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250.4 Defenses And Defense Theories: Burden Of Proof On Prosecution

    250.4.1 Defense Theory: Not Included In General Burden Of Proof Instruction
    250.4.2 Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden
    250.4.3 Presumption Of Innocence: Improper To Label A Theory Which Negates An Element Of The Charge As A “Defense”
    250.4.4 Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant
    250.4.5 Defense Theories: Failure To Instruct As Creating A Conclusive Presumption
    250.4.6 Defense Theory Which Negates Intent: Jury Must Acquit If It Has A Reasonable Doubt
    250.4.7 Improper To Shift Burden Of Proof To Defendant Where Defense Incorporates Element Of Charge
    250.4.8 Defense Theory Instructions: Benefit Of Doubt To Defendant

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PRACTICE NOTE: General instructions on elements of the charge are not adequate substitutes for specific defense theory instructions. (See e.g., U.S. v. Regan (2nd Cir. 1991) 937 F2d 823, 826 [general mistake instruction not adequate substitute for specific mistake of law defense offered by the defendants]; U.S. v. Haddock (10th Cir. 1992) 956 F2d 1534, 1546; U.S. v. Morris (11th Cir. 1994) 20 F3d 1111, 1116 [general instructions on "willfulness," "knowledge" and "intent to defraud" not sufficient substitutes for specific instruction on defense theory of good faith].)

    "Instructions must be specifically precise to enable the jury to recognize and understand the defense theory, test it against evidence presented at trial, and then make a decision, based on the theory and the evidence, whether defendant is guilty. [Citation.]" (O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 7.03 [Requests For Instructions] at 469, fn. 20 (West, 5th ed. 2000); see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 3-5; Cooper, KENTUCKY INSTRUCTIONS TO JURIES § 1.04 [Affirmative Instructions On Theory Of Defense] (Anderson, 4th ed. 1999) ["When the accused admits facts constituting essential elements of the offense with which he is charged, and relies upon facts and circumstances amounting to an avoidance of the crime, or having the effect of exonerating him of criminal intent, he is entitled to a concrete instruction on his excuse or theory of the case and a mere general instruction is insufficient"].)

    "Jury instructions that merely set forth the elements of the offense and the burden of proof, without more, do not encompass a theory of defense." (People v. Marquez-Lopez (CO 1997) 952 P2d 788, 792.)

   Nor is the general burden of proof instruction adequate to inform the jury as to the burden applicable to affirmative defenses. (See People v. Adrian (CA 1982) 135 CA3d 335, 342 [185 CR 506]; see also People v. Brown (CA 1984) 152 CA3d 674, 677-78 [199 CR 680] [Former CALJIC 2.91 and 2.20 'are not alone sufficient to render the failure to give requested instruction linking reasonable doubt to identification harmless error'].) All the general burden of proof instruction does is tell the jury that a reasonable doubt as to "guilt" warrants an acquittal. (See Adrian, 135 CA3d at 342.) This instruction works fine when the jury is reviewing the elements of the offense. But as to a defense theory such as accident, the absence of a specific burden instruction erroneously suggests that the defendant is required to prove his or her theory before the defense is applicable. (See e.g., U.S. v. Vicaria (11th Cir. 1994) 12 F3d 195, 197 [reversal required for failure to give a "theory of defense" instructions including: "If ... the government has failed to prove, beyond and to the exclusion of every reasonable doubt, that this is not true, you must acquit [the defendant] of all charges"]; see also NCJIC 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].)

    For example, in California many affirmative defenses in the standard pattern instructions (CALJIC) include a statement of the burden of proof. (See e.g., identity (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.91 [Burden Of Proving Identity Based Solely On Eyewitness] (West, 6th Ed. 1996); alibi (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.50 [Alibi] (West, 6th Ed. 1996); unconsciousness (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.30 [Unconscious Act–Defined–Burden Of Proof] (West, 6th Ed. 1996); and self defense (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.15 [Charge Or Murder–Burden Of Proof Re: Justification Or Excuse] (West, 6th Ed. 1996)); see also People v. Simon (CA 1995) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden].)

