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3.3 Duty Of Court: Requested Instructions

     3.3.1 Sufficiency Of Evidence To Require Requested Instruction

    3.3.1.1 The ""Evidence Deserving Of Consideration"" Or Substantial Evidence Standard
    3.3.1.2 The "Any Evidence"" Standard
    3.3.1.3 Court May Not Evaluate Witness Credibility To Deny Instruction Request
    3.3.1.4 Evidence To Be Viewed In Light Most Favorable To Party Requesting Instruction
    3.3.1.5 Doubt Resolved In Favor Of Defendant
    3.3.1.6 Instruction Required Even If Evidence Presented By The Prosecution
    3.3.1.7 Defendant's Testimony, Even If "Less Than Convincing," Is Sufficient For Instruction
    3.3.1.8 Evidence Is Sufficient For Instruction Where Judge Has Found The Defense Evidence Sufficient In A Different Context
    3.3.1.9 Evidentiary Standard For Issues As To Which The Defendant Has The Burden Of Proof    

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PRACTICE NOTE: Under this standard, "evidence must be sufficient to allow a reasonable jury to find the defense proved." (U.S. v. Perez (7th Cir. 1996) 86 F3d 735, 736.) Hence, it has been held that a requested instruction must be given if the accused presents "evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist." (People v. Barrick (CA 1982) 33 C3d 115, 132 [187 CR 716] [internal citations and quotation marks omitted].)

See generally, Wharton’s Criminal Procedure (West, 13th ed. 1989) § 465.

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PRACTICE NOTE: Some courts only require that there be some basis in the evidence. (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]; see also People v. Dillon (CO 1982) 655 P2d 841, 845 ["any evidence in the record to support it ... no matter how improbable or unreasonable defendant’s theory"]; State v. Powell (NJ 1980) 419 A2d 406, 412 ["very slight evidence on a theory of defense will justify the giving of an instruction"]; Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.05(A), pp. 14-15 [Whole Law Of Case Must Be Given - In General] (Anderson, 4th ed. 1999) ["In a criminal case, it is the duty of the court to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony. The defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions. That is true no matter how preposterous the defendant's evidence may be"]; United States v. Young (5th Cir.1972) 464 F2d 160, 164 ["defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility"].)

    Under this standard it is said that a defendant "is entitled to an instruction on every defense or theory of defense having any support in the evidence... no matter how weak, inconclusive or unsatisfactory the evidence may be." (State v. O’Daniel (HI 1980) 616 P2d 1383, 1390; see also Graves v. U.S. (DC 1989) 554 A2d 1145, 1147 [defendant entitled to instruction on theory of defense supported by "any evidence however weak"]; Poore v. State (NM 1980) 608 P2d 148, 150; see also State v. Ortega (NM 1966) 419 P2d 219, 229 [where evidence supports a defendant’s theory which would require acquittal or lesser degree of crime, it is error to refuse to instruct on the theory]; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.01, note [Defendants Theory of Case-Note] p. 541 (Bar Association of the District of Columbia, 4th ed. 1993) ["When a defendant requests an instruction on a theory of the case that negates his guilt of the crime charged, and that instruction is supported by any evidence, however weak, the court must give an instruction stating the substance of the defendant’s theory"]; Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-7(a)(2), p. 302 ["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..."].)

    A sample form for a defense theory instruction is the following:

    Evidence has been presented that the defendant [set out the defense]. The state must prove beyond a reasonable doubt, as an additional element of the offense charged, that the defendant was not [set out the defense]. The defendant does not have the burden of proof as to this defense. If the state has failed to prove beyond a reasonable doubt that the defendant did not [set out defense], the defendant is entitled to a verdict of not guilty.  

(NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal K-3.01 [Defense-Burden of Proof] (State Bar Association of North Dakota, 1999); see also State v. Thiel (ND 1987) 411 NW2d 66, 67.)

See generally, Wharton’s Criminal Procedure (West, 13th ed. 1989) § 465.

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PRACTICE NOTE: If a defendant's theory of the case is supported by substantial evidence, the court must instruct on the theory even if the evidence is not credible. (People v. Burnham (CA 1986) 176 CA3d 1134, 1143 [222 CR 630]; see also People v. Glenn (CA 1991) 229 CA3d 1461, 1465 [280 CR 609].) The trial court should not determine the credibility of witnesses, including the defendant. (People v. Marshall (CA 1996) 13 C4th 799, 847 [55 CR2d 347]; People v. Wickersham (CA 1982) 32 C3d 307, 324 [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.)

    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].)

    "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.) Instead, the test is whether "there is ‘any foundation in the evidence’ sufficient to bring the issue into the case, even if the evidence is ‘weak, insufficient, inconsistent, or of doubtful credibility.’" (Ibid; see also U.S. v. Garner (6th Cir. 1976) 529 F2d 962, 970; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.01, commentary [Defense Theory] (1991).)

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PRACTICE NOTE: The 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 [when appellate issue is whether jury should have been instructed upon a particular theory of defense, the evidence must be viewed in the light most favorable to the defendant]; 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).)

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PRACTICE NOTE: "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. Watts (CA 1976) 59 CA3d 80, 86 [130 CR 601] [sua sponte]; People v. Wilson (CA 1967) 66 C2d 749, 763 [59 CR 156]; People v. Gaines (NY 1994) 83 NY2d 925, 927 [where issue on appeal is whether a particular theory of defense should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant].)

    See also NCJIC 83.6.2 [Lesser Included Offense As Object Of Conspiracy: Reasonable Doubt Must Be Resolved In Favor Of Lesser Offense].

    See also NCJIC  275.5 [Doubt As To Greater Offense Must Be Resolved In Favor Of Lesser].

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PRACTICE NOTE: 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].)

    See NCJIC 24.2.1.2 [Evidence Includes Testimony And Exhibits Regardless Of Which Party Presented It].

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PRACTICE NOTE: 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." (See e.g., 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. Turner (CA 1990) 50 C3d 668, 690 [268 CR 706]; People v. Lemus (CA 1988) 203 CA3d 470, 477 [249 CR 897]; People v. Phillips (IL 1989) 541 NE2d 1298, 1305; Hunter v. State (TX 1983) 647 SW2d 657, 658.)

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PRACTICE NOTE: If the trial judge has given a related instruction which implies that the judge credited the defense evidence, then the judge's opinion is entitled to "some weight" on appeal (e.g., intoxication instruction given as to one element implies that intoxication instruction should have been given as to other elements.) (See People v. Stevenson (CA 1978) 79 CA3d 976, 985 [145 CR 301].)

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PRACTICE NOTE: The "any evidence" standard may be inappropriate for defenses as to which the defendant has the burden of proof. (See e.g., State v. Person (CT 1996) 673 A2d 463, 467.)