640, 643 [although a specially requested charge may be defective, it still may serve to call the court’s attention to the need to charge on a defensive issue]; Morse v. Commonwealth (VA 1994) 440 SE2d 145 ["Trial court should have prepared its own instruction or required counsel to submit a new instruction that correctly defined the defense"]; State v. Dellinger (VA 1987) 358 SE2d 826 [failure of defense counsel to offer a sexual abuse instruction was such plain error the trial court should have intervened to avoid prejudice to the defendant].)

    In short, "[w]hen the defendant submits a theory of the case instruction the trial court is responsible for making the necessary alterations to the instruction, assuming arguendo that the theory on the whole was legally sound and that [defendant] presented sufficient evidence to justify the instruction." (U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132 [trial court erred in failing to correct defendant’s defective instruction on necessity].)

    The foregoing are only a few examples of strategies and techniques which can be employed when trying to obtain modified or supplemented pattern instructions. By using these and other strategies counsel can be an effective advocate in the jury instruction arena notwithstanding the entrenchment of the standard pattern instructions.

    [Coming next: Part III: Strategies For Winning The War Even If You Lose The Jury Instruction Battle]

RETURN TO TABLE OF CONTENTS

ADDITIONAL MATERIAL

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 11 - CHAPTER 250

PRACTICE NOTE: "A party is entitled to have proper requested instructions presenting the party’s theory of the case to the jury. [Citations.]" (O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.03 [Requests For Instructions] p. 468-69 (West, 5th ed. 2000).) "The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party's theory to the particular case. [Citations.]" (Soule v. General Motors Corp. (CA 1994) 8 C4th 548, 572 [34 CR2d 607]; see also Logacz v. Brea Community Hospital, et al. (CA 1999) 71 CA4th 1149 [84 CR2d 257]; State v. Beigenwald (NJ 1991) 594 A2d 172, 195-197 [applying this rule directly to capital trials].)

    Under this rule "a criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in proof, no matter how tenuous the defense may appear." (United States v. Dove (2nd Cir. 1990) 916 F2d 41, 47; see also U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 ["jury must be instructed as to the defense theory of the case"]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; State v. O'Daniel (HI 1980) 616 P2d 1383, 1390; People v. Miller (IL 1994) 630 NE2d 1125, 1130; State v. Selgado (NM 1966) 413 P2d 469, 470; Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-7(a)(2), p. 302 ["The duty to instruct on a defense theory is triggered even if the "evidence forming the foundation for the defense to the charge is wobbly, weak, insufficient, inconsistent, of doubtful credibility, and consists solely of a defendant’s own testimony...."].)

    In sum, "[i]t is reversible error for the court to refuse a request to instruct as to defendant's theory of the case if there is evidence to support it." (U.S. v. Leach (1st Cir. 1970) 427 F2d 1107, 1112.)

    See also FORECITE National™ 300.4.2 [Failure To Instruct Or Directed Verdict On Element Of Charge].  Available to subscribers.  To become a subscriber, click here.

    See also FORECITE National™ 250.1.2 [Constitutional Right To Present A Defense As Ground For Defense Theory Instruction].  Available to subscribers.  To become a subscriber, click here.

    See also FORECITE National™ 250.1.3 [Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction].  Available to subscribers.  To become a subscriber, click here.

    See also FORECITE National™ 300.5.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].  Available to subscribers.  To become a subscriber, click here.

    See also FORECITE National™ 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].

See 6th Circuit Pattern Jury Instructions - Criminal 6.01.  Available to subscribers.  To become a subscriber, click here.

See also 8th Circuit Model Jury Instructions - Criminal 9.05.  Available to subscribers.  To become a subscriber, click here.

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 11 - CHAPTER 250

PRACTICE NOTE: Jurisdictions which purport to preclude any instructions which comment on specific evidence or advance particular theories may be subject to attack based on due process fairness principles. (See Wardius v. Oregon (1973) 412 US 470, 472 [93 SCt 2208; 37 LEd2d 82]; see also FORECITE National™ 6.2.1 [Instructions Must Not Be Argumentative]. Available to subscribers.  To become a subscriber, click here.) For example, ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d § 608 [Defenses-Alibi] (Lexis, 2nd ed. 1997), rejects the defendant’s right to a specific instruction on alibi because it is "a position the defendant may assert to create a reasonable doubt of his guilt. Therefore, no instruction should be given." However, in ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d § 205 [Evidentiary Instructions-Statutory Presumption] (Lexis, 2nd ed. 1997), the prosecution is specifically permitted to obtain instruction on specific evidentiary "presumptions" which really are no more than comments on specific evidence and instruction on specific prosecution "positions."

