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

 VOLUME 11 - CHAPTER 250
Go to Volume 11 Table of Contents  -  Go to Chapter 250 Table of Contents

250.3 Procedural Requirements For Defense Theory Instruction

    250.3.1 Duty Of Court To Instruct Sua Sponte On Unrequested Defense Or Defense Theory
    250.3.2 Asserting Defense Available To Third Party
    250.3.3 Defense Theory: Requirement Of Notice To Prosecution

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

 VOLUME 11 - CHAPTER 250

PRACTICE NOTE: It has also been recognized that the trial court has a duty to protect the defendant's rights by assuring that the defense is not defeated by mere inadvertence. (See FORECITE National™ 3.2.12 [Duty to Protect The Defendant's Rights].)

    Hence, the trial court may have a sua sponte duty to instruct on defenses or defense theories. (See FORECITE National™ 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].)

    Moreover, even when a defensive instruction is offered, the trial court have a duty to correct any deficiencies in the instruction. (See FORECITE National™ 3.3.3 [Duty To Correct Defects].)

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

 VOLUME 11 - CHAPTER 250

PRACTICE NOTE: "There are a number of criminal law doctrines -- such as complicity rules, felony murder, and the Pinkerton doctrine -- through which an actor may be held liable for causing or assisting another’s criminal conduct." (Robinson, Criminal Law Defenses (West, 1984) § 37(a) p. 170.)

    Logically, a defense which is available to the perpetrator should also be available to the person who is being charged vicariously under such a theory. "Where the perpetrator has a failure of proof or offense modification defense, especially where he has not satisfied even the objective elements of the offense, the confederate should get the benefit of the defense, since no offense has in fact been committed. [Citations.]" (Robinson, Criminal Law Defenses (West, 1984) § 37(a) p. 171.) Moreover, in accomplice liability and conspiracy situations, even though conviction of the perpetrator (accomplice liability) or at least one other coconspirator (conspiracy) is not generally required, the guilt of such persons is often an essential element of the charge. (See FORECITE National™ 51.1.6 [Accomplice Liability: Guilt Of Perpetrator As Required Element].) In such situations, any defense available to the perpetrator or coconspirator would necessarily be available to the accused in arguing that the perpetrator’s or conspirator’s guilt has not been proven. (See U.S. v. Lopez (M.D.Cal. 1987) 662 FSupp 1083, 1087 [no accomplice liability for prison escape if the prisoner had a justification defense: accomplice liability requires proof of a criminal act and a justification defense is available where, under the circumstances, there is no wrongful act; prisoner’s successful necessity defense would bar conviction of the person who aided escape].)

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

 VOLUME 11 - CHAPTER 250

PRACTICE NOTE: In some jurisdictions the defendant may be required to give the prosecution prior notice of a defense or defense theory. (See e.g., People v. Low (CO 1987) 732 P2d 622, 632 [error to admit expert psychiatric testimony where defendant had not given prior notice to prosecution]; see also Robinson, Criminal Law Defenses (West, 1984) § 3(a) pp. 12-14 [discussing burden of pleading defense]; FORECITE National™ 251.2.1.13 [Alibi: Sanction For Failure Of Defendant To Give Pretrial Notice – Exclusion Of Evidence Too Onerous].)

    However, "[s]trict application of a rule precluding admission of defense evidence due to the defendant’s failure to give notice to the defense may be unconstitutional ... at least where the purpose of the rule may be served by means less devastating to the defense." (Robinson, Criminal Law Defenses (West, 1984) (2000 Pocket Part) § 3(a).) For example, in Escalera v. Coombe (2nd Cir. 1987) 852 F2d 45, it was held that exclusion is improper where there is no showing of deliberate delay on the part of the defendant. (See also U.S. ex rel. Robinson v. McGinnis (C.D.Ill. 1984) 593 FSupp 175, 180 [same]; Morgan v. State (FL 1984) 453 So2d 394, 397 [error to exclude insanity defense where prosecution had notice and defense not given opportunity to show cause for failure to comply with notice requirements]; State v. Nelson (NC 1985) 333 SE2d 499, 502 [prejudicial error to refuse to allow insanity defense]; but see Taylor v. Illinois (1988) 484 US 400 [108 SCt 646; 98 LEd2d 798] [rejected rule that would require misconduct on the part of the defendant rather than counsel as a basis for finding willful violation of the notice requirement].)

    In Taylor, a divided Supreme Court rejected the defendant’s argument that exclusion of defense evidence for a discovery rule violation necessarily violates the defendant’s federal constitutional right to compulsory process. The court distinguished the defendant’s right to present a defense under the compulsory process clause from other 6th Amendment rights which arise automatically when the defendant is charged.

    The matter may only be resolved after considering the appropriate factors including "the fundamental character" of the defendant’s right to present a defense; the integrity of the adversarial process and the need for reliable evidence; the interest in the fair and efficient administration of justice; potential prejudice to the truth-finding function of the trial; the willfulness of violations designed to gain a tactical advantage; and the ease of compliance with the procedural rule. (Taylor, 484 US at 414-15.)