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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 250
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250.2 Evidentiary Requirements For Defense Theory Instruction

    250.2.1 Defense Theory: Evidence Required For Instruction
    250.2.2 Defendant Need Not Testify To Obtain Instruction On Defense Theory
    250.2.3 Judge Not To Resolve Credibility In Evaluating Evidence In Support Of Instruction On Defense Theory
    250.2.4 Court's Duty To Instruct Regarding Defense Theory: Jury Not Required To Completely Accept Either Theory Of The Case
    250.2.5 Right To Instruction On Inconsistent Defenses

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 250

    See FORECITE National™ 296.2.2.3 [Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory].

    See also FORECITE National™ 3.3.1 [Sufficiency Of Evidence To Require Requested Instruction].

RATIONALE: So long as the record contains any evidence justifying jury consideration of a defense theory, the defendant's testimony should not be necessary for instruction on that theory.

POINTS AND AUTHORITIES: Even if the defendant did not testify, the trial court has a duty to instruct on defenses raised by the evidence. (See People v. DeLeon (CA 1992) 10 CA4th 815, 824 [12 CR2d 825].) For example, "[s]ubstantial evidence of a defendant's state of mind, including an 'honest but unreasonable belief in the necessity to defend against imminent peril to life,' may be present without the defendant's testimony. [Citations.] [Original emphasis.]" (DeLeon, 10 C4th at 824.) Furthermore, "[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence." (People v. Falck (1997) 52 CA4th 287, 299 [60 CR2d 624]; see also People v. Anderson (CA 1983) 144 CA3d 55, 64 [192 CR 409] [Mayberry defense of good-faith belief in consent].) For this reason, "circumstantial evidence alone" has been held to be sufficient to require instruction on self defense. (See Williams v. State (OK 1996) 915 P2d 371, 375-76; Reich-Bacot (TX 1996) 914 SW2d 666, 668 [defendant need not testify to raise self defense]; State v. Graham (NE 1990) 450 NW2d 673, 676 [improper to refuse self-defense instruction because judge apparently believed that a defendant must testify in order to establish his or her good-faith belief that force was necessary]; People v. Hoskins (MI 1978) 267 NW2d 417, 419 ["A defendant need not take the stand and testify in order to merit an instruction on self-defense].) "Undoubtedly, the likelihood of a defendant introducing sufficient evidence to warrant a self-defense instruction is enhanced where the defendant himself testifies. But, the applicability of such an instruction is not precluded without a defendant's testimony." (Bowler v. U.S. (DC App. 1984) 480 A2d 678, 682; see also Smith v. State (TX 1984) 676 SW2d 584, 586-87.)

    See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].

    See also FORECITE National™ 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient].

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

    The jury may infer a person's intent or state of mind from the surrounding circumstances.  Therefore, it is not necessary for the defendant to testify to raise [self defense] [heat of passion] [____________].  Regardless of whether or not the defendant testifies, if after consideration of all the circumstances, the prosecution has not proven beyond a reasonable doubt that the defendant did not act in [self defense] [heat of passion based on adequate provocation] the jury must find the defendant not guilty.

[Source: FORECITE National™.]

    Intent may be proven by circumstantial evidence. Indeed, it can rarely be established by any other means. We simply cannot look into the head or mind of another person. But you may infer the defendant's intent from all of the surrounding circumstances.

[See generally People v. Falck (1997) 52 CA4th 287, 299 [60 CR2d 624]; cf. NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal 5.38 [Proof Of Intent] (State Bar Association of North Dakota, 1999).]

SAMPLE INSTRUCTION # 3:

    You may determine a person's mental state based on the statements and/or conduct of that person which indicate his or her state of mind.  Thus, in deciding the question of [____________] (insert defense theory e.g., "whether the defendant honestly and reasonably believed he was acting in self defense"), consider the defendant's statements and/or conduct in light of all the evidence.  You are the sole judges of the facts.  You must not find the defendant guilty unless the prosecution has proven beyond a reasonable doubt that the defendant [intended to _____________] had the mental state of [________________] at the time of the alleged crime.

[Source: FORECITE National™.]  

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 250

    See FORECITE National™ 3.3.1.3 [Court May Not Evaluate Witness Credibility To Deny Instruction Request].

PRACTICE NOTE: "When instructing the jury, the trial judge must be mindful that the jury is not required to accept, in toto, either the theory of the Commonwealth or that of an accused. The jury has the right to reject that part of the evidence believed by it to be untrue and to accept that found to be true. In so doing, the jury has broad discretion in applying the law to the facts and in fixing the degree of guilt, if any, of a person charged with a crime." (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL Chapter 1 (2) [Summary On Contents] (Lexis, 2000); see also Delacruz v. Commonwealth (VA 1990) 398 SE2d 103, 105.)

    See also FORECITE National™ 27.1.2 [Credibility Of Witness: Jury May Believe A Portion Of Testimony].

    See also FORECITE National™ 29.2.8 [Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony].

    See also FORECITE National™ 297.2.18 [Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions].

