Motive Evidence (Part II): Defense Theory Instructions

by Thomas Lundy

    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"].) Some of the instructional issues presented by the standard motive instructions, or lack thereof, were discussed in Motive Evidence: Issues And Instructions (Part I) (May 2005).

    In Part II of this series various defense theory instructions related to motive will be discussed.

    "Good motive is never a defense where the act done or omitted is a crime, but it may be considered by the jury in the determination of the state of mind or intent of the accused." (U.S. v. Rederth (8th Cir. 1989) 872 F.2d 255, 258.)

    Thus, when evidence of a such a defense theory has been presented, a specific defense theory instruction should be given on request. (See e.g., State v. Brechon (MN 1984) 352 N.W.2d 745, 750 and fn. 2 [exclusion of evidence offered to negate an element of the charge implicates defendant’s federal constitutional right to present evidence]; People v. Saille (CA 1991) 54 Cal.3d 1103, 1120 [2 CR2d 364] [right to request instruction pinpointing effect of intoxication on mental element of the charge]; cf. Martin v. Ohio (1987) 480 U.S. 228, 233-34 [107 S.Ct. 1098; 94 L.Ed.2d 267] [defendant’s constitutional rights would have been implicated if State had precluded jury from considering evidence relevant to elements of the offense when deciding whether the State had proved those elements beyond a reasonable doubt].)

    "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 Cal.4th 548, 572 [34 CR2d 607]; see also Logacz v. Brea Community Hospital, et al. (CA 1999) 71 Cal.App.4th 1149 [84 CR2d 257]; State v. Beigenwald (NJ 1991) 594 A.2d 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 F.2d 41, 47; see also U.S. v. Kenny (9th Cir. 1981) 645 F.2d 1323, 1337 ["jury must be instructed as to the defense theory of the case"]; U.S. v. Oreto (1st Cir. 1994) 37 F.3d 739, 748; Keeble v. U.S. (1973) 412 U.S. 205, 213 [93 S.Ct. 1993; 36 L.Ed.2d 844]; State v. O’Daniel (HI 1980) 616 P.2d 1383, 1390; People v. Miller (IL 1994) 630 N.E.2d 1125, 1130; State v. Selgado (NM 1966) 413 P.2d 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 deciding whether the defendant formed the [mental state of __________] [intent to ______________], consider any evidence that the defendant acted [with a good motive] [for the purpose of ___________].

If, after considering such evidence, together with all the other evidence, you have a reasonable doubt that the defendant formed the [mental state of __________] [intent to ______________] you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Cf. California Jury Instructions - Criminal, CALJIC 3.32 [Evidence of Mental Disease--Received for Limited Purpose] (West, 6th Ed. 1996).]

SAMPLE INSTRUCTION # 2:

If, after considering all of the evidence, including defendant’s alleged good motive, you have a reasonable doubt as to whether the defendant knew that ____________ [insert language as to the defendant having the culpable mental state involved], you must find the defendant not guilty.

[Cf. Missouri Approved Instructions - Criminal, MAI-CR 3d 308.03 [Mental Disease or Defect Negating Culpable Mental State] p. 308-11 (Missouri Supreme Court Publications, 3rd ed. 1987).]

    The defense of necessity requires consideration of why the defendant acted (i.e., motive). Therefore, the standard instruction that motive is not an issue in the case should be modified or omitted in such a case.

    "Motive may be relevant in determining whether the defense of necessity applies, in establishing the element of intent, or in mitigating punishment." (Cook & Hermann, Criminal Defense Checklist (West, 1999 ed.) § 1.03 (15).)

    When the defense theory is that a third party committed the offense, the defense should have the right to an instruction regarding the consideration of motive as to the guilt of the third party.

    In context, pattern motive instructions often refer to the defendant and no one else. Where evidence of the guilt of a third party is presented, the jury should consider the third party’s motive in determining whether the third party evidence raises a reasonable doubt as to the defendant’s guilt. (See e.g., People v. Ofunniyin (NY 1985) 495 N.Y.S.2d 485 [flight of codefendant is relevant to defense that codefendant is guilty and non-fleeing defendant is not guilty]; see also Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 4:45 [General Instructions-Flight–Commentary] (West, 1999)); see also Winfield v. U.S. (DC App. 1996) 676 A.2d 1, 6 [evidence that third party possessed motive to kill murder victim and had attempted to do so in recent past was improperly excluded at trial, despite absence of evidence placing third party at or near murder scene].)

    It would violate federal due process principles to allow the prosecution to use a motive instruction to convict and not allow the defendant to use it to defend. (See generally, Wardius v. Oregon (1973) 412 U.S. 470 [93 S.Ct. 2208; 37 L.Ed.2d 82].) "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 A.2d 147, 154-56 [instruction on general denial, self defense and proximate cause did not adequately express defense theory of independent cause].)

PRACTICE NOTE: When the defendant offers evidence of third party motive, exclusion of such evidence may not be made on the basis of state law without balancing the exculpatory significance of the evidence against the competing state interest in the procedural rule upon which the evidence would be excluded. (See U.S. v. Gilmore (N.D. Ill. 1998) 997 F.Supp 1019, 1033-34; see also Green v. Georgia (1973) 442 U.S. 95, 97 [99 S.Ct. 2150; 60 L.Ed.2d 738]; Chambers v. Mississippi (1973) 410 U.S. 284, 295 [93 S.Ct. 1038; 35 L.Ed.2d 297].)

Motive is not an element of the crime charged and need not be proven by the prosecution. However, in your deliberations, consider motive or lack of motive as a circumstance in this case. Presence of motive in the defendant or _____________ (insert name of third party) may tend to prove that person’s guilt. Absence of motive in the defendant or _____________ (insert name of third party) may tend to show that the person is not guilty. The weight, if any, to be given the presence or absence of motive is for you to determine.

[Cf. California Jury Instructions - Criminal, CALJIC 2.51 [Motive] (West, 6th Ed. 1996) CALJIC (California).]

    A standard instruction which tells the jury that motive is not an element of the crime charged and need not be proven may mislead or confuse the jury regarding a financial gain death eligibility allegation since such an allegation normally requires a purpose or motive. (See generally, Capital Punishment Handbook (9th Circuit Court of Appeals, 2000) [4.7.3.11a. Pecuniary Gain: Authorities].) Hence, when requested, a clarifying instruction on this point may be appropriate.

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