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251.9 Third Party Guilt

    251.9.1 Third Party Culpability As Defense Theory
    251.9.2 Third Party Guilt: Relationship To Presumption Of Innocence -- Prosecution's Duty To Disprove
    251.9.3 Third Party Guilt: Right To Related Instructions (Flight, Motive, Etc.)
    251.9.4 Unjoined Perpetrators: Consideration Of Third Party Guilt
    251.9.5 Third Party Guilt: Reverse 404(b)
    251.9.6 Third Party Culpability: Gang Evidence As Rebuttal To Third Party Defense
    251.9.7 Third Party Guilt: Defendant Does Not Have To Prove That Another Person Committed The Crime
    251.9.8 Third Party Guilt: No Special Evidentiary Requirements Should Be Imposed
    251.9.9 Third Party Guilt: Ineffective Assistance Of Counsel
    251.9.10 Third Party Guilt Defense: Threats From Alleged Third Party Culprit
    251.9.11 Third Party Guilt: Motive And Opportunity As Test For Admissibility

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RATIONALE: When the defense focuses upon a theory of third party guilt, the jury may improperly tend to treat the case as a question of whether or not the third party has been proven guilty. Hence, instruction may be appropriate to assure that the jury does not shift the burden of proof to the defendant.

POINTS AND AUTHORITIES: It is well established that the defendant may rely upon the theory that a third party committed the charged offense. (See U.S. v. Calle (11th Cir. 1987) 822 F2d 1016, 1021 [third-party guilt is substantive defense which cannot be limited by trial court pursuant to rules governing impeachment]; see also People v. Edelbacher (CA 1989) 47 C3d 983, 1017 [254 CR 586]; People v. Hall (CA 1986) 41 C3d 826, 833 [226 CR 112].)

    Evidence that another person committed the charged crime is "generally recognized as relevant evidence under fundamental standards." (Larimore v. State (AR 1994) 877 SW2d 570, 575; see also United States v. Stevens (3rd Cir.1991) 935 F2d 1380, 1401-03; United States v. Armstrong (9th Cir.1980) 621 F2d 951, 953; Smith v. State (AR 1990) 801 SW2d 655, 658.)

    Thus, 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." (Hall, at p. 833; 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, 926 [". . . no burden on the defendant to produce any evidence and the defendant does not have to prove who killed her husband."].)

    It has been suggested that the trial court has no duty to instruct on third party liability even when requested. (See e.g., People v. Wright (CA 1988) 45 C3d 1126, 1134 [248 CR 600]; People v. London (CA 1988) 206 CA3d 896, 908 [254 CR 59].) However, these cases did not address the federal constitutional right to obtain instruction on the defendant's theory of the case.

    Because the defendant has a right to an instruction on his or her theory of the case (see FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory]), there should be a right to instruction on third party guilt when appropriate. (See e.g., Hill v. State (TX 1979) 585 SW2d 713 [reversible error to refuse request for defense theory instruction informing jury to acquit if it had a reasonable doubt that defendant was the killer in light of the third party guilt evidence]; see also McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 12:410 [Cause Of Death-Third Person Causes Criminal Act] (James Publishing, 2000) [the defendant is entitled to a separate "defense of charge" on mistaken identity including third party guilt].)

    In light of these principles, a defendant who relies on the defense theory of third party culpability should be permitted to obtain instruction upon this theory notwithstanding the fact that it may be generally encompassed within the general instruction on the prosecution's burden to prove guilt beyond a reasonable doubt. (See FORECITE National™ 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction] and FORECITE National™ 251.2.2 [Alibi: Right To Instruction].)

    Additionally, the failure to provide separate third-party guilt instruction would implicate the defendant's federal constitutional rights to compulsory process, trial by jury and due process (6th and 14th Amendments), because if the jury is not correctly instructed on third party culpability there is a danger that the jury will conclude that the third party's actual culpability must be proved by the defendant.

    Therefore, because the standard jury instructions may lead a reasonable juror to believe the defendant has the burden of proof on the third party issue -- presumably measured by the "beyond a reasonable doubt" standard -- further instruction is necessary.

    See also FORECITE National™ 251.2.3 [Alibi: Burden Of Proof].

    See also FORECITE National™ 251.9.5 [Third Party Guilt: Reverse 404(b)].

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

    You have heard evidence that [a person other than the defendant] [__________________ name of third party] committed the offense with which the defendant is charged. The defendant is not required to prove [the other person's] [_________________'s] guilt. It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant's guilt. Evidence that [another person] [__________________] committed the charged offense may by itself leave you with such a reasonable doubt.  

    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.

[Source: FORECITE National™.]