    Thus, the failure to provide specific instruction on a defense theory may result in unbalanced instruction which favor the prosecution. "The instruction must adequately express the defense theory." (Citation.) "In some cases, specialized facts will be presented calling for an instruction tailored to those facts. Standard instructions in such instances likely will be insufficient and may, if confined merely to what the prosecution needs to prove, be unbalanced. [Citations.]" (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.01 [Defendant’s Theory Of Case-Note] (Bar Association of the District of Columbia, 4th ed. 1993); see also Stack v. U.S. (DC 1986) 519 A2d 147, 154-56 [instruction on general denial, self defense and proximate cause did not adequately express defense theory of independent cause].)

    In sum, federal constitutional principles of reciprocal fairness and due process should permit the defendant to obtain specific evidentiary instructions and defense theory instructions upon request. (See also FORECITE National™ 300.6 [Inadequate Instruction On Defense Or Defense Theory]. Available to subscribers.  To become a subscriber, click here.)

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 16 - CHAPTER 300

PRACTICE NOTE: "[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54] [citing Stevenson v. United States (1896) 162 US 313, 332 [16 SCt 839; 40 LEd 980] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 208 [36 LEd2d 844; 93 SCt 1993].)

    Failure to instruct on the defendant's theory of the case where there is evidence to support the instruction violates the defendant's right to present a defense, to compulsory process and to trial by jury as guaranteed by the 6th Amendment and to due process under the 14th Amendment. (See e.g., U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748 ["[a]n accused is entitled to an instruction on his theory of defense so long as the theory is a valid one and there is evidence in the record to support it." [citation]]; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-79; U.S. v. Roberts (7th Cir. 1994) 22 F3d 744; U.S. v. Boykins (7th Cir. 1993) 9 F3d 1278, 1285; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 570-71 [error in failing to give alibi instruction in bank robbery prosecution amounted to failure to instruct jury on defendant's theory of case, and was reversible per se]; U.S. v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; U.S. v. Washington (9th Cir. 1987) 819 F2d 221, 225 [the district court must give an instruction regarding any legitimate theory of defense that is supported by the evidence, and a failure to do so is reversible error]; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02 ["...[T]he principle [is] established in American law ... that a defendant is entitled to a properly phrased theory of defense instruction if there is some evidence to support that theory...[citations]."]; Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240 [failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case]; U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 ["jury must be instructed as to the defense theory of the case"]; James v. Reese (9th Cir. 1976) 546 F2d 325, 327; U.S. v. Jenkins (10th Cir.1983) 701 F2d 850, 858 [where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error]; Eugene v. State (AL 1995) 661 So2d 797, 799; State v. Strayhand (AZ 1996) 911 P2d 577, 593 [when a defense theory is reasonably supported by the evidence, failure to instruct as to that theory is reversible error]; People v. Nunez (CO 1992) 841 P2d 261, 267 [failure to give alibi instruction reversible error]; People v. Caulley (MI 1993) 494 NW2d 853, 860 [failure to instruct on defense theory of involuntary intoxication]; State v. Matejka (NE 1971) 183 NW2d 917, 919; Ruland v. State (NV 1986) 728 P2d 818, 819 [failure to instruct on a defense theory totally removes it from the jury's consideration and constitutes reversible error]; State v. Brown (NM 1996) 931 P2d 69, 77; McKenzie v. State (TX 1975) 521 SW2d 637, 639 [court is required, when a proper request is made, to charge on every defensive issue raised by the evidence]; Virgilio v. State (WY 1992) 834 P2d 1125, 1130; see also, FORECITE National™ 296.2.2.3 [Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory] Available to subscribers.  To become a subscriber, click here; see also, FORECITE National™ 250.4.5 [Defense Theories: Failure To Instruct As Creating A Conclusive Presumption] Available to subscribers.  To become a subscriber, click here.)