    As observed by the Wisconsin Jury Instruction Committee: "Many well-recognized defenses negative a required element of the crime. For example, voluntary intoxication and mistake are defenses only when they negative the existence of a state of mind essential to the crime. [Footnote omitted.] One could argue that a separate instruction on such matters is never required because the existence of the mental state is always covered by the instructions defining the substantive offense. Such a literal application of the rule being discussed here obviously would run counter to long-standing practice. The jury ought to be told that the law of the state recognizes that voluntary intoxication or good faith mistake may result in the nonexistence of criminal intent. The recommended practice is to relate the explanation of the defense directly to the element to which it relates. [Footnote omitted.]" (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 700, III [Law Note: Theory Of Defense Instructions] (University of Wisconsin Law School, 2000).)

    Moreover, one of the recommended techniques for improving the understandability of jury instructions is to make them more concrete and less abstract. (See e.g., Elwork, Sales & Alfini, Making Jury Instructions Understandable (Michie 1982); Carrow & Carrow, "Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions," 79 Columbia Law Review 1306 (1979); Strawn & Buchanan, "Jury Confusion: A Threat to Justice," 59 Judicature 478 (1976).) "Emphasizing the facts that relate to a required element is one way to help the jury make the connection between an abstract definition and the case to be decided. Referring to facts can also help to focus the jury’s attention on the important issues in the case. For example, if the statutory definition of a crime is complicated and the defense is one of alibi, the jury will be greatly aided by an instruction that helps focus their attention on the alibi issue, rather than on parts of a complicated definition that are not in dispute. [Footnote omitted.]" (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 700(V) [Law Note: Theory Of Defense Condition] (University of Wisconsin Law School, 2000).)

    Hence, "[w]hen the accused admits facts constituting essential elements of the offense with which he is charged, and relies upon facts and circumstances amounting to an avoidance of the crime, or having the effect of exonerating him of criminal intent, he is entitled to a concrete instruction on his excuse or theory of the case and a mere general instruction is insufficient." (Cooper, KENTUCKY INSTRUCTIONS TO JURIES § 1.04 [Affirmative Instructions On Theory Of Defense] p. 11 (Anderson, 4th ed. 1999); see also Cheser v. Commonwealth (KY 1994) 904 SW2d 239, 241-42; Hayes v. Commonwealth (KY 1993) 870 SW2d 786, 788 [defendant has right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions].)

    For example, "[e]ven a correct and complete instruction on the specific intent requirement does not fairly cover the issue [of claim of right] without an accompanying defense instruction, if requested. [Citaton.]" (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:32, comment [Theft-Obtaining Or Exterting Unauthorized Control] (Micpel, 1999); see also Smith v. State (MD 1985) 486 A2d 196, 198; Pulley v. State (MD 1978) 382 A2d 621, 624-26 [even though alibi issue is "fairly covered" by more general instructions on criminal agency and burden of persuasion, separate instruction on alibi must be given upon request]; State v. Crisler (MN 1979) 285 NW2d 679, 682 [cursory reference to accidental death, in instruction on the law of self defense in a homicide prosecution inadequate to explain the defense of accidental death].)

    Finally, 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. (Stack v. U.S. (DC 1986) 519 A2d 147, 156 [instruction on general denial, self defense and proximate cause did not adequately express defense theory of independent cause].) 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. (See 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).)

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PRACTICE NOTE: A criminal defendant is entitled upon request to an instruction pinpointing the theory of the defense. (U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating defense to burden of proof]; People v. Wharton (CA 1991) 53 C3d 522, 570 [280 CR 631]; see also U.S. v. Goldson (2nd Cir. 1992) 954 F2d 51, 55; People v. Mickey (CA 1991) 54 C3d 612, 698 [286 CR 801]; Lybarger v. People (CO 1991) 807 P2d 570, 581-83; Best v. State (WY 1987) 736 P2d 739, 744-45.)

    Such an instruction may "'direct attention to evidence from ... which a reasonable doubt could be engendered.' [Citation]." (People v. Hall (CA 1980) 28 C3d 143, 159 [167 CR 844]; People v. Simon (CA 1995) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Sears (CA 1970) 2 C3d 180, 190 [84 CR 711].)

