Motive Evidence: Issues And Instructions (Part I)

by Thomas Lundy

    Motive evidence can raise important instructional issues. Some jurisdictions provide standard instructions on motive. (See e.g., California Jury Instructions - Criminal, CALJIC 2.51 [Motive] West, 6th Ed. 2005.) Others recommend against such instructions. (See e.g., 7th Circuit Federal Instructions 1999, 3.19 ["To specifically define motive, then to explain its immateriality for a purpose other than one probative of intent, only creates confusion far greater than any clarification an instruction might accomplish"].)

    However, whether or not your jurisdiction has a standard instruction on motive there are several instructional issues which may be applicable. This is the first of a two-part article discussing such issues.

    "‘Motive’ is the moving power which impels to action for a definite result. Intent is the purpose to use a particular means to effect such result. ‘Motive’ is that which incites or stimulates a person to do an act." (People v. Hoffman (MI 1997) 570 N.W.2d 146, 148 [accepting Black’s Law Dictionary distinction].)

    "One can have motive without intent, or intent without motive. For instance, the wife of a wealthy but disabled man might have a motive to kill him, and yet never intend to do so. A psychopath on the other hand, may intend to kill and yet have no motive." (State v. Wyant (OH 1994) 597 N.E.2d 450, 454.)

    "Intent and motive should not be confused. Motive is what prompts a person to act, while intent refers to the state of mind with which the act is done." (11th Circuit Pattern Jury Instructions - Criminal Special Instructions 9 [Intentional Violation Of A Known Legal Duty (As Proof Of Willfulness Under The Internal Revenue Code)] ¶ 1 (1997); see also U.S. v. Rederth (8th Cir. 1989) 872 F.2d 255, 258 ["Intent and motive should never be confused. Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or permitted"]; U.S. v. Anderson (11th Cir. 1989) 872 F.2d 1508, 1518 ["Intent and motive should not be confused. Motive is what prompts a person to act, while intent refers to the state of mind with which the act is done"]; People v. Snead (CA 1993) 20 Cal.App.4th 1088, 1098 [24 CR2d 922] [the words motive, intent and malice are "separate and disparate mental states"].) "‘[M]otive’ is the logical reason why someone does something, while ‘intent’ is the state of mind of the actor." (Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 4:59 [General Instructions-Motive] (West, 1999).)

    Instructions on motive have been used either to enunciate its immateriality to the proof of the case or to distinguish it from intent. (Illinois Pattern Jury Instructions - Criminal, IPI-Criminal 4th 3.04 [Motive] (West, 4th ed. 2000); 1 O’Malley, Grenig & Lee, Federal Jury Practice and Instructions 17.06 [Juror Questionnaire Forms] (West, 5th ed. 2000); see also Annotation, Necessity That Trial Court Charge Upon Motive In Homicide Case, 71 ALR2d 1025.) It has been questioned whether either of these purposes can be successfully accomplished through an instruction. (Committee comment from 7th Circuit Federal Jury Instructions - Criminal 3.19 [Motive] (1999); see also People v. Rivera (IL 1975) 336 N.E.2d 255, 259 [where State is not required to prove motive to establish charged crime, motive instruction should not be given to jury].) To specifically define motive, then to explain its immateriality for a purpose other than one probative of intent, only creates confusion far greater than any clarification an instruction might accomplish. (Ibid.)

    A person cannot be motivated to act by a fact or circumstance unless the person was aware of the fact or circumstance. "Before a fact or circumstance may be used as evidence of motive, it must be shown that the fact or circumstance was known to the defendant." (Mullins v. Commonwealth (VA 1912) 75 S.E. 193, 195.) The rationale for this principle is that a person "cannot be influenced or moved to act by a fact or circumstance of which he [or she] is ignorant." (Ibid; see also Virginia Model Jury Instructions - Criminal 3.300 [Accessory After The Fact] Comment (Lexis, 2000).)

    A general instruction that motive is not an element of the charge may conflict with some offenses which include motive as an element. (See e.g., Wall v. State (MS 1980) 379 So.2d 529, 532 [motive is an abstract instruction on the law which should not be given and may be prejudicial to the defendant by confusing the jury into returning a guilty verdict].) For example, a charge of willful refusal to give testimony to a grand jury requires a corrupt motive. (See U.S. v. Banks (11th Cir. 1993) 988 F.2d 1106, 1109-1111 [prosecution required to prove a corrupt motive].) "Fear of reprisal" is a viable defense theory to an obstruction charge because it negates the motive element of the offense. The failure to instruct upon such a defense theory is error. (Ibid.)

    Similarly, motive may be an element of hate crimes that require that the defendant’s acts be motivated by an impermissible bias. For example, the phrase "because of" as used in the California statute requires that the impermissible bias motivation be a "cause in fact" of the offense, whether or not other causes also exist. (See In re M. S. (CA 1995) 10 Cal.4th 698, 718-20 [42 Cal.Rptr.2d 355]; People v. Superior Court (Aishman) (CA 1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377].)

