by Thomas Lundy

(July 2003)

    When the defense relies on a theory of third party guilt, the jury may improperly view the trial as a question of whether or not the third party has been proven guilty. Hence, it is crucial that the instructions caution the jurors against shifting the burden of proof to the defendant.

            1.     Right To Present Third Party Guilt Evidence

    Evidence that another person committed the charged crime is "generally recognized as relevant evidence under fundamental standards." (Larimore v. State (AR 1994) 877 SW2d 570, 575; see also United States v. Stevens (3rd Cir.1991) 935 F2d 1380, 1401-03; United States v. Armstrong (9th Cir.1980) 621 F2d 951, 953; U.S. v. Calle (11th Cir. 1987) 822 F2d 1016, 1021 [third party guilt is substantive defense which cannot be limited by trial court pursuant to rules governing impeachment]; People v. Edelbacher (CA 1989) 47 C3d 983, 1017 [254 CR 586]; People v. Hall (CA 1986) 41 C3d 826, 833 [226 CR 112].)

    Some cases require the defense to show a "clear link" or "direct connection" between a third party and the crime in question. (See e.g., People v. Young (NY 2000) 277 AD2d 910, 910 [evidence of third party culpability "must do more than raise a mere suspicion that another person committed the crime; there must be a clear link between the third party and the crime in question"]; Smitart v Alaska (AK 1999) 988 P2d 583, 586 ["direct connection"]; North Carolina v. Potts (NC 1993) 433 SE2d 736, 741 ["points directly"]).

    Such restrictions should be rejected. For example, in People v. Primo (NY 2001) 753 NE2d 164 the New York Court of Appeals rejected the "clear link" approach to admitting evidence of third party guilt:

To the extent that the "clear link" standard implies no more than an abbreviation for the conventional balancing test, it presents no problem. A review of clear-link cases reveals that the courts would very likely have made the same ruling regardless of the nomenclature. "Clear link" and similar coinages, however, may be easily misread as suggesting that evidence of third-party culpability occupies a special or exotic category of proof. [¶] The better approach . . . is to review the admissibility of third-party culpability evidence under the general balancing analysis that governs the admissibility of all evidence.

(Primo, 753 NE2d at 168.)

    This view that no special evidentiary hurdles should be raised for third party guilt evidence has been recognized in other jurisdictions. (See e.g. People v. Hall, 41 C3d at 834 [noting that "courts should simply treat third-party culpability evidence like any other evidence"]; South Dakota v. Braddock (SD 1990) 452 NW2d 785, 789-790 [applying general evidentiary rules to determine admissibility of evidence of third-party culpability]; Winfield v. United States (DC 1996) 676 A2d 1, 11-12 [same].) On the other hand, extremely remote or fanciful third party guilt evidence is typically excluded. (See e.g., Wisconsin v. Sheidell (WI 1999) 595 NW2d 661, 673 [requiring that third party culpability evidence share "nearness in time, place, and circumstances to the alleged crime or to the fact or proposition sought to be proved"]; Minnesota v. Williams (MN 1999) 593 NW2d 227, 233 [defendant must prove "facts to connect (the third person) with the crime"]; New Jersey v. Sturdivant (NJ 1959) 155 A2d 771, 778 [searching for "some thread capable of inducing reasonable men to regard (third-party culpability evidence) as bearing on the State’s case"].)

    Because the defendant has a right to an instruction on his or her theory of the case (see e.g., Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Whipple v. Duckworth (7th Cir. 1992) 957 F2d 418, 423; Conde v. Henry (9th Cir. 1999) 198 F3d 734; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 571-72), there should be a right to instruction on third party guilt when appropriate. (See e.g., People v. Hall, 41 C3d at 833 [226 CR 112]; Hill v. State (TX 1979) 585 SW2d 713 [reversible error to refuse request for defense theory instruction informing jury to acquit if it had a reasonable doubt that defendant was the killer in light of the third party guilt evidence]; see also McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 12:410 [Cause Of Death-Third Person Causes Criminal Act] (James Publishing, 2000) [the defendant is entitled to a separate "defense of charge" on mistaken identity including third party guilt].)