PRACTICE NOTE: It has been recognized that the defendant should be allowed instruction of jury on inconsistent defenses. (See e.g., Mathews v. U.S. (1988) 485 US 58, 63-64 [108 SCt 883; 99 LEd2d 54]; Harris v. Scully (2nd Cir. 1985) 779 F2d 875, 879 ["a defendant does not concede the intent to kill by asserting the defense of self defense"]; United States v. Harrison (5th Cir. 1995) 55 F3d 163, 167; United States v. Miguel (9th Cir. 2003) 338 F3d 995 [admission of participation at transfer hearing did not preclude third party defense at guilt trial]; People v. Atchison (CA 1978) 22 C3d 181, 182-83 [148 CR 881]; see also People v. Elize (CA 1999) 71 CA4th 605, 610 [84 CR2d 35] [trial court erred in refusing self defense instruction when defendant testified that gun fired accidentally during the struggle]; People v. Middleton (CA 1997) 52 CA4th 19, 33-34 [60 CR2d 366] [defense's theory of accident did not free the court from the duty of instructing on the partial defense of provocation]; People v. Glenn (CA 1991) 229 CA3d 1461, 1467 [280 CR 609] [defendant testified he intended to stab victim in self defense but later said victim "accidentally" "got stuck" by defendant's knife; defendant said he had no intent to kill; error not to instruct on involuntary manslaughter]; State v. Lira (HI 1988) 759 P2d 869, 873 [defendant may raise defense of consent even though it is inconsistent with other defenses, such as denial that the conduct occurred]; Wilson v. Commonwealth (KY 1994) 880 SW2d 877, 878 [sufficient evidence for initial aggressor qualification of self defense instruction even though it conflicted with the defendant’s own testimony]; Brown v. Commonwealth (KY 1948) 214 SW2d 1018, 1019 [defensive alibi does not preclude instructions on mitigation or justification]; State v. Knowles (ME 1985) 495 A2d 335, 339 [not inconsistent for defendant to deny operating vehicle while intoxicated and under license suspension and also assert that operation of the vehicle under doctrine of duress was necessary to avoid imminent physical harm to himself or another]; State v. Randolph (MO 1973) 496 SW2d 257, 262; People v. Butts (NY 1988) 533 NE2d 660, 662 ["...defendant's entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant's outright denial that he was involved in the crime"]; Musick v. State (TX 1993) 862 SW2d 794, 797; Booth v. State (TX 1984) 679 SW2d 498, 501 [permissible for accused to have jury decide inconsistent defense theories even when they might directly contradict one another]; State v. Callahan (WA 1997) 943 P2d 676, 680 [error to refuse instruction on both self defense and accident]; HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC, specific defenses, introductory comment 7.01 [Self-Defense] p.647 (West, 1998); see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.04 [Affirmative Instructions On Theory Of Defense] p. 11 (Anderson, 4th ed. 1999); MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG § 11.05, comment [Murder In The First Degree- Premeditation- Issue Of Heat Of Passion- Elements] (West, 4th ed. 1999) ["An instruction on manslaughter in the first degree may be required even though there is no direct evidence of a heat of passion and the defendant’s own testimony is inconsistent with such a factor. [Citation]"]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5.01 [Defenses-Generally] (West, 1999); McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:130 [Defensive Issues] (James Publishing, 2000); see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.01, note [Defendant’s Theory Of Case-Note] p. 542 (Bar Association of the District of Columbia, 4th ed. 1993) [defense entitled to an instruction on any issue fairly raised by the evidence regardless of whether the requested instruction is inconsistent with the defendant’s testimony or with the defense theory].)

    For example, in Keyes v. State (Fla. 2001) 804 So2d 373: defense counsel obtained self-defense instruction in a battery prosecution and argued in closing that any touching was inadvertent but self-defense if it occurred.  The prosecutor improperly shifted the burden in closing argument by stating that defendant had to admit crime to claim self-defense, and "if he admits it, check guilty." Arguing theories in the alternative was permissible; the prosecutor’s argument that request for self-defense instruction amounted to admission was incorrect and improper. Although the defense objection to the prosecutor’s argument did not preserve the issue, the error was fundamental: "[C]omments which improperly shift the burden of proof to the defendant present a deprivation of the fundamental right to a fair trial serious enough to require reversal even in the absence of objection or preservation."  (Keyes, 804 So2d at 376.)

    See also FORECITE National™ 253.4.1.19 [Self Defense Does Not Forclose Other Defenses].

    But see FORECITE National™ 253.4.2.7 [Instruction On Both Self Defense And Accident: CAVEAT].

USE NOTE: It has been suggested that if substantial evidence would support a defense inconsistent with that advanced by the defendant, the court should ascertain whether the defendant wishes instructions on the alternative theory. (People v. Sedeno (CA 1974) 10 C3d 703, 717, fn 7 [112 CR 1]; People v. DeLaPlane (CA 1979) 88 CA3d 223, 248 [151 CR 843]; but see People v. Curtis (CA 1994) 30 CA4th 1337, 1357-59 [37 CR2d 304] [defendant's claim that the gun went off accidentally barred relying on both traditional and imperfect self defense].)

Annotation, Accused's Right To Have Jury Instructed As To Both Unintentional Shooting And Self Defense, 15 ALR4th 983.

See also FORECITE National™ 31.2.5 [Mistaken Identification Defense Does Not Foreclose Other Defenses].

See also FORECITE National™ 92.3.2.2 [Right To Inconsistent Defense Theory Of Voluntary Manslaughter When Defendant Denied Killing Under Oath].

See also FORECITE National™ 251.2.1.8 [Alibi Does Not Preclude Instruction On Lesser Included Offenses].

See also FORECITE National™ 252.2.6 [Accidental Killing While Acting In Self Defense].

See also FORECITE National™ 255.3.2.5 [Heat Of Passion/Hot Blood, Provocation: Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Provocation].

See also FORECITE National™ 265.3.6 [Right To Lesser Included Offense Even If Inconsistent With Defendant’s Testimony].