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250.1 Grounds For Instruction On Defense Theory

    250.1.1 Litigant’s Right To Instruction On Theory Of Case
    250.1.2 Constitutional Right To Present A Defense As Ground For Defense Theory Instruction
    250.1.3 Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction
    250.1.4 Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction
    250.1.5 Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction

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PRACTICE NOTE: "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 C4th 548, 572 [34 CR2d 607]; see also Logacz v. Brea Community Hospital, et al. (CA 1999) 71 CA4th 1149 [84 CR2d 257]; State v. Beigenwald (NJ 1991) 594 A2d 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 F2d 41, 47; see also U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 ["jury must be instructed as to the defense theory of the case"]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; State v. O'Daniel (HI 1980) 616 P2d 1383, 1390; People v. Miller (IL 1994) 630 NE2d 1125, 1130; State v. Selgado (NM 1966) 413 P2d 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 sum, "[i]t is reversible error for the court to refuse a request to instruct as to defendant's theory of the case if there is evidence to support it." (U.S. v. Leach (1st Cir. 1970) 427 F2d 1107, 1112.)

    See also NCJIC 300.4.2 [Failure To Instruct Or Directed Verdict On Element Of Charge].

    See also NCJIC 250.1.2 [Constitutional Right To Present A Defense As Ground For Defense Theory Instruction].

    See also NCJIC 250.1.3 [Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction].

    See also NCJIC 300.5.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].

    See also NCJIC 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].

See 6th Circuit Pattern Jury Instructions - Criminal 6.01.

See also 8th Circuit Model Jury Instructions - Criminal 9.05.

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    See NCJIC 300.6 [Inadequate Instruction On Defense Or Defense Theory].

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PRACTICE NOTE: "[A] defendant's right to submit a defense for which he has an evidentiary foundation is fundamental to a fair trial...." (Whipple v. Duckworth (7th Cir. 1992) 957 F2d 418, 423; U.S. v. Pedigo (7th Cir. 1993) 12 F3d 618, 625 [standard instruction on elements of conspiracy was not sufficient to inform the jury of the defendant’s buyer-seller theory]; see also U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-858 [the right to have the jury instructed as to the defendant’s theory of the case is one of those rights so basic to a fair trial that failure to instruct where there is evidence to support the instruction can never be considered harmless error]; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 571-72 ["[w]e have held that failure to instruct the jury on the defendant's theory of the case, where there is evidence to support such instruction, is reversible per se and can never be considered harmless error. [Citation.]"; Taylor v. Withrow (E.D.Mich. 2001) 154 FSupp2d 1037 [failure to give instruction on self-defense went to a "central issue of guilt or innocence" and thus affected the fairness of the trial]].)

    Hence, the right to an instruction on a defense theory is guaranteed by the 5th, 6th and 14th Amendment rights to due process and fair trial by jury. (See also NCJIC 300.5.2 [Improper Presumption Which Lessens The Prosecution's Burden ].)

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    See NCJIC 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].

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PRACTICE NOTE: Jurisdictions which purport to preclude any instructions which comment on specific evidence or advance particular theories may be subject to attack based on due process fairness principles. (See Wardius v. Oregon (1973) 412 US 470, 472 [93 SCt 2208; 37 LEd2d 82]; see also NCJIC 6.2.1 [Instructions Must Not Be Argumentative].) For example, ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d § 608 [Defenses-Alibi] (Lexis, 2nd ed. 1997), rejects the defendant’s right to a specific instruction on alibi because it is "a position the defendant may assert to create a reasonable doubt of his guilt. Therefore, no instruction should be given." However, in ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d § 205 [Evidentiary Instructions-Statutory Presumption] (Lexis, 2nd ed. 1997), the prosecution is specifically permitted to obtain instruction on specific evidentiary "presumptions" which really are no more than comments on specific evidence and instruction on specific prosecution "positions."

    Thus, the failure to provide specific instruction on a defense theory may result in unbalanced instruction which favor the prosecution. "The instruction must adequately express the defense theory." (Citation.) "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 A2d 147, 154-56 [instruction on general denial, self defense and proximate cause did not adequately express defense theory of independent cause].)

    In sum, federal constitutional principles of reciprocal fairness and due process should permit the defendant to obtain specific evidentiary instructions and defense theory instructions upon request. (See also NCJIC 300.6 [Inadequate Instruction On Defense Or Defense Theory].)