BLOG BULLETS:

 

• Instructions on affirmative defenses aren’t given automatically; you do need some evidence to get one.
• The way the cases have phrased it is that you need “more than a scintilla” of evidence for a theory of defense instruction, but that threshold is “slight indeed.”
• The court can’t weigh the evidence but must view it in the light most favorable to the defendant, the court must recognize the jury would be free to disbelieve conflicting testimony, and the evidence “may be weak, insufficient, inconsistent, or of doubtful credibility.”

 

NOW THE BLOG:

In my post last week on the Cortes case holding that sentencing entrapment is a defense that Apprendi requires be decided by a jury, I mentioned in passing that “as with any defense” “there must be evidence from which the jury could find” the defense or, put alternatively, “some foundation in the evidence” for the defense. This triggered a thought that it might be worth sharing some principles and standards I collected for a brief I did a year or so ago on the test for when a defendant is entitled to a jury instruction on a defense.

The case law is clear that you can’t get an instruction on the defense when it’s not a real issue in the case; for example, you don’t get an instruction on self-defense in an assault case when the whole case is about whether your guy did it and you don’t get an instruction on entrapment in a drug case when the whole case is about whether your guy knew that what he was carrying was drugs. The harder cases are where your defense really is self-defense or entrapment, but the judge thinks the evidence is weak and doesn’t want to give the jury that possible out. The cases hold that you’re not entitled to a defense instruction just because you want to argue the defense to the jury; rather, there has to be some minimum evidence from which a jury could somehow find the defense. The way the cases have phrased it is that there must be “more than a scintilla.” E.g., United States v. Morton, 999 F.2d 435, 439 (9th Cir. 1993).

Still, there’s a wealth of other language suggesting this is a very low standard. Cases recognizing the need for “more than a scintilla” of evidence have characterized that threshold as “slight indeed.” United States v. Sarno, 73 F.3d 1470, 1488 (9th Cir. 1995). There must simply be “evidence sufficient for a reasonable jury to find in [the defendant’s] favor,” Bradley v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)), or as articulated in two Supreme Court cases, “evidence [that] would permit a jury rationally to find” the defense, Hopper v. Evans, 456 U.S. 605, 611 (1982) (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)). And then there are other principles that have been articulated, including the following:

1. That the government must be able to show that “the jury’s only option on the evidence” would have been to reject the defense. United States v. Hernandez, 476 F.3d 791, 800 (9th Cir. 2007) (also citing Keeble).

2. That the court may not weigh the evidence as a trier of fact would, United States v. Rivera-Alonzo, 584 F.3d 829, 834 (9th Cir. 2009) (quoting Hernandez, 476 F.3d at 800 and citingKeeble), but must “view the evidence in the light most favorable to [the defendant],” Bradley, 315 F.3d at 1096.

3. That the court should recognize that a jury would be free to disbelieve any testimony that conflicts with the defense theory.See Vickers v. Ricketts, 798 F.2d 369, 371 (9th Cir. 1986) (citingKeeble and noting that “the jury was free . . . to disbelieve” prosecution witness’s problematic testimony).

4. That the evidence advanced in support of the defense instruction may be inconsistent with other evidence. United States v. Arnt, 474 F.3d 1159, 1164 (9th Cir. 2007) (citingKeeble).

5. And, more generally, that the evidence offered in support of the defense “may be weak, insufficient, inconsistent, or of doubtful credibility.” United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984) (quoting United States v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979)).

So you should get that defense instruction in most cases, and here’s some ammo to help if the judge is resisting.