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    250.4.3    Presumption Of Innocence: Improper To Label A Theory Which Negates An Element Of The Charge As A "Defense"

PRACTICE NOTE: Referring to a defense theory which seeks to negate an element of the charge as a "defense" may improperly shift the burden of proof from the prosecution to the defendant. (See e.g., U.S. v. Duran (10th Cir. 1998) 133 F3d 1324, 1331 [ "...the court presented entrapment 'as a defense' asserted by the defendant and failed to tell the jury either that lack of entrapment had become an element of the crime or that the government bears the burden of proving lack of entrapment...."]; see also Robertson v. State (MD 1996) 685 A2d 805, 815; Commonwealth v. Bowden (MA 1980) 399 NE2d 482, 489 [the word "defense" is misleading because it implies that the defendant bears a burden of persuasion rather than merely that of introducing some evidence of the matter]; see also Connolly v. Commonwealth (MA 1979) 387 NE2d 519, 524; Commonwealth v. McLeod (MA 1975) 326 NE2d 905, 906 [reference to alibi as a "defense"].)

    In sum, when a defense theory which negates an element of the charge is described to the jury as a "defense" it suggests that there is a burden on the defendant to establish "the defense." Such a suggestion improperly shifts the burden of proof to the defense in violation of the federal constitution. (See Francis v. Franklin (1985) 471 US 307 [105 SCt 1965; 85 LEd2d 344]; Sandstrom v. Montana (1979) 442 US 510, 521 [99 SCt 2450; 61 LEd2d 39].)

    For example, it has been held that it is improper to describe alibi as a "defense." (See NCJIC 251.2.3.1 [Alibi: Should Not Be Referred To As A Defense]; see also NCJIC 252.2.2 [Accident: Should Not Be Referred To As A "Defense"]; see also NCJIC 253.4.3 [Burden Of Proof].)

    See also NCJIC 250.4.7 [Improper To Shift Burden Where Defense Incorporates Element Of The Charge].

    See also NCJIC 250.4.4. [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].

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RATIONALE: Without an explanatory instruction the jury may improperly assume the defendant has the burden of proving a defense theory which negates an element of the offense.

POINTS AND AUTHORITIES: The federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) place the burden on the prosecution to prove every element of the charge beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307 [99 SCt 2781; 61 LEd2d 560].)

    These rights are implicated if the jury believes that the defendant has the burden of proving a defense theory which negates an element of the charge. (See e.g., Sandstrom v. Montana (1979) 442 US 510, 521 [99 SCt 2450; 61 LEd2d 39]; Francis v. Franklin (1985) 471 US 307 [105 SCt 1965; 85 LEd2d 344].)

    Hence, the accused should have the right to an instruction explaining that the prosecution must disprove the defense theory beyond a reasonable doubt.  (See NCJIC 250.4.2 [Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden]; see also NCJIC 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction].)

    See also NCJIC 250.4.7 [Improper To Shift Burden Of Proof To Defendant Where Defense Incorporates Element Of Charge].

    See also NCJIC 270.2.2 [Duty To Presume Defendant Innocent: Defendant's Attempt To Refute Prosecution Evidence Does Not Shift Burden].

    See also NCJIC 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].

    See also NCJIC 270.3.3 [Requiring Jury To "Find" A Reasonable Doubt To Acquit Improperly Shifts Burden To Defendant].

    See also NCJIC 271.1.1 [Presumptions: Instructing Jury That It "Would Be Justified" In Drawing The Inference Impermissibly Shifts The Burden].

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

    Evidence has been presented that the defendant ___________________ (set out the defense). The state must prove beyond a reasonable doubt, as an additional element of the offense charged, that the defendant was not _____________________ (set out the defense). The defendant does not have the burden of proof as to this defense. If the state has failed to prove beyond a reasonable doubt that the defendant did not _______________ (set out defense), the defendant is entitled to a verdict of not guilty. (set out the defense). The state must prove beyond a reasonable doubt, as an additional element of the offense charged, that the defendant was not _____________________ (set out the defense). The defendant does not have the burden of proof as to this defense. If the state has failed to prove beyond a reasonable doubt that the defendant did not _______________ (set out defense), the defendant is entitled to a verdict of not guilty.

[See generally State v. Thiel (ND 1987) 411 NW2d 66, 67; cf. NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal K3:01 [Defense- Burden Of Proof] (State Bar Association of North Dakota, 1999).]

    The defendant is not required to prove that ____________ (insert defense theory). If evidence that _________________ (insert defense theory) is present, the prosecution must prove beyond a reasonable doubt that __________________ (defense theory) is untrue. If, after consideration of all the evidence, you cannot find that the prosecution has proven beyond a reasonable doubt that _________________ (insert element which defense theory purportedly negates), you must find the defendant not guilty.