    Moreover, "a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor...." (People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; see also Washington v. Texas (1967) 388 US 14, 19 [18 LEd2d 1019; 87 SCt 1920]; Davis v. Alaska (1974) 415 US 308 [39 LEd2d 347; 94 SCt 1105]; see also FORECITE National™ 300.4.1 [Failure To Instruct Or Directed Verdict On Element Of Charge] Available to subscribers.  To become a subscriber, click here.; see also, FORECITE National™ 300.4.2 [Withdrawal Of Factual Issue May Constitute A Directed Verdict] Available to subscribers.  To become a subscriber, click here.) The failure to instruct on the defense theory encompassed by the defendant's evidence undermines the very constitutional rights which allow the evidence to be presented to the jury. (See e.g., Hicks, 748 F2d at 857-58 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case which dilutes the jury's consideration of the issues and directs a verdict against the defendant].)

    In sum, "[w]hen properly requested, a defendant is entitled to a charge on every defensive theory raised by the evidence, regardless of the strength of the evidence or whether it is controverted." (Hudson v. State (TX 1997) 956 SW2d 103, 104.) "It is reversible error for the court to refuse a request to instruct as to defendant's theory of the case if there is evidence to support it." (U.S. v. Leach (1st Cir. 1970) 427 F2d 1107, 1112.)

    See also FORECITE National™ 250.1.1 [Litigant’s Right To Instruction On Theory Of Case]. 

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement  The Pattern Instructions: (3(a))  Explain Why The Pattern Instruction Is Inadequate: The Instruction Doesn’t Cover The Point

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement  The Pattern Instructions: (4)  Articulate The Specific Legal Principles Which Are The Basis For The Instruction

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 16 - CHAPTER 300

PRACTICE NOTE: The right of a criminal defendant to present a defense and witnesses on his or her behalf is a fundamental element of due process guaranteed under the 5th and 14th Amendment to the United States Constitution. (See Webb v. Texas (1972) 409 US 95, 98 [34 LEd2d 330; 93 SCt 351]; Washington v. Texas (1967) 388 US 14, 19 [18 LEd2d 1019; 87 SCt 1920; see also People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; People v. Schroeder (CA 1991) 227 CA3d 784, 787 [278 CR 237] [noting the "right of a criminal defendant to present a defense and witnesses on his or her behalf is a fundamental element of due process guaranteed under the 14th Amendment to the United States Constitution"].)

    The defendant's right to present a defense also derives from the 6th and 14th Amendment. (See People v. Cudjo (CA 1993) 6 C4th 585, 637-43 [25 CR2d 390], Kennard, J. dissenting, for a discussion of the defendant's constitutional right to present a defense under the compulsory process and due process clauses of the federal constitution]; see also Richmond v. Embry (10th Cir. 1997) 122 F3d 866, 871 ["...the right to present defense witness testimony...is a right arising not under the 6th Amendment's confrontation clause but is instead one arising under the 5th and 14th Amendment right to due process and the 6th Amendment right to compulsory process"]; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394 [right to present defense witness testimony resides in the compulsory due process clause and the due process clause of the federal constitution]; Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 2-2(d) [6th Amendment right to confrontation]; and § 2-2(e) [6th Amendment right to compulsory process]; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999)§ 45-2 [defendant’s right to call witnesses].)

    The failure to instruct on the defense theory encompassed by the defendant's evidence undermines the constitutional rights to compulsory process, due process and trial by jury which allow the evidence to be presented to the jury. (See e.g., Conde v. Henry (9th Cir. 1999) 198 F3d 734 [right to present evidence is meaningless if jury is not required to consider it]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854 supra, [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case which dilutes the jury's consideration of the issues and directs a verdict against the defendant].)

    See also FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].  Available to subscribers.  To become a subscriber, click here.

See Capital Punishment Handbook [4.1.4 a. Right To Confront And Cross-Examine Witnesses: General Principles And Authorities].  Available to subscribers.  To become a subscriber, click here.

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement  The Pattern Instructions: (3(a))  Explain Why The Pattern Instruction Is Inadequate: The Instruction Doesn’t Cover The Point

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement  The Pattern Instructions: (4)  Articulate The Specific Legal Principles Which Are The Basis For The Instruction

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 11 - CHAPTER 251

RATIONALE: Most standard pattern instructions inform the jury that it "should" consider evidence of defendant’s good character. However, such instructions may mislead the jury into believing that it need not consider the good character evidence. While the jury has no obligation to accept or credit such evidence, it is obligated to consider it.

POINTS AND AUTHORITIES: By using the term "should" instead of "must," an instruction effectively informs the jury that "while it is recommended that it consider the defense evidence, it is not obligated to do so." Obviously it would violate the defendant's constitutional rights for the jury to not at least consider defense evidence or a defense theory. (See FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction]. Available to subscribers.  To become a subscriber, click here.)

