Revised to November 6, 2014
The defenses codified in the Penal Code are not intended to preclude recognition of any defenses or aspects of the statutory defenses available at common law not inconsistent with the statutory provisions. General Statutes § 53a-4. See State v. Havican, 213 Conn. 593, 599 (1990) (construing "great bodily harm" in 53a-19 (a) as consistent with common-law rule of deadly force); State v. Shaw, 185 Conn. 372, 379 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982) (incorporating co-dweller exception into duty to retreat); State v. Messler, 19 Conn. App. 432, 436-37 (1989) (recognizing common-law defense of necessity).
The following defenses are general defenses: ignorance or mistake, intoxication, renunciation of criminal purpose, duress, entrapment, justification, renunciation of criminal purpose in a conspiracy charge. See State v. Rouleau, 204 Conn. 240, 249 n.12 (1987) (correcting dicta in State v. Rosado, 178 Conn. 704, 708 (1979)).
Burden of proof
General Statutes § 53a-12 (a) places the burden on the state to disprove a general defense beyond a reasonable doubt.
When instruction is required
A defendant is entitled, as a matter of law, to a requested jury instruction on a defense if there is sufficient evidence of the defense. State v. Lewis, 220 Conn. 602, 618-19 (1991); State v. Havican, 213 Conn. 593, 597 (1990); State v. Fuller, 199 Conn. 273, 278 (1986). "A defendant must, however, assert a recognized legal defense before such a charge will become obligatory. A claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge." State v. Rosado, 178 Conn. 704, 707 (1979). In State v. Baltas, 311 Conn. 786, 814-18 (2014), the Supreme Court refused to require courts to instruct the jury on any theory of defense with a foundation in the evidence. "We are satisfied that our law under Rosado, when combined with the requirement that trial courts must adequately instruct juries on each essential element of each crime for which the defendant is being prosecuted, adequately protects the defendant's right to present a defense." Id., 818.
The standard for determining whether the evidence is sufficient to entitle the defendant to an instruction differs between general and affirmative defenses. A defendant is entitled to have the jury instructed on any general defense "for which there is any foundation in the evidence, no matter how weak or incredible." (Internal quotation marks omitted.) State v. Havican, 213 Conn. 593, 597 (1990). The defendant's constitutional right to present a defense "includes a proper jury instruction on the elements of the defense . . . so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt." State v. Fuller, 199 Conn. 273, 278 (1986).
A defendant is entitled to a requested instruction on an affirmative defense "only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence." State v. Person, 236 Conn. 342, 353 (1996); State v. Small, 242 Conn. 93, 102-103 (1997) (same is true regardless of whether defendant or state requested instruction).
"Generally, inconsistent defenses may be interposed in a criminal case. . . . That a defense is interposed which is inconsistent with the defendant's alibi theory does not preclude an instruction as to that defense. . . . The fact that one defense is on the theory that the accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses . . . . To compel a defendant to admit guilt in order to invoke a defense effectively relieves the prosecution of proving his guilt beyond a reasonable doubt and frustrates the assertion of the defense itself and undermines its policy." (Citations omitted; internal quotation marks omitted). State v. Harris, 189 Conn. 268, 273 (1983); see also State v. Folson, 10 Conn. App. 643, 649 (1987). A defendant is entitled to an instruction on the defense of self-defense if the evidence warrants it, even if the evidence would also support a claim of innocence because of an unintentional or accidental shooting. State v. Miller, 55 Conn. App. 298, 301 (1999), cert. denied, 252 Conn. 923 (2000). "[A] jury may be instructed on a requested defense theory, even if the defendant has testified to facts that contradict the requested charge, if there is sufficient evidence to warrant the instruction." State v. Person, 236 Conn. 342, 348 (1996).