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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Alternative Perpetrator Defense

A defense asserted occasionally in criminal cases, especially first-degree murder, is the “alternative perpetrator” doctrine.  Under this tenet, a defendant claims that someone else committed the offense.  The travails of raising this defense were reflected in a recent ruling of the Minnesota Supreme Court in State v. Ferguson, 804 N.W.2d 586 (Minn. 2011).  Charged with first-degree murder at a home in south Minneapolis, the defendant sought to identify one other person as the assailant.  The lower court prohibited him from doing so on grounds that he did not lay a sufficient foundation.  But the supreme court reversed, noting that there was sufficient evidence proffered to suggest that another specific person may have committed the murder and that the exclusion of the defense was not harmless beyond a reasonable doubt.

Advocates of the “alternative perpetrator” defense must show that there is an “inherent tendency” to connect the alleged perpetrator to the commission of the crime based upon specific evidence linking a particular individual to the offense.  If the defense is excluded at trial, they also must show on appeal that there is a “reasonable possibility” that the jury may have acquitted had it heard the evidence concerning the other alleged offender.  See State v. Jones, 679 N.W.2d 1 (Minn. 2004).  Prosecutors seeking to preclude such evidence should try to attack the foundation of the proffered evidence to show that it does not create a legitimate nexus between the claimed offender and the crime.

Marshall H. Tanick

Mansfield Tanick & Cohen, PA

mtanick@mansfieldtanick.com

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