Inconsistent Defenses in Criminal Cases

• Author: by Major James F h'egle
• Pages: 02

Occasionally a criminal defendant will respond to charges with two or more theories which may seem to contradict each other He orshemaysay, in effect, "Ididnotshootthe victim. butifldidso, it was in selidefense " Civilian court8 have taken many different positions OD the extent to which this type of pleading is permissi. ble, and military courts have permitted it in Some eases but not others

Major .Vagle has extensively reviewed the case law on the sub.iect He examines the decisions of state and military courts, but concentrates on the United States courts of appeals, wheremost of the authoritative positions on inconsistent defenses have been developed. Major JYagIe notes that in mme cases the defenses used are not truly inconsistent, in the sense that factual proof of onedoes not necessarily imply disproof of the other. Insanity and self.defense provide one example. In other cases, such 88 a claim of en.

*The npinion~ and c ~ n c l u ~ i o n i expressed ~n this article are rhore of the surhor and

do not neeeisarily represent the jiivs of The Judge Advocate Gene~al

J

J D , 1973. Rurgm tin~reri~ty.

Deparcmenr of the Arm). 01 any other goiernmenral agency

This ~ m c l e grew out of the author 3 Bark on a case which he briefed and argued

before the ti 5 Army Cauri of M h a r y R w m , Falls Church, Virginia The author gratelull) aeknauledgea the essiifan~e of Captain Robert L Gallaway, JAGC. who offered helpid suggeinons for the impmvemsnC of the ailiele Captsin Gallaway. airigned since 1978 to Defsnx Appellate DliiPion U S .Army Legal Services Agen. CY Falli Church Yirslnis 18 the aurhar of Due Procera. ObiecIive Enlraornenr's Tralaa Horse88 Mil Rer 103119801'*Judge Advocate General'p Corps, Unired States Army Appellate deienie at-torney assigned to

Dlvlaion U S Army Legal Serwces Agency Falln Church, Yngms s m e

August 1919 Formerly arngnad to ths U S Army

Commumcananr and Elecrronics Material Readmini Command Fort hlonmouth, New Jersey 1916 1979. *here he performed B variety of miliiary patics duties B S F S . 1970 Georgeraun Un~$~rnty.

School. the

LL M can

didare 1979 to p~esent, George U'aahmgfan Univerrny Completed 70th Judge Ad- VOcste Ofliesr Basic Courae December 1973. and the Judge Advocate Oflieer Adianced Correspondence Course Uavember 1979. Members 01 the Bars of ihe Supremo Court 01 New Jersey the Unlfed Scarel Court of Mldirary Appeala. the United States Supreme Court. and the United States Court 01 Claims Milaior Nsgls has publiihed ~rri~leion offme management and legal aamtanco ~n the Augurt and October 1979 I ~ J Y B C of ?heArmyLsuyer

MILITARY L A W REVIEW [VOL 92

trapment coupled with deoial of guilt, there may be poiicy reasons for permitting such defenses even if they are inconsistent on the facts.

Major .Vagle concludes that use of inconsistent defenses isgenerally permitted in American lurisprudeoee. He feeis, however, that so many variations in treatment of iDconsisteDt defenses exist between jurisdictions as to result in significant unfairness to some defendants The United States Supreme Court has not acted to resolve some of the glaring inconsistencies of treatment among the various federal circuits, nor has the Court ofMiiitary Appeals done ail that it could to clarify the state of military law on the subject. MajorNagle argues that itis time forcorreetivejudicialaetion.

1. INTRODUCTION

   One wants to say to the defense. "Shorn of technicality, what do you realiy want? Which way would you have it. Either position IS legitimate, but choose. It ill behooves you to try to have it bath ways."'

   These words. written by a Maryland appellate iudge, demonstrate the natural frustrations that courts often experience when confronted with the logical absurdity known as inconsistent defenses. Such defenses arise when the accused, in effect. arguer, far example. "I didn't shoot him, but if I did, it was in self. defense."'

   Such a tactic is dearly not a preferred strategem. Inconsistent defenses have been described 88: likely to mislead the 1ury.l

   'Bartrsm v Ststo, 37 Md h p p 115 354 A 2d 1119 ,19161, d f d 280 'Ild 616 314A 2d 114119771'SeeCexlabauenatss51 90 infra.

   ''Incanrlalenr defenses' m this ~iliclemean8 rhos8 defenses which uhen asserted

   bv B ~ i n d e defendant are moniistont with m e another such a8 demal and self.

   mcansiatenl defenses'Newmannv Stale. 168Fla 96 156So 237119341

   fraught with great risk." multifarious and eonlusing,i "hunting always with B shotgun. never with a rifle."l a device sure to destroy the delendant I credibility.' and a tactic no competent attorney would utilize a Despite such criticisms. inconsistent delenses have specifically been permitted to some extent in seven federal circuits.' 26 states.'O and the military," and seem to be a generally accepted principle in American Iurisprudence."

