Back in 2007 I attended a criminal defense seminar in Key West, Florida called “Sailing Your Way to Victory.”
One of the sessions I attended during that seminar was titled “The Theory of the Defense.” That session was taught by none other than a Mr. J. Cheney Mason, Esq.
The session was an instruction on developing what are known as “theory of defense” jury instructions. The esteemed Mr. Mason went on to advise in his seminar materials (which I still have) that the “theory of the defense” should be “determined at the earliest possible time” and will frequently be “the difference between conviction and acquittal.”
Theory, Schmeary… so what does Mr. Mason’s seminar discussion on “Theory of Defense” have to do with the Casey Anthony case?
Well, many of you may recall that last Friday, in response to the State’s Motion in Limine to preclude the defense from calling state witnesses liars without an evidentiary basis, Mr. Mason told Judge Perry (and I quote) “I am going to ask you to give a jury instruction that part of the theory of defense is that a certain witness is a liar and I believe you will give that based on the case of United States v. Alfonso-Perez, 535 F. 2d 1362 (U.S. 2d Cir. 1976).” (See YouTube Video of Friday Hearing | 11 minutes 26 seconds).
Where Have I Heard that Before?
The minute Mr. Mason mentioned United State v. Alfonso-Perez, I knew exactly where he was going, because it just so happens that United State v. Alfonso-Perez was one of the primary cases he cited in the 2007 seminar materials AND I had already researched the case myself, why you ask?
Well after the seminar, I obviously thought it would be a swell if I could get a judge to instruct the jury on my specific defense theory. That way, not only could I argue the theory to them, I could also get the judge to instruct them on it.
The obvious implication is that a judge adds judicial credibility to your theory by reading it to a jury and a jury would then be more apt to give your argument credence – rather than dismissing it as implausible.
There was only one problem with Mr. Mason’s position, by the time he presented at the seminar, the cases he cited were over thirty years old. And unfortunately for me, they no longer applied.
Rather, while Mr. Mason’s general premise was correct, his specific premise was superseded by intervening law; as a lot has changed since 1976.
Specifically, beginning in 1981, the Florida Supreme Court began adopting and publishing Standard Jury Instructions that were to be used in all all criminal cases.
As a result, the law now holds that a person is only entitled to a special jury instruction (such as what Mr. Mason asks) IF there is no Standard Jury Instruction in Florida that covers the particular issue. See Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001) (“The standard jury instructions are presumed correct and are preferred over special instructions.”)
And under current case law, a special jury instruction (like the one Mr. Mason wants) should only be given if:
- The special instruction was supported by the evidence;
- The standard instruction did not adequately cover the theory of defense; and
- The special instruction was a correct statement of the law and not misleading or confusing.
Unfortunately for Mr. Mason’s expected request to Judge Perry, Florida Standard Criminal Jury Instruction 3.9 specifically and adequately covers issues of witness credibility, witness incentive, or witness inducement that a jury should consider when deciding what evidence is reliable.
But what about United States v. Alfonso-Perez?
Interestingly, the language of the special jury instruction that was the requested – and ultimately ordered to be given – in United States v. Alfonso-Perez was as follows:
You are instructed that the defendant’s position is that he was not involved in the narcotics conspiracy. It is his position that the government witnesses must have falsely testified against him for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.
Now is it just me, or would it seem easy to replace “the narcotics conspiracy” with “the death of Caylee Marie Anthony” and have an almost identical instruction that parallels claims made by the Casey Anthony defense?
You are instructed that the defendant’s position is that she was not involved in the death of Caylee Martie Anthony. It is her position that the government witnesses must have falsely testified against her for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.
If so, I think Mr. J. Cheney Mason, Esq. may have given away what “Theory of Defense” he will pursue at trial.
And One Last Thing…
There was one last thing Mr. Mason made a point to emphasize in his seminar materials, which was:
Do not reveal the theory of defense in advance [as] cops will change their testimony and prosecutors will conform or revise their case.
All I can say is, way to take your own advice Mr. Mason, way to take your own advice.