    It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Martin v. Ohio (1987) 480 US 228, 233-234 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self defense evidence in determining whether there was a reasonable doubt about the State's case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; see also FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction].  Available to subscribers.  To become a subscriber, click here.)

    Accordingly, a good character instruction is defective in that it informs the jury that consideration of the good character evidence is permissive ("you should consider...") rather than mandatory ("you must consider"). To assure the defendant's constitutional right to consideration of all the evidence, the jury should be instructed that it "must" consider the good character evidence.

    See also FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

    See also FORECITE National™ 256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].  Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.4.3 [Defendant's Character].  Available to subscribers.  To become a subscriber, click here.

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].  Available to subscribers.  To become a subscriber, click here.

    The defendant has called witnesses who have given their opinion of his good character. This testimony is not to be taken by you as the witness' opinion as to whether the defendant is guilty or not guilty. That question is for you alone to determine. You must, however, consider this character evidence together with all the other evidence in the case in deciding whether the defendant has been proven guilty beyond a reasonable doubt.

[Source: FORECITE National™.]

    You must consider all the relevant evidence, including that related to the defendant’s good character or reputation. If after such consideration, there exists a reasonable doubt of (his/her) guilt, even though that doubt may arise merely from (his/her) previous good repute, (he/she) is entitled to an acquittal.

[Source: FORECITE National™.]

    You have heard [reputation/opinion] evidence about the character trait of ____________ for truthfulness [or untruthfulness]. You must consider this evidence in deciding the weight that you will give to ____________’s testimony.

[Source: FORECITE National™.]

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 11 - CHAPTER 256

RATIONALE: Use of the phrase "should consider" or "may consider" could be improperly interpreted by the jurors as allowing them to disregard the evidence of intoxication.

POINTS AND AUTHORITIES: By using the term "should" instead of "must," a standard pattern instruction such as CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.21 [Volunteer Intoxication--When Relevant to Specific Intent] (West, 6th Ed. 1996) effectively informs the jury that "while it is recommended that it consider the defense evidence, it is not obligated to do so." (See also e.g., (NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 305.10 [Voluntary Intoxication, Liquor Or Drugs-In General] p. 936 (TRCC, 1999) [ "...you should consider whether this condition affected his ability to formulate the specific intent...."].) Obviously it would violate the defendant's constitutional rights for the jury to not at least consider defense evidence or a defense theory.

    It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Rock v. Arkansas (1987) 483 US 44, 61 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Martin v. Ohio (1987) 480 US 228, 233 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self defense evidence in determining whether there was a reasonable doubt about the State's case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; see also FORECITE National™ 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].)

    Accordingly, standard pattern instructions are defective if they inform the jury that consideration of voluntary intoxication is permissive ("you may consider...") rather than mandatory. (See e.g., State v. Foster (WI 1995) 528 NW2d 22, 28 [jury should be instructed that it "must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense"].)  Modification to use the word "may" instead of "must" is erroneous because a "jury could interpret this to mean that it need not consider that evidence at all." (Ibid.) To assure the defendant's constitutional right to consideration of all the evidence, the jury should be instructed that it "must" consider evidence of voluntary intoxication. (See State v. Ortiz (CT 1991) 588 A2d 127, 137-38 [instruction in murder prosecution that jury "must" consider defendant's wholly circumstantial evidence of intoxication along with all testimony in determining whether State met burden of proving defendant's specific intent beyond reasonable doubt adequately instructed jury]; see also Commonwealth v. Perry (MA 1982) 433 NE2d 446, 453 [jury should be instructed to consider evidence of intoxication in determining degree of criminal culpability]; Commonwealth v. Gould (MA 1980) 405 NE2d 927, 935 [jury should be instructed to consider evidence of substantial mental impairment in determining degree of murder].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].  Available to subscribers.  To become a subscriber, click here.

See generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].  Available to subscribers.  To become a subscriber, click here.

See generally FORECITE National™ 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].  Available to subscribers.  To become a subscriber, click here.

    Consider any evidence that the defendant was intoxicated at the time of the alleged crime in deciding whether the defendant formed [the intent to _____________] [the mental state of ________________].

[Source: FORECITE National™.]

