THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 18 - CHAPTER 309
Go to Volume 18 Table of Contents  -  Go to Chapter 309 Table of Contents

Macro 309.4      Defenses

    Macro 4.1   Defense Theory Which Negates Element: Right To Instruction
    Macro 4.2   Affirmative Defense
    Macro 4.3   Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge Element Of Charge
    Macro 4.4   Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense
    Macro 4.5  Right To Present Evidence
    Macro 4.6   Eyewitness Issues And Instructions

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 18 - CHAPTER 309

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which place the burden on the prosecution to prove every essential fact and element of the charge beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35] ; U.S. v. Gaudin (1995) 515 US 506, 509-12 [115 SCt 2309; 132 LEd2d 444]; Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

    This instruction is also required by the federal constitutional rights to due process compulsory process and confrontation (5th, 6th and 14th Amendments) which mandate that the defendant be allowed to present evidence and valid defense theories in response to a criminal prosecution. (See Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; see also 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].)

    Additionally, criminal defendants are constitutionally assured "a meaningful opportunity to present a complete defense." (California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413].) The guarantee arises from either the Confrontation Clause or the Due Process Clause. (See U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588.) The guarantee applies to criminal defendants in state court. (See Trombetta, 467 US at 485.) It may be violated when a defendant is prevented from presenting evidence important to his or her defense. (See e.g., id. at 488-89 [failure to preserve breath samples that might have provided grounds for impeachment]; see also Gilmore v. Taylor (1993) 508 US 333 [113 SCt 2112; 124 LEd2d 306] and cases cited therein; Lopez-Alvarez, 970 F2d at 588 [limitation on cross-examination of prosecution witness about hearsay statements that could have cast doubt on his credibility].)

    The constitution specifically allows a defendant to present relevant evidence in support of his cause. (Rock v. Arkansas, supra, 483 US 44, 55-56.) In any system of ordered liberty, a defendant must have the right to have the jury consider any competent evidence offered to disprove criminal intent. Our traditional notions of fair play require no less. (McMillan v. Pennsylvania (1986) 477 US 79, 85 [106 SCt 2411; 91 LEd2d 67].)

    These rights require that the jury be allowed to consider any defense theory which the defendant offers to negate an element of the charge. (See Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Martin v. Ohio, supra, 480 US 228 at 233-34 [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; Strauss v. U.S. (5th Cir. 1967) 376 F2d 416, 419; U.S. v. Douglas (7th Cir. 1987) 818 F2d 1317, 1322; U.S. ex rel. Means v. Solem (8th Cir. 1980) 646 F2d 322, 327-28; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-40.) 

    These rights are also implicated by the failure to fully and correctly instruct the jury on any affirmative defense to the charged offense. (See NCJIC Constitutional Macro 4.2 [Affirmative Defense].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.4.2    Affirmative Defense

    This instruction is required by the federal constitutional right to due process, fair trial by jury, and compulsory process (5th, 6th and 14th Amendments) which require that the jury be fully and correctly instructed on all applicable affirmative defenses. (See Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02.)

    See also NCJIC Constitutional Macro 4.1 [Defense Theory Which Negates Element: Right To Instruction].

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which 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 improperly believes that the defendant has the burden of proving a defense theory which negates an element of the charge. (See Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Sandstrom v. Montana (1979) 442 US 510, 521-24 [99 SCt 2450; 61 LEd2d 39].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.4.4    Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense

    This instruction is required by the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) which require the jury to consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Rock v. Arkansas (1987) 483 US 44, 61 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Martin v. Ohio (1987) 480 US 228, 233 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self defense evidence in determining whether there was a reasonable doubt about the State's case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.4.5    Right To Present Evidence

    See NCJIC Constitutional Macro 4.1 [Defense Theory Which Negates Element: Right To Instruction] and NCJIC Constitutional Macro 5.3 [Impairing Jury’s Assessment Of Witness Credibility As Violation Of Right To Trial By Jury].

    309.4.6    Eyewitness Issues And Instructions

    This instruction is required by the federal constitutional right to due process, compulsory process, confrontation and a fair trial by jury. (5th, 6th and 14th Amendments.) See NCJIC Constitutional Macro 4.1 [Defense Theory Which Negates Element: Right To Instruction] and NCJIC Constitutional Macro 5.3 [Impairing Jury’s Assessment Of Witness Credibility As Violation Of Right To Trial By Jury].