The Theory of Defense Instruction to the Jury

The entitlement to a "theory of defense" instruction helps balance the advantage the prosecution gains by being able to set the pacing and agenda of a trial. The prosecution decides which witnesses to call and when to call them as the case is made. In other words, the prosecutor determines the plot of the story being told to the jurors. That can disadvantage the defense as it battles the prosecution's interpretation of evidence and testimony while at the same time trying to advance its own understanding of what happened.

In Todd's case the defense was hampered by the loss of a central piece of evidence--the condition of the knife that the prosecution alleged to be the murder weapon. That disadvantage was compounded when the trial judge refused the theory of defense instruction proposed by the defense attorneys. One of the key elements of the rejected instruction was the defense theory of how the knife came to have a minute amount of blood on it. The judge's reason for refusing the instruction (that the evidence supporting the theory was not "ample") is not consistent with the legal standard. (The details are available in the appeal briefs). In truth, the trial record offers considerable supporting evidence for the instruction offered by the defense.