F 4.020 n3 Third Party Guilt Defense: Threats From Alleged Third Party Culprit.
(See People v. Boyette (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].)
Third-Party Culpability As Defense Theory
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 raise a reasonable doubt as to the defendant’s guilt. However, its weight and significance, if any, are matters for your determination. 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.
The defendant in this case has introduced evidence for the purpose of showing that another person committed the crime for which [he] [she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant committed the charged crime, you must find [him] [her] not guilty. [Adapted from CJ 4.50.]
Points and Authorities
“The fundamental standards of relevancy…require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.” (U.S. v. Crosby (9th Cir. 1996) 75 F3d 1343, 1347; see also U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008, 1023.)
“Even if the defense theory is purely speculative…the evidence would be relevant. In the past, our decisions have been guided by the words of Professor Wigmore: [I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.’ [Citations.]” (U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008, 1023.)
Hence, it is well established that the defendant may rely upon the theory that a third party committed the charged offense. (People v. Edelbacher (89) 47 C3d 983, 1017 [254 CR 586]; People v. Hall (86) 41 C3d 826, 833 [226 CR 112].) In so doing, 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,supra, at p. 833; see also People v. Madison (35) 3 C2d 668, 677 [46 P2d 159] [prosecution must present evidence that no other person committed the crime charged]; but see People v. Adams (2004) 115 CA4th 243 [third party culpability evidence excluded; evidence lacked sufficient direct or circumstantial evidentiary value or connection to link the third party to the crime]; People v. Babbitt (88) 45 C3d 660, 684, 681-682 [“exclusion of evidence that produces only speculative inferences is not an abuse of discretion”].) It is well settled that the defense has a right to pinpoint instructions upon the theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600]; see also, People v. Marshall (96) 13 C4th 799, 831-32 [55 CR2d 347] [recognizing the need for further instruction as to burden of proof];People v. Simon (95) 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. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; EC 502; FORECITE PG III(A)&(D).) Further, the prosecution’s burden logically permits the jury to rely entirely upon a single defense theory to find a reasonable doubt as to guilt. (See CJ 2.40.)
It has been suggested that the trial court has no duty to instruct on third party liability even when requested. (See People v. London (88) 206 CA3d 896, 908 [254 CR 59]; People v. Wright (88) 45 C3d 1126, 1134 [248 CR 600];People v. Martinez (87) 191 CA3d 1372, 1378 [237 CR 219]; People v. Kegler (87) 197 CA3d 72, 80-81 [242 CR 897].) However, none of these cases address the defendant’s federal constitutional right to obtain instruction on the defendant’s theory of the case.
The due process, compulsory process and trial by jury clauses of the 5th, 6th and 14th amendments to the federal constitution mandate that “as 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 (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citing Stevenson v. United States (1896) 162 US 313 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. U.S. (73) 412 US 205, 213 [36 LEd2d 844; 93 SCt 1993]; U.S. v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-79; 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].” (Virgilio v. State (Wyoming) (92) 834 P2d 1125, 1130; U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 [“jury must be instructed as to the defense theory of the case”]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748.) This is so because “a defendant’s right to submit a defense for which he has an evidentiary foundation is fundamental to a fair trial….” (Whipple v. Duckworth (7th Cir. 1992) 957 F2d 418, 423 overruled on other grounds in Eaglin v. Welborn (7th Cir. 1995) 57 F3d 496; U.S. v. Douglas (7th Cir. 1987) 818 F2d 1317, 1320-21 [“the failure to include an instruction on the defendant’s theory of the case … would deny the defendant a fair trial. [Citation.]” (U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-858.)
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, as are most defense theories, within the general instruction on the prosecution’s burden to prove guilt beyond a reasonable doubt. (See People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600]; see also, People v. Marshall (96) 13 C4th 799, 831-32 [55 CR2d 347] [recognizing the need for further instruction as to burden of proof]; People v. Simon (95) 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. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; EC 502; FORECITE PG PG III(A)&(D).) For example, in People v. Earp (99) 20 C4th 826, 886 [85 CR2d 857] the California Supreme Court assumed that refusal of the following instruction was error: “Evidence has been offered that a third party is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your minds of the defendant’s guilt.”
Therefore, when evidence of third-party culpability has been presented, the defense has a right to an instruction upon third-party culpability such as the one set forth above. The failure to provide such an 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.
Necessity For Related Instructions
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., FORECITE F 2.03d, FORECITE F 2.04c and FORECITE F 2.06d.) [See Brief Bank # B-590 for additional briefing on third party culpability.]
The same may be said regarding the applicability of other standard instructions which might relate to the jury’s determination of third-party guilt. (See e.g., FORECITE F 2.51b.)
Sua Sponte Duty To Instruct On Third Party Culpability
[See FORECITE F 4.020 n1.]
Third Party Culpability: Gang Evidence As Rebuttal To Third Party Defense.
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 (98) 62 CA4th 234 [72 CR2d 572].)
Application Of Reasonable Doubt Rule To Choice
Between Guilt Of Defendant And Third Party
You are required to resolve in favor of the defendant any reasonable doubt which you have in the choice between the defendant and __________________ (third party) as the person who committed this crime. Thus if you have a reasonable doubt as to which person committed the offense you must give the defendant the benefit of that doubt and find him not guilty.
Points and Authorities
People v. Dewberry (59) 51 C2d 548, 555 [334 P2d 852]; see also F 4.020 et seq.
Reasonable Interpretations Regarding
Guilt Of Defendant And Third Party Must Be Resolved In Favor Of Defendant
If the evidence permits two reasonable interpretations, one of which points to the guilt of the defendant and the other to the guilt of ____________________ (name of third party), you must reject the interpretation that points to the defendant’s guilt and return a verdict of not guilty.
Points and Authorities
CJ 2.01. See also FORECITE F 2.01 n5.