    In light of these principles, a defendant who relies on the defense theory of third party culpability should be permitted to obtain instruction upon this theory notwithstanding the fact that it may be generally encompassed within the general instruction on the prosecution’s burden to prove guilt beyond a reasonable doubt. (See e.g., U.S. v. Regan (2nd Cir. 1991) 937 F2d 823, 826 [general mistake instruction not adequate substitute for specific mistake of law defense offered by the defendants]; U.S. v. Haddock (10th Cir. 1992) 956 F2d 1534, 1546; U.S. v. Morris (11th Cir. 1994) 20 F3d 1111, 1116 [general instructions on "willfulness," "knowledge" and "intent to defraud" not sufficient substitutes for specific instruction on defense theory of good faith]; see also FORECITE National™ 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction].  "Jury instructions that merely set forth the elements of the offense and the burden of proof, without more, do not encompass a theory of defense." (People v. Marquez-Lopez (CO 1997) 952 P2d 788, 792; see also People v. Adrian (CA 1982) 135 CA3d 335, 342 [185 CR 506].)

    The most important role of a third party guilt instruction is to assure the jurors understand that the defense has no burden to prove that the third party is guilty. The defendant’s third party evidence need not show "substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt." (Hall, 41 C3d at 833; see also People v. Madison (CA 1935) 3 C2d 668, 677 [46 P2d 159] [prosecution must present evidence that no other person committed the crime charged]; Mullis v. Commonwealth (VA 1987) 351 SE2d 919, 926 [". . . no burden on the defendant to produce any evidence and the defendant does not have to prove who killed her husband."].)

    In this regard the function of the third party guilt instruction is analogous to an instruction on alibi – it must assure that the jurors do not place the burden on the defense to prove its theory of the case. (See e.g., Robertson v. State (MD 1996) 685 A2d 805, 815 ["a specific alibi instruction eliminates the possibility that the jury will place the burden of proof on the defense with respect to that issue"]; see also U.S. v. Burse (2nd Cir. 1976) 531 F2d 1151, 1153 "[there exists the danger that the failure to prove [an alibi] that defense will be taken by the jury as a sign of the defendant’s guilt"].)

    Hence, the third party guilt instruction should avoid language which suggests that the defense has any burden of proving the defense. For example, the instruction should not suggest that the defense must "raise" or "create" a reasonable doubt. (See e.g., People v. Branch (NY 1996) 637 NYS2d 892.)

    You have heard evidence that [a person other than the defendant] [__________________ name of third party] committed the offense with which the defendant is charged. The defendant is not required to prove [the other person’s] [_________________’s] guilt. It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant’s guilt. Evidence that [another person] [__________________] committed the charged offense may by itself leave you with a reasonable doubt.

    If after considering all of the evidence, including any evidence that another person committed the offense, you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty.

[Source: www.JuryInstruction.com FORECITE National™ 251.9.1: Third Party Culpability As Defense Theory.] [Footnote 1]

    The defendant in this case contends that another person committed the charged crime and that [he] [she] had nothing to do with it. The law places no burden on the defendant to prove that someone else committed the crime. Thus, there is no burden upon [him] [her] to prove the other person’s guilt. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant was present at the scene and that [he] [she] committed the crime. The state must prove that allegation, along with all the other elements of the offense beyond a reasonable doubt.

[See generally State v. Mayfield (SC 1959) 109 SE2d 716, 724; cf. Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 14-1 [Alibi] (South Carolina Bar, 1995).]

    The defendant contends that another person committed the charged offense. The burden of proving that another person committed the charged offense does not rest upon the defendant. To establish the defendant’s guilt the prosecution must prove beyond a reasonable doubt that the defendant was the person who committed the crime charged. The defendant’s contention that [he] [she] did not participate in the crime and that another person committed it is simply a denial of facts essential to the state’s case.

    Therefore, upon considering all the evidence in the case, including the evidence with respect to another person committing the charged offense, if you have a reasonable doubt as to the defendant’s participation in the crime charged, you must find [him] [her] not guilty.

[Cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim Append 301.10 [Alibi] p. 930 (TRCC, 1999).]

