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4.000 n1 Non-CALJIC Defenses: Common Law Defenses Apply In California.
In the absence of statutory provisions to the contrary, the common law of England is the controlling law relating to criminal matters in California. (See In re Application of Hudspeth (29) 100 CA 478, 479 [280 P 179]; see alsoPeople v. Terrill (01) 133 C 120, 125 [65 P 303].) Accordingly, any defenses at common law which have not been statutorily prohibited should be available to a criminal defendant in California. (See also CHK IV(B) [Rules of Statutory Construction: Statutes Are Presumed To Codify Common Law Rules Absent Clear Language To The Contrary].)
F 4.000 n2 Outline Of Defenses To Assault Crimes.
[An article outlining various defenses to assault crimes including self-defense, unconsciousness, accident, voluntary and involuntary manslaughter is available to FORECITE subscribers. Ask for Article Bank A-43.]
Affirmative Defense Where Defendant Has Burden:
Prosecution Must Prove Underlying Elements;
Evidence Relating To Defense Must Be Considered
Even If Defense Is Not Proven
a. Even if the defendant does not prove ______[insert affirmative defense], the prosecution must still prove every element of the charge beyond a reasonable doubt.
b. In deciding whether the prosecution has met its burden to prove every element beyond a reasonable doubt, you must consider all the evidence, including that which relates to the defense of __________, even if you conclude that the defendant did not prove the defense.
The defendant’s burden as to this defense does not in any way relieve the prosecution of its burden to prove every element of the charge beyond a reasonable doubt.
Points and Authorities
Martin v. Ohio (87) 480 US 228 [94 LEd2d 267; 107 SCt 1098] held that the burden of proving a defense by a preponderance of the evidence may be placed on the defendant. However, in so holding, the Court stressed the need for the jury to understand (1) that the burden to prove the elements of the charge remains with the prosecution and (2) evidence relating to the affirmative defense must be considered by the jury if it does not satisfy the preponderance standard:
“It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.”
(Martin v. Ohio, 480 US at 233-4.)
Justice Powell recognized this reasoning to be the “crux of the Court’s holding” (see Smart v. Leeke (4th Cir. 1989) 873 F2d 1558, 1564) when he articulated in his dissent: “The Court thus seem[ed] to conclude that as long as the jury is told that the State has the burden of proving all elements of the crime, the overlap between the offense and the defense is immaterial.” (Martin, 480 US at 239.)
In response to Martin’s recognition of potential juror confusion in this area, it has been suggested that clarifying instructions should be given to assure jury understanding of these important principles. (See e.g., Montana Criminal Jury Instructions (1990 Ed.) MCJI 3-115(a) [jury instructed that “even if you determine the use of force was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt”]; Criminal Jury Instructions for the District of Columbia (4th Ed., 1996) 4.60, ¶ 1, sentence 3 [jury told to consider evidence of consent [an affirmative defense] in deciding whether prosecution proved the force or threat element].
The First Circuit commentary to its standard insanity instruction (First Circuit Pattern Jury Instructions: Criminal (1998) 5.07 fn 3) further illustrates the problem:
“A more troublesome issue arises when the defendant raises both the insanity defense and a mens rea defense based on abnormal mental condition. If evidence tends to show that a defendant failed to understand the nature and quality of his/her conduct, that evidence will not only tend to help prove an insanity defense but it will also typically tend to raise reasonable doubt about the requisite culpable state of mind. (See Pattern Instruction 5.02.) In Martin v. Ohio (87) 480 US 228, 234, the Supreme Court held that the trial judge must adequately convey to the jury that evidence supporting an affirmative defense may also be considered, where relevant, to raise reasonable doubt as to the requisite state of mind. This overlap problem may be solved by adequate instructions.” (Id.)
The need for clarifying instructions is particularly acute in circumstances where the affirmative defense would also serve to negate an element of the charge. (E.g., diminished capacity is affirmative defense which defendant must prove but prosecution must prove mens rea beyond a reasonable doubt.) As one court observed:
“In this kind of situation, the constitutional problem is not eliminated by including an instruction in the charge that the state has the ultimate burden of proving every element of the offense beyond a reasonable doubt. When such a standard instruction is coupled with one placing a burden on the defendant to prove his defense by a preponderance of the evidence, the predictable result is more than merely confusion. In order to attribute some significance to the defendants’ burden, a rational juror’s only option is to conclude that the defendants’ evidence concerning the subject matter of the “affirmative defense” is to be considered only if the jury finds it persuasive, i.e., finds that the facts sought to be proved are more likely true than not true. It is clear from Martin that this is constitutionally impermissible.”
(Emphasis added.) (Humanik v. Beyer (3rd Cir. 1989) 871 F2d 432, 441.)
Moreover, the problem also exists when the defense does not directly negate the element. For example, in the case of momentary possession, as discussed in FORECITE F 12.06a, evidence related to momentary possession may actually negate the element of possession as a required element of the charge. Hence, any implication that the momentary possession evidence may only be considered if proven by a preponderance of the evidence would violate the due process and trial by jury clauses of the federal constitution.
A similar analysis could be applied to entrapment where the defendant’s lack of predisposition to commit the offense in the first place could be relied upon to negate the mens rea and/or intent elements of the charge even if entrapment is not proven by a preponderance of the evidence.
Accordingly, counsel may wish to consider whether clarifying language such as set forth above may be appropriate.
STRATEGY NOTE: Depending on the case, the instructions in Alternative 1 above may be undesirable as a matter of strategy because they may be viewed as suggesting to the jury a weakness in the defendant’s affirmative defense evidence. Alternatively, the jury could simply be instructed in the language of Alternative 2 above.
NOTE: As to the language that the jury “must” consider the evidence, see FORECITE F 4.21.2b.