Document Type



Published in: American Criminal Law Review, vol. 44, no. 3 (Summer 2007).


On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence of third-party guilt if it is relevant under Federal Rule of Evidence 401, or its state equivalent, and not excluded by other rules of evidence, such as 403. While some scholars have lauded the 401/403 approach as the better test, in practice the two tests operate in much the same way and the evidentiary bottom line is that the defendant's evidence is frequently deemed inadmissible. Courts have offered two justifications for the strict restrictions on third-party guilt evidence: (1) to prevent juror confusion; and, (2) to guard against fabricated statements by third parties. We explain why these fears are unfounded, and then turn to the focus of this article: the importance of narrative relevance. Existing evidentiary restrictions fail to consider the role third party guilt evidence plays in shaping the narrative, or story, that the defendant will present to the jury in his defense. Empirical studies have shown that - more than legal standards, definitions or instructions - narrative plays a key role in the juror decision-making process. Without a thorough understanding and consideration of the narrative relevance of third party guilt evidence, restrictions on its use cannot be and are not being appropriately applied because they fail to account for the way in which jurors actually think and process information at trial. After discussing the importance of narrative relevance, we propose a new test which is more consistent with a defendant's constitutional rights to a fair trial and to present a complete defense. First, the threshold test for admissibility should be probable cause. If the evidence proffered by the defendant would permit the state to proceed with a criminal prosecution against the third party, then the defendant must be permitted to tell the story of third party guilt. A story for the goose is a story for the gander. Once, the threshold test is satisfied, we propose that, with one significant exception, a defendant should be permitted to admit third-party guilt evidence if that same evidence would be admissible against the third party were he the defendant. The exception is propensity evidence. There is no need to balance the probative value of the third-party guilt evidence against the danger of unfair prejudice because the third-party suffers no prejudice by the admission of the evidence at a trial in which he is not the accused. Thus, admission of propensity (or other character) evidence concerning a third party should not be precluded.

Date of Authorship for this Version

Summer 2007


Third party guilt, Criminal defenses, Federal Rule of Evidence 401, Admissibility