[See generally Bush v. U.S. (DC Cir. 1986) 516 A2d 186, 194-95; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.19 [Defense Of A Third Person] (Bar Association of the District of Columbia, 4th ed. 1993).]

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PRACTICE NOTE: When a defense theory instruction is refused, such a refusal may be viewed as a usurpation of the function of the jury by the court in the context of evaluating the sufficiency of the evidence of a defense. For example, in Wesson v. Tard (NJ 1984) 593 FSupp 1091, 1094, it was held that the appellate court, in affirming the defendant’s conviction on the ground that he had not adequately raised a mistake of fact defense, in effect established a conclusive presumption of an element of the offense. (See also Tully v. State (OK 1986) 730 P2d 1206, 1210 [duress]; Owens v. State (GA 1985) 326 SE2d 509, 512 [error to refuse accident instruction because judge found evidence unworthy of belief].)

    See also NCJIC 3.3.1.3 [Court May Not Evaluate Witness Credibility To Deny Instruction Request].)

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RATIONALE: Without an explanatory instruction the jury may improperly believe that the defendant has the burden of proving that an element of the charge was negated by the defense theory which has been raised.

POINTS AND AUTHORITIES: In instructing the jury upon defenses or defense theories which negate an essential element of the charge, the judge is obligated to inform the jury that it "must" acquit if the defense or defense theory raises a reasonable doubt as to the element to which the defense relates. Hence, it is error to instruct the jury that it "may" acquit if it finds that the defendant acted in good faith. (U.S. v. Cavin (5th Cir. 1994) 39 F3d 1299, 1310.) Acquittal is not optional in such circumstances; it is mandatory, because a finding of good faith precludes a finding of fraudulent intent. (Ibid.; see also Philippoussi v. State (FL 1997) 691 So2d 511, 512.)

    See also NCJIC 250.4.3 [Presumption Of Innocence: Improper To Label A Theory Which Negates An Element Of The Charge As A "Defense"].

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

    If you have a reasonable doubt as to whether or not defendant ________________ (e.g., acted in good faith) you must acquit.  

[See U.S. v. Cavin (5th Cir. 1994) 39 F3d 1299, 1310.]

    Evidence has been presented that the defendant__________________ (set out the defense). The state must prove beyond a reasonable doubt, as an additional element of the offense charged, that the defendant was not __________________ (set out the defense). The defendant does not have the burden of proof as to this defense. If the state has failed to prove beyond a reasonable doubt that the defendant did not _________________ (set out defense), the defendant is entitled to a verdict of not guilty.

[See generally State v. Thiel (ND 1987) 411 NW2d 66, 67; cf. NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal K3.01 [Defense-Burden Of Proof] (State Bar Association of North Dakota, 1999).]

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PRACTICE NOTE: Where an affirmative defense is nothing more than assertion of the absence of an element of the offense, shifting the burden to the defendant violates due process. (See Lowry v. State (TX 1985) 692 SW2d 86.) "Even where a general defense such as self defense is at issue, courts have invalidated a shift of the burden of persuasion to the defendant where the offense definition can be construed to incorporate an element that is negated by the defense." (Robinson, Criminal Law Defenses (West, 1984) § 5(b) fn. 36.)

    See also NCJIC 250.4.3 [Presumption Of Innocence: Improper To Label A Theory Which Negates An Element Of The Charge As A "Defense"].

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PRACTICE NOTE: A logical way of stating the prosecution's burden with respect to a defense theory that negates an element is: "If the jury has a reasonable doubt as to the existence of the element, that doubt must be resolved in favor of the defendant." (See e.g., People v. Mallon (NY 1906) 101 NYS 814, 822 ["the burden of proof rests upon the prosecution, and if, on the whole evidence, including that of the defense as well as that of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt and must be acquitted"].)

    See also NCJIC 265.4.2 [Reasonable Doubt As To Greater Charge Must Be Resolved In Favor Of Lesser].

    See also NCJIC 252.2.1 [Accident: Reasonable Doubt Favors Defendant].

    See also NCJIC 251.2.3.2 [Alibi: Prosecution’s Burden To Disprove].