    The defendant has introduced evidence for the purpose of showing that another person committed the alleged offense for which [he] [she] is here on trial. If, after considering all the evidence, you have a reasonable doubt that the defendant committed the charged offense, you must find [him] [her] not guilty.

[Cf. MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 1-022 [Alibi] (State Bar of Montana, 1990); see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.50 [Alibi] p. 214 (West, 6th Ed. 1996).]

    The defendant has introduced evidence to show that another person committed the offense charged in the indictment. The prosecution has the burden of establishing beyond a reasonable doubt that it was the defendant who committed the charged offense.

    If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was the person who committed the charged offense, you must find the defendant not guilt.

[Cf. 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.1 [Alibi] p. 94 (2000).]

    Evidence has been introduced that a person other than the defendant committed the crime charged. Consider all of the evidence bearing on this issue, whether introduced by the prosecution or the defendant. If, after careful consideration of all of the circumstances, you have a reasonable doubt as to whether the defendant committed the charged crime, if it was committed, then you must find the defendant not guilty.

[Cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-57 [Defense of Alibi--Requirements] p. 490A (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    The prosecution has the burden of proving beyond a reasonable doubt not only that the offense was committed but also that the defendant is the person who committed it. Unless all of the circumstances, including any evidence that a person other than the defendant committed the offense, convince you beyond a reasonable doubt that the defendant committed the offense, you must return a verdict of not guilty.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-7-1 [Mistaken Identity] (State Bar of South Dakota, 1997 rev.).]

Footnotes:

Footnote 1:  To subscribe to FORECITE National™ click here.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions

250.4.1 Defense Theory: Not Included In General Burden Of Proof Instruction

PRACTICE NOTE: General instructions on elements of the charge are not adequate substitutes for specific defense theory instructions. (See e.g., U.S. v. Regan (2nd Cir. 1991) 937 F2d 823, 826 [general mistake instruction not adequate substitute for specific mistake of law defense offered by the defendants]; U.S. v. Haddock (10th Cir. 1992) 956 F2d 1534, 1546; U.S. v. Morris (11th Cir. 1994) 20 F3d 1111, 1116 [general instructions on "willfulness," "knowledge" and "intent to defraud" not sufficient substitutes for specific instruction on defense theory of good faith].)

    "Instructions must be specifically precise to enable the jury to recognize and understand the defense theory, test it against evidence presented at trial, and then make a decision, based on the theory and the evidence, whether defendant is guilty. [Citation.]" (O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 7.03 [Requests For Instructions] at 469, fn. 20 (West, 5th ed. 2000); see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 3-5; Cooper, KENTUCKY INSTRUCTIONS TO JURIES § 1.04 [Affirmative Instructions On Theory Of Defense] (Anderson, 4th ed. 1999) ["When the accused admits facts constituting essential elements of the offense with which he is charged, and relies upon facts and circumstances amounting to an avoidance of the crime, or having the effect of exonerating him of criminal intent, he is entitled to a concrete instruction on his excuse or theory of the case and a mere general instruction is insufficient"].)

    "Jury instructions that merely set forth the elements of the offense and the burden of proof, without more, do not encompass a theory of defense." (People v. Marquez-Lopez (CO 1997) 952 P2d 788, 792.)

    Nor is the general burden of proof instruction adequate to inform the jury as to the burden applicable to affirmative defenses. (See People v. Adrian (CA 1982) 135 CA3d 335, 342 [185 CR 506]; see also People v. Brown (CA 1984) 152 CA3d 674, 677-78 [199 CR 680] [Former CALJIC 2.91 and 2.20 'are not alone sufficient to render the failure to give requested instruction linking reasonable doubt to identification harmless error'].) All the general burden of proof instruction does is tell the jury that a reasonable doubt as to "guilt" warrants an acquittal. (See Adrian, 135 CA3d at 342.) This instruction works fine when the jury is reviewing the elements of the offense. But as to a defense theory such as accident, the absence of a specific burden instruction erroneously suggests that the defendant is required to prove his or her theory before the defense is applicable. (See e.g., U.S. v. Vicaria (11th Cir. 1994) 12 F3d 195, 197 [reversal required for failure to give a "theory of defense" instructions including: "If ... the government has failed to prove, beyond and to the exclusion of every reasonable doubt, that this is not true, you must acquit [the defendant] of all charges"]; see also FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].)