    The defendant in this case contends that another person committed the charged crime and that [he] [she] had nothing to do with it. However, the law places no burden on the defendant to prove that someone else committed the crime. Thus, the defendant has no burden to prove another person's guilt. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant was present at the scene and that [he] [she] committed the crime. 

[See generally State v. Mayfield (SC 1959) 109 SE2d 716, 724; cf. Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 14-1 [Alibi] (South Carolina Bar, 1995).]

    The defendant contends that another person committed the charged offense. However, the defendant does not have any burden to prove that the other person committed the charged offense. Rather the prosecution must prove beyond a reasonable doubt that the defendant was the person who committed the crime. The defendant's contention that [he] [she] did not participate in the crime and that another person committed it is simply a denial of facts essential to the prosecution's case.

    Therefore, upon considering all the evidence in the case, including the evidence with respect to another person committing the charged offense, if you have a reasonable doubt as to the defendant's participation in the crime charged, you must vote to find [him] [her] not guilty.

[Cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim Append 301.10 [Alibi] p. 930 (TRCC, 1999).]

    The defendant has introduced evidence for the purpose of showing that another person committed the alleged offense for which [he] [she] is here on trial. If, after considering all the evidence, you have a reasonable doubt that the defendant committed the charged offense, you must vote to find [him] [her] not guilty.

[Cf. MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 1-022 [Alibi] (State Bar of Montana, 1990); see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.50 [Alibi] p. 214 (West, 6th Ed. 1996).]

    The defendant has introduced evidence to show that another person committed the offense charged in the indictment. The prosecution has the burden of establishing beyond a reasonable doubt that it was the defendant who committed the charged offense.

    If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was the person who committed the charged offense, you must find the defendant not guilt.

[Cf. 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.1 [Alibi] p. 94 (2000).]

SAMPLE INSTRUCTION # 6:

[Cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-57 [Defense of Alibi--Requirements] p. 490A (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    The prosecution has the burden of proving beyond a reasonable doubt not only that the offense was committed but also that the defendant is the person who committed it. Unless all of the circumstances, including any evidence that a person other than the defendant committed the offense, prove beyond a reasonable doubt that the defendant committed the offense, you must vote to return a verdict of not guilty.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-7-1 [Mistaken Identity] (State Bar of South Dakota, 1997 rev.).]

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    See generally FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].

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    251.9.3    Third Party Guilt: Right To Related Instructions (Flight, Motive, Etc.)

RATIONALE: When the defendant relies on a third party guilt defense, the defendant is, in effect, prosecuting the third party (albeit under a different standard of proof. Hence, instructions which are normally available to the prosecution vis-à-vis the defendant should also be available to the defendant vis-à-vis the third party.

POINTS AND AUTHORITIES: Due process requires a balance between the defense and prosecution. (See FORECITE National™ 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].) Hence, instructions available to the prosecution should also be available to the defendant who contends that a third party committed the crime.

    For example, if the evidence of third-party culpability includes consciousness of guilt on the part of the third party, then the standard consciousness of guilt instructions should be modified accordingly. (See e.g., People v. Ofunniyin (NY 1985) 495 NYS2d 485 [flight of codefendant is relevant to defense that codefendant is guilty and nonfleeing defendant is not guilty]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:45 [General Instructions-Flight–Commentary] (West, 1999).)

    The same may be said regarding the applicability of other standard instructions which might relate to the jury's determination of third-party guilt such as motive. (See e.g., FORECITE National™ 250.7.3 [Motive: Application To Third Party Suspect].)

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

SAMPLE INSTRUCTION # 1:

    If the prosecution has proved beyond a reasonable doubt that the alleged crime was committed by someone, then you may take into consideration any testimony showing, or tending to show, __________ (insert consciousness of guilt conduct, e.g., flight, false exculpatory statements, etc.) by _____________ (insert name of third party). You may consider this testimony as a circumstance tending to show a consciousness of guilt on the part of _______________ (name of third party). The weight and significance of such evidence are matters for you to decide.

[Cf. MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 1-019 [Flight By Defendant] (State Bar of Montana, 1990).]

    The defendant contends that ______________ (insert name of third party) ____________ (insert consciousness of guilt conduct, e.g., fled, lied to the police, etc.).  Consider any evidence of __________ (e.g., flight), together with all other facts and circumstances in this case, in deciding whether the combined circumstances show a consciousness of guilt on the part of _______________ (name of third party). 

[Cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]

    If  ______________ (insert name of third party) attempted to ____________ (insert consciousness of guilt evidence, e.g., persuade a witness to testify falsely, fabricate evidence to be produced at trial, etc.), such attempt is a circumstance to consider as tending to show a consciousness of guilt.

[See generally State v. Styers (AZ 1993) 865 P2d 765, 773.]

    If before this trial __________ (name of suspected third party) willfully made a false or misleading statement concerning the crime[s] for which defendant is now being tried, consider whether such statement is a circumstance tending to prove a consciousness of guilt on the part of __________ (name of third party). Such conduct may be sufficient by itself to raise a reasonable doubt as to the guilt of the defendant. However, its weight and significance, if any, are matters for your determination.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.03 [Consciousness Of Guilt -- Falsehood] (West, 6th Ed. 1996).]

    If  __________ (name of suspected third party) [attempted to] [or] [did] persuade a witness to testify falsely or [attempted to [or] [did] fabricate evidence to be produced at the trial, consider whether such conduct shows a consciousness of guilt on the part of _______________ (name of third party).  Such conduct may be sufficient by itself to leave you with a reasonable doubt that the defendant is guilty. However, its weight and significance, if any, are matters for your determination.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.04 [Efforts By Defendant To Fabricate Evidence] (West, 6th Ed. 1996).]

    If __________ (name of third party) attempted to suppress evidence against [himself] [herself] in any manner, such as [by the intimidation of a witness] [by an offer to compensate a witness] [by destroying evidence] [by concealing evidence] [by __________], consider whether such attempt shows a consciousness of guilt on the part of __________ (name of third party). Such conduct may be sufficient by itself to leave you with a reasonable doubt that the defendant is guilty. However, its weight and significance, if any, are matters for your consideration.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.06 [Efforts To Suppress Evidence] (West, 6th Ed. 1996).]

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RATIONALE: Some standard pattern instructions include an unjoined perpetrators instruction which tells the jury not to be concerned why other potential perpetrators are not on trial. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.11.5 [Unjoined Perpetrators of Same Crime] p. 52 (West, 6th Ed. 1996).) However, when the defense contends that a third party committed the crime, the unjoined perpetrators instruction may mislead the jury into concluding that evidence of another's guilt may not be considered.

POINTS AND AUTHORITIES: The jury should be instructed to consider the evidence of the uncharged perpetrator's guilt in determining whether or not the defendant is guilty. (See People v. Edelbacher (CA 1989) 47 C3d 983, 1017 [254 CR 586]; see also FORECITE National™ 251.9.1 [Third Party Culpability As Defense Theory].) Otherwise, the unjoined perpetrator's instruction may mislead the jury into believing that it may not consider the evidence of the uncharged perpetrator's guilt in evaluating the third-party guilt defense.

    This does not preclude you from considering any evidence that the uncharged person[s], rather than the defendant, committed the crime charged. If, in light of such evidence, as well as all the other evidence, you have a reasonable doubt whether the defendant committed the crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

    However, in fulfilling this duty you are not precluded from considering evidence that a person not on trial is the guilty party. To the contrary if such evidence raises a reasonable doubt as to the defendant's guilt you must give [him] [her] the benefit of that doubt and return a verdict of not guilty.

[Source: FORECITE National™.]

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    251.9.5    Third Party Guild: Reverse 404(b)

PRACTICE NOTE:  See FORECITE National™ 251.11 [Reverse 404(b) As Defense Theory Of Noncomplicity].

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CAVEAT: When the defendant relies on a third party defense, which includes evidence of a confession by a third party who claims to not know the defendant, the prosecution may, in rebuttal, present evidence that the two were members of the same criminal street gang, thus suggesting that the confession was fabricated. (People v. Ruiz (CA 1998) 62 CA4th 234 [72 CR2d 572].)

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    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].

PRACTICE NOTE:  Some cases require the defense to show a "clear link" or "direct connection" between a third party and the crime in question. (See e.g., People v. Young (NY 2000) 277 AD2d 910, 910 [evidence of third-party culpability "must do more than raise a mere suspicion that another person committed the crime; there must be a clear link between the third party and the crime in question"]; Smitart v Alaska (AK 1999) 988 P2d 583, 586 ["direct connection"]; North Carolina v. Potts (NC 1993) 433 SE2d 736, 741 ["points directly"]).

   251.9.10   Third Party Guilt Defense: Threats From Alleged Third Party Culprit

PRACTICE NOTE: See People v. Boyette (CA 2002) 29 C4th 381, 428-29 [127 CR2d 544] [trial court improperly limited appellant’s questioning of a family member regarding specific threats made against her by the person appellant accused of committing the murders].

 VOLUME 11 - CHAPTER 251   

    In  Beaty v. Commonwealth (KY 2003) 125 SW3d 196 the Kentucky Supreme Court observed that "appellate courts have almost invariably reversed when proffered evidence of both motive and opportunity has been excluded by the trial court." (Beaty, 125 SW3d at 208.) Hence, exclusion of third party guilt evidence under such circumstances violates the Due Process Clause of the Fourteenth Amendment. (Ibid.)