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51.3 Identity Defense: Relationship To Presumption Of Innocence

    51.3.1 Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That Another Person Committed The Crime
    51.3.2 Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That He/She Didn’t Commit Crime
    51.3.3 Rejection Or Disbelief Of Identity Defense: Prosecution Must Still Prove Every Element
    51.3.4 Rejection Or Disbelief Of Identity Defense Is Not Evidence Of Guilt
    51.3.5 Disbelief Of Identity Defense: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication
    51.3.6 Mistaken Identity: Relationship To Presumption Of Innocence

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    51.3.1    Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That Another Person Committed The Crime

RATIONALE: When the defendant contends that he/she did not commit the criminal act (e.g., alibi, third party guilt, mistaken identification) the jury may improperly tend to assume that the defendant must prove someone else committed the offense. Hence, a special burden of proof instruction should be included with the defense theory instruction.

POINTS AND AUTHORITIES: It is axiomatic that the defendant need not prove that another person committed the crime. (See FORECITE National™ 6.2.12 [Defense Theory That Negates Element Should Not Be Referred To As A "Defense"]; see also FORECITE National™ 11.2.2 [Instruction That The Defendant Does Not Have The Burden Of Proof As To Defense Theory That Negates An Element Of The Charge]; FORECITE National™ 251.9.2 [Third Party Guilt: Relationship To Presumption Of Innocence – Prosecution’s Duty To Disprove].)

    For example, 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." (People v. Hall (CA 1986) 41 C3d 826, 833 [226 CR 112]; 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, 326 ["There is no burden on the defendant to produce any evidence and the defendant does not have to prove who committed the crime"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.1; 4.1; 4.3].

SAMPLE INSTRUCTION # 1:

    It is for you to decide whether, the evidence sufficiently identifies this defendant beyond a reasonable doubt as the perpetrator of the alleged crime. It is not necessary that the defendant show that another person committed the alleged offense.

[See generally People v. Hall (CA 1986) 41 C3d 826 [226 CR 112]; People v. Madison (CA 1935) 3 C2d 668 [46 P2d 159]; Mullis v. Commonwealth (VA 1987) 351 SE2d 919; see also GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Identification: Burden Of Proof] Y(2), p. 39 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

SAMPLE INSTRUCTION # 2:

    You have heard evidence that a person other than the defendant may have committed the offense with which the defendant is charged. The defendant is not required to prove _________________ (insert defense theory). The defendant is entitled to an acquittal if the evidence raises a reasonable doubt in your mind as to the defendant's guilt. Such evidence may by itself raise a reasonable doubt as to the defendant's guilt. However, its weight and significance, if any, are matters for your determination. 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.

[SSee generally People v. Hall (CA 1986) 41 C3d 826 [226 CR 112]; People v. Madison (CA 1935) 3 C2d 668 [46 P2d 159]; Mullis v. Commonwealth (VA 1987) 351 SE2d 919.]

SAMPLE INSTRUCTION # 3:

    The defendant contends that ____________ (insert defense theory e.g., another person committed the charged offense, the eyewitness identification was mistaken, etc.,). However, the defendant is not required to prove that _______________ (insert defense theory). To establish the defendant's guilt, the prosecution must prove beyond a reasonable doubt that the defendant was the person who committed the charged crime. 

    Therefore, if you have a reasonable doubt that the defendant committed the charged crime, you must vote not guilty.

[See generally People v. Hall (CA 1986) 41 C3d 826 [226 CR 112]; People v. Madison (CA 1935) 3 C2d 668 [46 P2d 159]; Mullis v. Commonwealth (VA 1987) 351 SE2d 919; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim Append-301.10 [Alibi ] (TRCC, 1999).]

SAMPLE INSTRUCTION # 4:

    The defendant sets up an ______________ (insert defense theory) in this case, and the burden of proof is not changed when [he] [she] undertakes to present evidence in support of this defense theory. If by reason of the evidence in relation to the defense theory of _____________ (insert defense theory), when considered with all the other evidence, the jury has a reasonable doubt as to defendant's guilt, the defendant must be acquitted, even though you may not be able to find that the ____________ (insert defense theory) has been fully proven.

[See Carlisle v. State (AL 1978) 356 So2d 702, 703.]

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    51.3.2    Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That He/She Didn’t Commit Crime

PRACTICE NOTE: With regard to defense theories such as alibi, third party guilt and mistaken identification there may be a tendency for the trial to improperly focus on the question of whether or not the defendant has shown that he/she did not commit the crime.

    Hence, instruction on such defense theories should make it clear that the defendant has no obligation to disprove the allegation that he/she committed the crime. (See FORECITE National™ 51.3.1 [Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That Another Person Committed The Crime]; see also FORECITE National™ 251.2.3.2 [Alibi: Prosecution’s Burden To Disprove]; see also FORECITE National™ 300.4.4 [Misinstruction On Element Of Charge].)

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    51.3.3    Rejection Or Disbelief Of Identity Defense: Prosecution Must Still Prove Every Element

    See FORECITE National™ 251.2.3.3 [Rejection Or Disbelief Of Alibi Evidence: Prosecution Must Still Prove Every Element].

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    51.3.4    Rejection Or Disbelief Of Identity Defense Is Not Evidence Of Guilt

    See FORECITE National™ 251.2.3.4 [Alibi: Rejection Or Disbelief Of Alibi Evidence Is Not Evidence Of Guilt].

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    51.3.5    Disbelief Of Identity Defense: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication

    See FORECITE National™ 33.5.3 [False Explanation Of Possession Of Stolen Property: Whether Sufficient To Sustain Finding Of Theft].

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    51.3.6    Mistaken Identity: Relationship To Presumption Of Innocence

    See FORECITE National™ 51.3.1 [Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That Another Person Committed The Crime].

    See also FORECITE National™ 250.4.2 [Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden].