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 VOLUME 16 - CHAPTER 300
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300.6 Inadequate Instruction On Defense Or Defense Theory

    300.6.1 Constitutional Claims: Failure To Instruct Upon Defenses
    300.6.2 Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation

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 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: "[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54] [citing Stevenson v. United States (1896) 162 US 313, 332 [16 SCt 839; 40 LEd 980] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 208 [93 SCt 1993; 36 LEd2d 844].)

    Failure to instruct on the defendant's theory of the case where there is evidence to support the instruction violates the defendant's right to present a defense, to compulsory process and to trial by jury as guaranteed by the 6th Amendment and to due process under the 14th Amendment. (See e.g., U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748 ["[a]n accused is entitled to an instruction on his theory of defense so long as the theory is a valid one and there is evidence in the record to support it." [Citation]]; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-79; U.S. v. Roberts (7th Cir. 1994) 22 F3d 744; U.S. v. Boykins (7th Cir. 1993) 9 F3d 1278, 1285; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 570-71 [error in failing to give alibi instruction in bank robbery prosecution amounted to failure to instruct jury on defendant's theory of case, and was reversible per se]; U.S. v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; U.S. v. Washington (9th Cir. 1987) 819 F2d 221, 225 [the district court must give an instruction regarding any legitimate theory of defense that is supported by the evidence, and a failure to do so is reversible error]; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02 ["...[T]he principle [is] established in American law ... that a defendant is entitled to a properly phrased theory of defense instruction if there is some evidence to support that theory...[Citations]."]; Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240 [failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case]; U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 ["jury must be instructed as to the defense theory of the case"]; James v. Reese (9th Cir. 1976) 546 F2d 325, 327; U.S. v. Jenkins (10th Cir.1983) 701 F2d 850, 858 [where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error]; Eugene v. State (AL 1995) 661 So2d 797, 799; State v. Strayhand (AZ 1996) 911 P2d 577, 593 [when a defense theory is reasonably supported by the evidence, failure to instruct as to that theory is reversible error]; People v. Nunez (CO 1992) 841 P2d 261, 267 [failure to give alibi instruction reversible error]; People v. Caulley (MI 1993) 494 NW2d 853, 860 [failure to instruct on defense theory of involuntary intoxication]; State v. Matejka (NE 1971) 183 NW2d 917, 919; Ruland v. State (NV 1986) 728 P2d 818, 819 [failure to instruct on a defense theory totally removes it from the jury's consideration and constitutes reversible error]; State v. Brown (NM 1996) 931 P2d 69, 77; McKenzie v. State (TX 1975) 521 SW2d 637, 639 [court is required, when a proper request is made, to charge on every defensive issue raised by the evidence]; Virgilio v. State (WY 1992) 834 P2d 1125, 1130; see also FORECITE National™ 296.2.2.3 [Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory]; see also FORECITE National™ 250.4.5 [Defense Theories: Failure To Instruct As Creating A Conclusive Presumption].)

    Moreover, "a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor...." (People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; see also Washington v. Texas (1967) 388 US 14, 19 [87 SCt 1920; 18 LEd2d 1019]; Davis v. Alaska (1974) 415 US 308 [94 SCt 1105; 39 LEd2d 347]; see also FORECITE National™ 300.4.1 [Failure To Instruct Or Directed Verdict On Element Of Charge]; see also FORECITE National™ 300.4.2 [Withdrawal Of Factual Issue May Constitute A Directed Verdict].) The failure to instruct on the defense theory encompassed by the defendant's evidence undermines the very constitutional rights which allow the evidence to be presented to the jury. (See e.g., U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case which dilutes the jury's consideration of the issues and directs a verdict against the defendant].)

    In sum, "[w]hen properly requested, a defendant is entitled to a charge on every defensive theory raised by the evidence, regardless of the strength of the evidence or whether it is controverted." (Hudson v. State (TX 1997) 956 SW2d 103, 104.) "It 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 FORECITE National™ 250.1.1 [Litigant’s Right To Instruction On Theory Of Case].

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 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: The right of a criminal defendant to present a defense and witnesses on his or her behalf is a fundamental element of due process guaranteed under the 5th and 14th Amendment to the United States Constitution. (See Webb v. Texas (1972) 409 US 95, 98 [93 SCt 351; 34 LEd2d 330]; Washington v. Texas (1967) 388 US 14, 19 [87 SCt 1920; 18 LEd2d 1019]; see also Gray v. Klauser (9th Cir. 2002) 282 F3d 633, 641 [trial court's "asymmetrical" application of rules regarding hearsay evidence, offered by both the prosecution and the defense, was contrary to two well-established constitutional principles: (1) the government may not arbitrarily deprive a defendant of the right to present a defense and/or present witnesses on his behalf; and (2) the trial court cannot impose more rigorous requirements on testimony presented by defendant than on that presented by the prosecution without justification]; Newman v. Hopkins (8th Cir. 2001) 247 F3d 848 [refusal to permit defendant to present voice exemplar evidence to establish that he does not speak with an Hispanic accent violated right to present a defense; domestic rule excluding voice exemplar evidence was an unreasonable application of clearly established federal law providing that a defendant has the constitutional right to present favorable evidence to the jury]; People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; People v. Schroeder (CA 1991) 227 CA3d 784, 787 [278 CR 237] [noting the "right of a criminal defendant to present a defense and witnesses on his or her behalf is a fundamental element of due process guaranteed under the 14th Amendment to the United States Constitution"].)

    The defendant's right to present a defense also derives from the 6th and 14th Amendment. (See People v. Cudjo (CA 1993) 6 C4th 585, 637-43 [25 CR2d 390], Kennard, J. dissenting, for a discussion of the defendant's constitutional right to present a defense under the compulsory process and due process clauses of the federal constitution]; DePetris v. Kuykendall (9th Cir. 2000) 239 F3d 1057, 1061-63; Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 [federal constitutional error to exclude husband's prior violent behavior toward former wife and others to show wife's subjective belief in the need to defend herself]; Richmond v. Embry (10th Cir. 1997) 122 F3d 866, 871 ["...the right to present defense witness testimony...is a right arising not under the 6th Amendment's confrontation clause but is instead one arising under the 5th and 14th Amendment right to due process and the 6th Amendment right to compulsory process"]; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394 [right to present defense witness testimony resides in the compulsory due process clause and the due process clause of the federal constitution]; Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 2-2(d) [6th Amendment right to confrontation] and § 2-2(e) [6th Amendment right to compulsory process]; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999)§ 45-2 [defendant’s right to call witnesses].)

    The failure to instruct on the defense theory encompassed by the defendant's evidence undermines the constitutional rights to compulsory process, due process and trial by jury which allow the evidence to be presented to the jury. (See e.g., Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54] [citing Stevenson v. United States (1896) 162 US 313, 332 [16 SCt 839; 40 LEd 980] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; Keeble v. U.S. (1973) 412 US 205, 208 [93 SCt 1993; 36 LEd2d 844]; Conde v. Henry (9th Cir. 1999) 198 F3d 734 [right to present evidence is meaningless if jury is not required to consider it]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case which dilutes the jury's consideration of the issues and directs a verdict against the defendant].)

    See also FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].

See Capital Punishment Handbook [4.1.4 a. Right To Confront And Cross-Examine Witnesses: General Principles And Authorities].