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When a co-defendant is charged with the same offense: State v. Downs

For starters, let’s say that John Doe is charged with possession of a firearm when he is pulled over by police late one night. At the time he was charged, he was in a car with a friend who is indisputably the one who possessed the gun and concealed it under the seat of the car prior to the traffic stop. All reports from the law enforcement officers indicate that the weapon was possessed by the friend of your client.  The officers searched the vehicle and found the gun under the friend’s seat. The State charged the friend with and is now trying to make an example of Doe. So what do you do?

In this situation, where a 3rd party has actually been charged with same crime, easily satisfies the cases holding that the defendant may introduce “other suspect” evidence within the constitutional right to present the theory of the defense.  While the State’s ability to argue that, both Doe and his friend could jointly commit the crime, this argument detracts from the defendant’s easily-correct contention that only one of the two may have committed the crime alone.

Washington permits a criminal defendant to present evidence that another person committed the crime when he can establish ” a train of facts or circumstances as tend clearly to point out some one besides the prisoner as the guilty party.”  State v. Downs, 168 Wn. 664, 667, 13 P.2d 1 (1932); State v. Rehak, 67 Wn.App. 157, 162,834 P.2d 651 (1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2449, 124 L.Ed.2d 665 (1993).  The United States Supreme Court recently has approved this standard for admitting ” third party guilt” evidence.  Holmes v. South Carolina, 547 U.S. 319, 327, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).  When the State’s case is entirely circumstantial, the Downs rule is relaxed to an extent to allow a reply in kind: the ” defendant may neutralize or overcome such evidence by presenting sufficient evidence of the same character tending to identify some other person as the perpetrator of the crime.”  State v. Clark, 78 Wn.App. 471, 479, 898 P.2d 854 [(1995)] (citing Leonard v. Territory of Wash., 2 Wash.Terr. 381, 396, 7 Pac. 872 (1885)), review denied, 128 Wn.2d 1004, 907 P.2d 296 (1995).  As the proponent of the evidence, the defendant bears the burden of establishing relevance and materiality.  State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986).

If evidence of this possible defense theory is relevant under Downs and thus admissible, you should have the right to carefully cross-examine the cop(s) on the possibility or probability of the crime being committed only by the friend alone.

If you have questions regarding a weapons violation or might be facing criminal charges, you may want to discuss your circumstances with a Criminal law attorney.  At Blair & Kim, PLLC our attorney’s are experienced and dedicated to helping clients achieve positive resolutions in their cases.

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