the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully. This instruction should be given only if the defendant requests it and there is evidence to support it. Although the statute defines an affirmative defense, the Third Circuit has expressed concern about the constitutionality of an instruction that places the burden of proof for this defense on the defendant. Because of this uncertainty, the recommended instruction explains the defense but does not place the burden on the defendant. In 843 F.2d 741, (3d Cir. 1988), the Third Circuit expressed United States v. Clemons, its doubt about this defense, stating, labeling something an affirmative defense does not “[m]erely mean the statute is constitutional.” In the Third Circuit rejected the defendant’s challenge Clemons, to the trial court’s instruction on the defense, concluding it was harmless error. The court was satisfied both that the government’s evidence established the defendant’s guilt beyond a reasonable doubt and that the instructions to the jury required the jury to find beyond a reasonable doubt that the defendant’s conduct was not lawful. 843 F.2d at 754. In 968 F.2d 208 (2d Cir. 1992), the Second Circuit upheld an United States v. Johnson, instruction that placed the burden on the defendant to establish the truth-seeking defense and rejected the defendant’s argument that it was unconstitutional. A sample instruction based on may Johnson be found in Sand, et al., supra, 4632.1.
the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully. This instruction should be given only if the defendant requests it and there is evidence to support it. Although the statute defines an affirmative defense, the Third Circuit has expressed concern about the constitutionality of an instruction that places the burden of proof for this defense on the defendant. Because of this uncertainty, the recommended instruction explains the defense but does not place the burden on the defendant. In United States v. Clemons, 843 F.2d 741, (3d Cir. 1988), the Third Circuit expressed its doubt about this defense, stating, “[m]erely labeling something an affirmative defense does not mean the statute is constitutional.” In Clemons, the Third Circuit rejected the defendant’s challenge to the trial court’s instruction on the defense, concluding it was harmless error. The court was satisfied both that the government’s evidence established the defendant’s guilt beyond a reasonable doubt and that the instructions to the jury required the jury to find beyond a reasonable doubt that the defendant’s conduct was not lawful. 843 F.2d at 754. In United States v. Johnson, 968 F.2d 208 (2d Cir. 1992), the Second Circuit upheld an instruction that placed the burden on the defendant to establish the truth-seeking defense and rejected the defendant’s argument that it was unconstitutional. A sample instruction based on Johnson may be found in Sand, et al., supra, 4632.1.