    For example, in California many affirmative defenses in the standard pattern instructions (CALJIC) include a statement of the burden of proof. (See e.g., identity (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.91 [Burden Of Proving Identity Based Solely On Eyewitness] (West, 6th Ed. 1996); alibi (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.50 [Alibi] (West, 6th Ed. 1996); unconsciousness (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.30 [Unconscious Act–Defined–Burden Of Proof] (West, 6th Ed. 1996); and self defense (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.15 [Charge Or Murder–Burden Of Proof Re: Justification Or Excuse] (West, 6th Ed. 1996)); see also People v. Simon (CA 1995) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden].)

    As observed by the Wisconsin Jury Instruction Committee: "Many well-recognized defenses negative a required element of the crime. For example, voluntary intoxication and mistake are defenses only when they negative the existence of a state of mind essential to the crime. [Footnote omitted.] One could argue that a separate instruction on such matters is never required because the existence of the mental state is always covered by the instructions defining the substantive offense. Such a literal application of the rule being discussed here obviously would run counter to long-standing practice. The jury ought to be told that the law of the state recognizes that voluntary intoxication or good faith mistake may result in the nonexistence of criminal intent. The recommended practice is to relate the explanation of the defense directly to the element to which it relates. [Footnote omitted.]" (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 700, III [Law Note: Theory Of Defense Instructions] (University of Wisconsin Law School, 2000).)

    Moreover, one of the recommended techniques for improving the understandability of jury instructions is to make them more concrete and less abstract. (See e.g., Elwork, Sales & Alfini, Making Jury Instructions Understandable (Michie 1982); Carrow & Carrow, "Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions," 79 Columbia Law Review 1306 (1979); Strawn & Buchanan, "Jury Confusion: A Threat to Justice," 59 Judicature 478 (1976).) "Emphasizing the facts that relate to a required element is one way to help the jury make the connection between an abstract definition and the case to be decided. Referring to facts can also help to focus the jury’s attention on the important issues in the case. For example, if the statutory definition of a crime is complicated and the defense is one of alibi, the jury will be greatly aided by an instruction that helps focus their attention on the alibi issue, rather than on parts of a complicated definition that are not in dispute. [Footnote omitted.]" (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 700(V) [Law Note: Theory Of Defense Condition] (University of Wisconsin Law School, 2000).)

    Hence, "[w]hen the accused admits facts constituting essential elements of the offense with which he is charged, and relies upon facts and circumstances amounting to an avoidance of the crime, or having the effect of exonerating him of criminal intent, he is entitled to a concrete instruction on his excuse or theory of the case and a mere general instruction is insufficient." (Cooper, KENTUCKY INSTRUCTIONS TO JURIES § 1.04 [Affirmative Instructions On Theory Of Defense] p. 11 (Anderson, 4th ed. 1999); see also Cheser v. Commonwealth (KY 1994) 904 SW2d 239, 241-42; Hayes v. Commonwealth (KY 1993) 870 SW2d 786, 788 [defendant has right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions].)

    For example, "[e]ven a correct and complete instruction on the specific intent requirement does not fairly cover the issue [of claim of right] without an accompanying defense instruction, if requested. [Citaton.]" (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:32, comment [Theft-Obtaining Or Exterting Unauthorized Control] (Micpel, 1999); see also Smith v. State (MD 1985) 486 A2d 196, 198; Pulley v. State (MD 1978) 382 A2d 621, 624-26 [even though alibi issue is "fairly covered" by more general instructions on criminal agency and burden of persuasion, separate instruction on alibi must be given upon request]; State v. Crisler (MN 1979) 285 NW2d 679, 682 [cursory reference to accidental death, in instruction on the law of self defense in a homicide prosecution inadequate to explain the defense of accidental death].)

    Finally, 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. (Stack v. U.S. (DC 1986) 519 A2d 147, 156 [instruction on general denial, self defense and proximate cause did not adequately express defense theory of independent cause].) 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. (See 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).)

Return to Text

RETURN TO TABLE OF CONTENTS