   The reasons given far such acceptance have varied: most prominent are:

   1. It rs improper to force a defendant to admit certain essential facts (usually the eommissmn ai the "criminal" act) m order to avail himself of a defense such as sell.defense or entrapment

   'People, Johnsan,liApp UivZd693.386U Y SZdi98119761'Paopler Jersky 377111 261 36U I Zd261119111-Kalnv State 18R~82d212 l i Q h W2d27'119i01'Ramn~y The Entrapment Defense- U'hehaiHalh the Wodel Penal Code Wrought, 16 DvquerneLaa Rev 1~7.1611191ilTnired Stares \ Kaiser, 138F 2d219lTih Cir 19131

   ma. 523 F 2d 981 119751 D C Circuir Johnson, United Stater. 138 I2 S App U C 651 119:Ol. cerl denied.401 U S 816119701

   Weetheappendix attheendof rhii article

   "CniledSrafesi Garcia,l hl J 261C bl 4 19751 Seedircvriion~ntexraboi,pnorss 204-207. rnira"See22CJS CrrmioslLswS64~19611.21Am

   Jur2d CrimrneiLaw5141119651

   "People Y Perez 62 Cal2d 769. 11 Csl Rpri 326. 401 P 2d 931 119651 It has been Bcgued that such 'farced admiriians' vialate the rarionale of the Supremo Court 8 rulings I" Simmons Y Onrred Stales 390 U S 377 119681 In that case the Courr r d ed rhafsdpfpndanicovldnar be requiredto admnarnerihip of aniremiandthereby gire up hia ilfrh amendment righCs1 ~n order LO C O D ~ P ~ I an faurrh amendment groundstheialidiryof rhe apar~huhichuncaveredtheitem

   2 The defendant should be accorded every reasonable protection in defending himself against prosecution 14

   3. Inconsistent defenses often aid ID the search for the truth by presenting different facts and theories to the fact finder and thereby enabling the fact finder to attach credibility to whatever facts and theory it belieies."

   A fourth )ustifieation might well be that it 13. under certain c r cumstmces. an indispensable tool for the defense counsel Con-sider the following example: The client tells his eoun~elthat he did

   not kill the victim and. in fact. was 100 miles away at the time. The prosecution, however. has four eyewitnesses who positively identify the diem as the assailant They testify further that the %xtim was advancing with a knife an the client. If the counsel must rely solely on the client's uersion, then he 1s relying an an alibi defense that will be obliterated by the prosecution evidence. Conversely. he is presented with a dassie example of self-defense which. if he is allowed to present It could save the client's life. If inconsistent defenses are permitted, he may argue both denial and self-defense to the fact finder

   While many jurisdictions have accepted the theory of mconsis-tent defenses. that acceptance has vaned greatly. The United States Supreme Court has not rendered B decision on the rubiect of incomment defenses." Consequently it is unclear whether a defen.

   !Without Scienceii Did Est. Denial of Cr~meand the Enrrepmeni Defense 19iJ L

   of 111 Laa Forum 2% 273 119-31 and Comment The irirriron of lncoaiisleni Defensesin Entrapment Csser 56 l n ~ a

   Lax He,, 686 890 119il8'United Starer v Dernma 623 F 2d BE1 986 i9fh Clr 19761'iHendernan b Unired Stater 237 F Ld 169 (5th Cir 19561 Smte 5 Burns. 516 P 2d 718 ,or 4pp 19;3,

   19811 INCONSISTENT DEFENSES

   dant has a constitutional right to present evidence which raises inconsistent defenses.'8 Furthermore. decisions diverge greatly on. first. what inconsistent defenses will be accepted Self.defense and denial are generally but entrapment and denial are not.2o Second. decisions vary on haw the defenses may be raised. Can the defendant himself testify to both. or must the state's own evidence raise one of the defenses?"

   11. DEFINITION

   This divergence of views is readily apparent when one seeks to find B common definition for "inconsistent defenses." Rarely will a court attempt to give any specific meaning to the phrase. Usually the courts will merely say the defenses are inconsistent and then permit them k,r not This lack of specificity has caused B division of the tactic into three separate meanings-alternative defenses, truly inconsistent defenses, and antithetical defenses

   Apparently the courts feel that the word "inconsistent" is clear enough to require no further clarification In civil cases it is said that "the test of inconsistency of defenses is whether proof of onenecessarily disproves the other ''I2 This rule seems to have been

   adopted in cnminal cases 50 that "mutually exelusive defenses" is often used as a substitute for ''inconsistent defenses."23

   Confusion has resulted. however. because there IS B subjective dividing line between what is permissibly and impermissbly in. consistent. Some have stated that inconsistent defenses are allowed as long as they are not too inconsistent or as long as proof of one does not necessarily disprove the other.'@ This seems

   ' See Sears , United States 431 F 2d 139 15Ch Cii 19611. Stale Y Randolph. 496 5.12d2571M1o 197311en bsncl

   "Shuffelbergerv Hopkms ll7Kan 113.Y80PPd933119111"See e.# Stale" Burn8 516P2d74810r hpp 18131"Striplmg Y State 349 Sa 2d 187 lFla App 19771, Unmd Stares Y Greenfield. 354 F 2d 179 16th Clr 39771-Greenfield, suprenote 21

   to be a contradiction in terms and illustrates the excent of the con. fusmn on the Subject. Other courts have utilized...