This post [0003 Centeno] discusses the problem of juror confusion regarding whether rejection or disbelief of defense evidence can supply prove that is missing from the prosecution’s evidence. This risk is particularly high with defenses such as alibi and third party guilt. The greatest danger of diluting the burden of proof in such cases is acute because the jurors are likely to simply assume the defendant is guilty if they do not believe the defense theory that someone else committed the alleged offense. For example, as observed by the 6th Circuit:
“The [alibi] defense can easily backfire, resulting in a conviction because the jury didn’t believe the alibi rather than because the government has satisfied the jury of the defendant’s guilt beyond a reasonable doubt, and it is the trial judge’s responsibility to avoid this possibility.” (U.S. v. Robinson (6th Cir. 1979) 602 F2d 760, 762; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 6.02, commentary [Alibi] p. 129 (1991).)
Thus, the trial court errs in failing to tell the jury that a contrary finding regarding the alibi testimony does not automatically authorize a guilty verdict. (See People v. Leasure (NY 1970) 312 NYS2d 563, 564 [error to instruct jury that it could draw an inference of guilt from disbelief of the alibi witness]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:09 [Defenses: Alibi–Commentary] pp. 242-43 (West, 1999).)
Similarly special instructions may be appropriate with third party guilt defenses. The sample alibi instructions below may be adapted to a third party guilt situation.
Sample Instructions Regarding Rejection or Disbelief of Alibi* Evidence:
CAVEAT: re: use of the term “alibi” see FORECITE F 3400.1 Inst 3 Delete The Term “Alibi” From Title Of Instruction [link***]
Alibi Alternative a:
Disbelief of the alibi testimony is not evidence of guilt. There has to be other testimony sufficient to persuade you beyond a reasonable doubt of the defendant’s guilt.
[See U.S. v. Fortes (1st Cir. 1980) 619 F2d 108, 123.]
Alibi Alternative b:
Even if the jury should choose to disbelieve alibi evidence, the government retains the burden of proof and must meet the reasonable doubt standard concerning the defendant’s presence at the time and place charged.
[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS – CRIMINAL 6.03 [Alibi] p. 95 (1999).]
SAMPLE ALIBI INSTRUCTION # 3:
If you disbelieve the defendant’s alibi evidence, such disbelief does not create an inference that the defendant was present when the [alleged] offense was committed.
[See OHIO JURY INSTRUCTIONS, VOLUME 4 – CRIMINAL, 4 OJI 411.03 [Alibi] p. 70 (Anderson, 2000).]