    As to the charge of ________________ (insert charge to which intoxication is applicable, e.g., murder), in deciding whether the prosecution has proven that the defendant ________________ (insert applicable intent, e.g., "intended to kill"), you must consider any evidence of the defendant's intoxication. You should give such evidence, whatever weight you decide it deserves.

    If, after consideration of the intoxication evidence together with all the other evidence, you have a reasonable doubt whether the prosecution proved that the defendant ____________________ (e.g., intended to kill), you must find [him] [her] not guilty of ____________________ (e.g., murder).

[Source: FORECITE National™.]

    You must consider this evidence [of voluntary intoxication] in deciding whether the defendant acted with the (describe mental state) required for this offense.

[Source: WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 765 [Voluntary Intoxication] p. 2, ¶ 2, sent. 2 (University of Wisconsin Law School, 1999).]

    If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you must consider that fact in deciding whether defendant had the required [specific intent] [mental state].

[Source: FORECITE National™.]

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement  The Pattern Instructions

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 3 - CHAPTER 16

RATIONALE: While the jury has no obligation to accept any evidence or testimony, it does have a duty to fairly consider the evidence before deciding whether to accept or reject it. Because the jury may not understand this duty, it may be appropriate to instruct regarding the distinction between the juror's obligation to consider all evidence presented and their duty to decide what evidence to accept.

POINTS AND AUTHORITIES: It is, of course, well settled that the jurors are the "sole judges of the facts" and may give the evidence and witnesses whatever weight, if any, the jury chooses. (8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.01 [General: Nature Of Case; Nature Of Indictment; Burden Of Proof; Presumption Of Innocence; Duty Of Jury; Cautionary] ¶ 3 (2000).  Available to subscribers.  To become a subscriber, click here.) However, this does not allow the jury to simply ignore or not consider evidence that has been presented. (See Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence].)

    For example, an instruction on a defense theory such as voluntary intoxication is defective if it informs the jury that consideration is permissive rather than mandatory. (See FORECITE National™  256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider]; see also FORECITE National™ 251.4.2.4 [Good Character Evidence: Jury "Must" Consider].)

    See FORECITE National™ 16.3.2 [Jury Must Consider Evidence But Need Not Believe It].  Available to subscribers.  To become a subscriber, click here.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.4; 7.1; 4.1].  Available to subscribers.  To become a subscriber, click here.

See generally FORECITE National™ 16.3.6 [Jury Consideration Of The Evidence: Federal Circuit Model Instructions And Notes].  Available to subscribers.  To become a subscriber, click here.

SAMPLE INSTRUCTION # 1:

    Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Basic Instructions 5, [Credibility Of Witnesses] ¶ 1, sent. 1-2 (1997) [emphasis in original].  Available to subscribers.  To become a subscriber, click here.]

    You are to consider all the evidence given in this trial.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 7, sent. 5 (1988).]

    You are to consider both direct and circumstantial evidence.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.6 [Direct And Circumstantial Evidence] sent. 4 (2000).  Available to subscribers.  To become a subscriber, click here.]

    If you decide the statement was made by the defendant, you must judge the truth of the fact stated.

[Source: State of Tennessee v. Cooper, Court of Criminal Appeals of Tennessee, at Knoxville, case no. 03C01-9706-CR-0020 (1998) (unpublished).]

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 11 - CHAPTER 250

PRACTICE NOTE: "[A] defendant's right to submit a defense for which he has an evidentiary foundation is fundamental to a fair trial...." (Whipple v. Duckworth (7th Cir. 1992) 957 F2d 418, 423; U.S. v. Pedigo (7th Cir. 1993) 12 F3d 618, 625 [standard instruction on elements of conspiracy was not sufficient to inform the jury of the defendant’s buyer-seller theory]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-858 [the right to have the jury instructed as to the defendant’s theory of the case is one of those rights so basic to a fair trial that failure to instruct where there is evidence to support the instruction can never be considered harmless error]; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 571-72 ["[w]e have held that failure to instruct the jury on the defendant's theory of the case, where there is evidence to support such instruction, is reversible per se and can never be considered harmless error. [Citation.]"].)

    Hence, the right to an instruction on a defense theory is guaranteed by the 5th, 6th and 14th Amendment rights to due process and fair trial by jury. (See also FORECITE National™ 300.5.2 [Improper Presumption Which Lessens The Prosecution's Burden ].  Available to subscribers.  To become a subscriber, click here.)

Return to Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions

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