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 VOLUME 4 - CHAPTER 37

    37.1    Motive Not An Element: Improper When Motive Is Included In The Charge

RATIONALE: A general instruction that motive is not an element of the charge may conflict with some offenses which include motive as an element.

POINTS AND AUTHORITIES: Some standard pattern instructions inform the jury that motive is not an element of the charged offense. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.51 [Motive] (West, 6th Ed. 1996).) However, for some offenses motive is an element.

    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 F2d 1106, 1109-1111 [prosecution required to prove a corrupt motive].) 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 C4th 698, 718-20 [42 CR2d 355]; People v. Superior Court (Aishman) (CA 1995) 10 C4th 735, 741 [42 CR2d 377].)

    See also FORECITE National™ 250.7.2 [When The Defendant Is Relying On A Necessity (Choice Of Evils/Emergency) Defense The Jury Should Be Instructed That Motive Is Relevant].

    See also FORECITE National™ 250.7.3 [Motive: Application To Third Party Suspect].

    See also FORECITE National™ 302.3.1 [Financial Gain Special: Role Of Motive Instruction].

    Accordingly, when the charged offense includes motive as an element the jury should not be given the standard instruction that motive is not an element of the charged offense.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

PRACTICE NOTE: "'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 NW2d 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 NE2d 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 F2d 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 F2d 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 CA4th 1088, 1098 [24 CR2d 922] [the words motive, intent and malice are "separate and disparate mental states"].) 

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

PRACTICE NOTE: Instructions on motive have been used either to enunciate its immateriality to the proof of the case or to distinguish it from intent. (See e.g., 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).) However, 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 NE2d 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.)

RESEARCH NOTE:

Annotation, Necessity That Trial Court Charge Upon Motive In Homicide Case, 71 ALR2d 1025.

See also generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

RATIONALE: A person cannot be motivated to act by a fact or circumstance unless the person was aware of the fact or circumstance.

POINTS AND AUTHORITIES: "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 SE 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).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

PRACTICE NOTE: Wall v. State (MS 1980) 379 So2d 529, 532, held that 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.

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

RATIONALE: Without a specific instruction the jury may not understand that motive alone is insufficient to prove the defendant guilty.

POINTS AND AUTHORITIES: Due process requires substantial evidence of guilt. (Jackson v. Virginia (1979) 443 US 307, 318-20 [99 SCt 2781; 61 LEd2d 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 F3d 1104, 1109 [motive alone insufficient to prove larceny]; see also McGowan v. State (IN 1996) 671 NE2d 1210, 1214 [standing alone, evidence of motive, presence or opportunity is insufficient to prove guilt]; Marcum and Hoskins v. Commonwealth (KY 1973) 496 SW2d 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 NE2d 630, 633 [evidence of motive and consciousness of guilt insufficient to prove guilt]; State v. Nichols (OH 1996) 689 NE2d 98, 102 ["motive alone is insufficient to convict"]; but see People v. Johnson (MI 1991) 468 NW2d 307, 310 [defendant not entitled to instruction that motive was insufficient to establish guilt where there was no evidence of alleged motive].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

RATIONALE: 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 not irrelevant.

POINTS AND AUTHORITIES: "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 C3d 180, 190 [84 CR 711].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

RESEARCH NOTE:

Annotation, Necessity That Trial Court Charge Upon Motive In Homicide Case, 71 ALR2d 1025.

See also generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

RATIONALE: A general instruction that motive is not an element of the charge may conflict with some offenses which include motive as an element.

POINTS AND AUTHORITIES: Willful refusal to give testimony to the grand jury has been recognized as a basis for a charge of obstructing justice. (See U.S. v. Banks (11th Cir. 1991) 942 F2d 1576, 1577-78). Such a charge requires a corrupt motive to impede the due administration of justice. (U.S. v. Banks (11th Cir. 1993) 988 F2d 1106, 1109-1111 [prosecution required to prove a corrupt motive].) 

    The defendant need not affirmatively establish that fear was genuine and substantiated. "Fear of reprisal" is a viable defense theory to an obstruction charge because it negates the motive element of the offense.  (Ibid.) Hence, the failure to instruct upon such a defense theory is error. (U.S. v. Banks, 942 F2d at 1579-80.) 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

RATIONALE: 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.

POINTS AND AUTHORITIES: 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 CA2d 859, 864 [20 CR 540]; see also Calvert v. State Bar (CA 1991) 54 C3d 765, 777 [1 CR 684]; see also FORECITE National™ 27.6.4 [Bias Of Police Or Government Witness: Potential Benefit From Forfeiture In Drug Case].) Similarly, a witness that has or will receive a benefit from the prosecution in exchange for testifying may have a motive to testify falsely. (See generally FORECITE National™ 25.7 [Witness Or Informant Receiving Benefit From Prosecution].)

    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 C2d 752, 758 [141 P2d 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 ..."].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 5.3; 7.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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 VOLUME 4 - CHAPTER 37

PRACTICE NOTE: "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 F3d 1104, 1109; People v. Wilson (CA 1992) 3 C4th 926, 939 [13 CR2d 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 FORECITE National™ 300.11.1 [Instruction Allowing Jury To Consider Irrelevant Evidence Violates the Federal Constitution]; see also Wharton’s Criminal Evidence (West 15th ed. 1986) § 4:45, pp. 479-82.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.

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VOLUME 4 - CHAPTER 37

PRACTICE NOTE: The admissibility of the defendant's financial condition is generally discussed in FORECITE National™ 37.10 [Defendant’s Need For Money As Motive To Commit Crime]. However, regardless of the relevance of such evidence in a property crime it is of even less probative value and has greater prejudicial effect when the crime is primarily one of violence.  (U.S. v. Mitchell (9th Cir. 1999) 172 F3d 1104, 1109; People v. Wilson (CA 1992) 3 C4th 926, 939 [13 CR2d 259].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.9 [Motive].

See 7th Circuit Federal Jury Instructions - Criminal 3.19.