SAMPLE INSTRUCTION [Add to general instruction on motive]:

    Due process requires substantial evidence of guilt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-20 [99 S.Ct. 2781; 61 L.Ed.2d 560].) Motive alone does not meet this standard because a conviction based on such evidence would be speculative and conjectural. (See e.g., U.S. v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1109 [motive alone insufficient to prove larceny]; see also McGowan v. State (IN 1996) 671 N.E.2d 1210, 1214 [standing alone, evidence of motive, presence or opportunity is insufficient to prove guilt]; Marcum and Hoskins v. Commonwealth (KY 1973) 496 S.W.2d 346, 349 [". . . neither motive alone nor motive plus opportunity (or presence at the scene) is enough to justify a conviction"]; Commonwealth v. Mazza (MA 1987) 504 N.E.2d 630, 633 [evidence of motive and consciousness of guilt insufficient to prove guilt]; State v. Nichols (OH 1996) 689 N.E.2d 98, 102 ["motive alone is insufficient to convict"]; but see People v. Johnson (MI 1991) 468 N.W.2d 307, 310 [defendant not entitled to instruction that motive was insufficient to establish guilt where there was no evidence of alleged motive].)

SAMPLE INSTRUCTION [Add to standard motive instruction, if given]:

Motive is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

    Because the mental states of premeditation and deliberation require a determination of the defendant’s purpose in acting, motive is relevant to that determination. Therefore, it would mislead the jury to generally instruct that motive is irrelevant.

    "Lack of motive is not only relevant on the issue of identification but also to the issue of premeditation and deliberation, and no reasons appears why a defendant upon request should not be entitled to a specific instruction pointing out that lack of motive is a circumstance which may be considered by the jury in determining the issue of premeditation and deliberation." (People v. Sears (CA 1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711].)

The prosecution need not prove a motive for the killing. But, you may consider evidence of motive or lack of motive in deciding if there was premeditation and deliberation. Motive by itself does not prove premeditation and deliberation.

[See e.g., Michigan Criminal Jury Instructions 16.21 [Inferring State Of Mind] ¶ 6 (ICLE, 2nd ed. 97/98 Supp.).]

    If the jury is generally instructed that motive is irrelevant, it may not understand that motive should be considered in assessing the credibility of witnesses.

The motive of a witness may have bearing on his or her credibility. For example, "[i]t is, of course, an elementary rule that the financial interest of a witness in the result of a case in which he testifies is a proper subject of cross-examination as tending to show his bias and affecting his credibility." (People v. Philpott (CA 1962) 201 Cal.App.2d 859, 864 [20 Cal.Rptr 540]; see also Calvert v. State Bar (CA 1991) 54 Cal.3d 765, 777 [1 Cal.Rptr. 684].) Similarly, a witness that has or will receive a benefit from the prosecution in exchange for testifying may have a motive to testify falsely.

    Hence, the jury may properly be instructed to consider a witness’s interest in the outcome of the case in evaluating the credibility of the witness. (People v. Brown (CA 1943) 22 Cal.2d 752, 758 [141 P.2d 1] ["In determining the credibility of any witness . . . you may also consider . . . the interest or absence of interest in connection with the results of the issues before you"]; see also 9th Circuit Model Jury Instructions - Criminal 1.8 [Credibility Of Witness] (2000) [". . .you may take into account . . . the witness’ interest in the outcome of the case . . ."].)

SAMPLE INSTRUCTION [Add to general motive instruction]:

    "Poverty as proof of motive has in many cases little tendency to make theft more probable. Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man’s greed is as much a motive to steal as a poor man’s poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value." (U.S. v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1109; People v. Wilson (CA 1992) 3 Cal.4th 926, 939 [13 Cal.Rptr.2d 259] [per se inadmissible under California Evidence Code § 352 except on rebuttal].)

    "The lack of money by A might be relevant enough to show the probability of A’s desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly those of violence." (2 Wigmore, Evidence, § 392 (Chadbourne Rev. 1979).)

    "There is a distinction between an interest, in the sense that it is anyone’s interest to be richer rather than poorer, and an inclination. A mere interest, unconnected with inclination, desperation, or other evidence that the person was likely to commit the crime does not add much, in most cases, to the probability that the defendant committed a crime. If people commonly committed crimes whenever they needed money and could get it by crime, no company would sell life insurance. There is usually a moral disinclination and an interest in avoiding punishment that constrains people from committing crimes out of mere financial interest. The problem with poverty evidence without more to show motive is not just that it is unfair to poor people, as Wigmore says, but that it does not prove much, because almost everyone poorer now has a motive to get more money. And most people, rich or poor, do not steal to get it." (Ibid.)

    In sum, evidence of the defendant’s financial condition should be per se inadmissible unless offered in rebuttal. (People v. Wilson, 3 C4th at 939.)

    Additionally, even if the defendant’s need for money is relevant to show motive, such as where the defendant must finance a drug habit, the prejudicial impact of the defendant’s drug use may outweigh the probative value of the evidence. (See Wharton’s Criminal Evidence (West 15th ed. 1986) § 4:45, pp. 479-82.)

    The admissibility of the defendant’s financial condition is generally discussed above. However, regardless of the relevance of such evidence in a "merely speculative crime" (see 2 Wigmore, Evidence, 3rd Ed. § 392, p. 342) it is of even less probative value and has greater prejudicial effect when the crime is primarily one of violence.

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