Return to CALJIC Part 3-4 – Contents
F 4.51 n1 Aider And Abettor Alibi: CJ 3.01 Also Required.
When CJ 4.51 is given, the jury must also be instructed upon the principles of CJ 3.01. (People v. Sarkis (90) 222 CA3d 23, 26-28 [272 CR 34].)
[Research Note: See FORECITE BIBLIO 4.51.]
F 4.51 n2 Failure To Give Alibi Instruction Is Reversible Error.
The failure to give an alibi instruction when there is evidence to support an alibi defense deprives the defendant of instruction on theory of his case and is per se reversible error. (U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569; see also, U.S. v. Hairston (9th Cir. 1995) 64 F3d 491; United States v. Lillard (9th Cir. 2003) 354 F3d 850.) However, the applicability of this rule to habeas proceedings was questioned in Duckett v. Godinez (9th Cir. 1995) 67 F3d 734.)
[Research Note: See FORECITE BIBLIO 4.51.]
F 4.51 n3 Alibi: Prosecution’s Introduction Of False Alibi Evidence Necessitates Alibi Instruction.
The prosecution’s introduction of evidence concerning the defendant’s alibi triggers the need for an instruction on the defense of alibi even when the prosecution presented the evidence just to make light of it. (See U.S. v. Hairston (9th Cir. 1995) 64 F3d 491.)
F 4.51 n4 Failure To Request Alibi Instruction As Ineffective Assistance Of Counsel.
In Commonwealth v. Mikell (PA 1999) 729 A2d 566 [556 Pa. 509], trial counsel was held to be ineffective in failing to request an alibi instruction when the defense to a capital charge was alibi. The defendant was entitled to an instruction explaining that “an alibi defense, either standing alone or together with other evidence, may be sufficient to leave in the minds of the jury a reasonable doubt that might not otherwise exist.” (729 A2d at 570.) The court also pointed out that “one of the purposes of an alibi instruction is to ensure that a jury does not interpret the failure to prove the defense as evidence of a defendant’s guilt.” (Id. at 571.)
F 4.51 n5 Alibi: Improper For Prosecutor To Convince Alibi Witness Not To Testify By Informing The Witness That Perjury Charges Could Be Filed.
(U.S. v. Vavages (9th Cir. 1998) 151 F3d 1185.)
F 4.51 n6 Alibi: Aider And Abettor Or Conspirator: Prejudicial To Include Conspiracy When Not Presented By The Evidence.
See Brief Bank # B-692 for briefing on this issue.
