Utah Code Ann. § 76-5-201 defining criminal homicide, does not now (although it once did) include the term "unlawfully," nor do any of the specific homicide sections. Utah law does not require the prosecution to negate lawful justification or excuse, unless the defense is an issue as a result of evidence presented at trial by either side. Utah Code Ann. § 76-1-502. See also State v. Knoll, 712 P.2d 211 (Utah 1985).
Jury instructions in homicide cases have sometimes included the element of "unlawfully" causing the death of the victim. "Unlawfully" means without legal justification or excuse. In some cases, the "legal justification or excuse" may constitute a complete defense, such as, for example, self-defense or insanity. In other cases, it may only constitute a partial defense, such as where extreme emotional distress, imperfect self-defense, or special mitigation are at issue. (Note that there are separate elements instructions for cases involving partial defenses.)
Consequently, the phrase "the defendant caused the death without legal justification or excuse" is bracketed in the elements instructions, indicating that it is only to be used if legal justification or excuse is at issue. A note at the end of each homicide elements instruction also recommends that practitioners tailor this element to the specific issue in the case. For example, where self-defense is at issue, the bracketed element would read, "That the defendant did not act in self-defense."
Finally, special verdicts should be used in aggravated murder cases when there are multiple aggravating circumstances alleged, in order to clearly indicate the basis for the jury's verdict. Special verdicts are also required in murder cases in which special mitigation is at issue, pursuant to Utah Code Ann. § 76-5-205.5.
The defendant, (DEFENDANT'S NAME), is charged with Aggravated Murder. You cannot convict (him)(her) of this offense unless you find beyond a reasonable doubt, based on the evidence, each of the following elements:
After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY of Aggravated Murder. On the other hand, if you are not convinced that all of these elements have been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY of Aggravated Murder.
Committee Notes
If the date and/or location of a crime is an element of the offense, those can be included within the list of elements. In some circumstances, identifying the specific counts might assist the jury in sorting through offenses with overlapping elements. In those circumstances, the specific count to which the instruction applies should be identified in the first paragraph.
*See explanatory note at the beginning of the homicide section. The committee recommends that practitioners consider replacing this phrase with more specific language relating to the legal justification or excuse at issue in the case. For example, if the issue is self-defense, this element could be tailored to: "That the defendant did not act in self-defense."
Whenever imperfect self-defense is submitted to the jury:
"If you find Defendant GUILTY beyond a reasonable doubt of murder, you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self-defense is addressed in Instructions _______."
The defendant, [DEFENDANT'S NAME], is charged with Aggravated Murder. You cannot convict (him) (her) of this offense unless you find beyond a reasonable doubt, based on the evidence, each of the following elements:
After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY of Aggravated Murder. On the other hand, if you are not convinced that one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY of Aggravated Murder.
If the date or location of a crime is an element of the offense, those can be included within the list of elements. In some circumstances, identifying the specific counts might assist the jury in sorting through offenses with overlapping elements. In those circumstances, the specific count to which the instruction applies should be identified in the first paragraph.
This instruction applies only to crimes committed prior to May 12, 2009. For crimes committed on May 12, 2009 and thereafter, see special mitigation instructions relating to extreme emotional distress.
A person is guilty of murder if, acting under circumstances that demonstrate a depraved indifference to human life, (he)(she) knowingly engages in conduct that creates a grave risk of death and, in fact, causes the death of another.
"Depraved indifference to human life" means an utter callousness toward the value of human life and a complete indifference as to whether the actor's conduct will create a grave risk of death to another.
To act with "depraved indifference," the actor must do more than act recklessly. However, (he)(she) does not have to have a conscious desire to cause death, nor does (he)(she) need to be aware that the conduct is reasonably certain to cause death.
In the context of "depraved indifference murder," "knowingly" means that the person knew:
A "grave risk of death" means more than a substantial and unjustifiable risk; there must be a high likelihood that death will result.
In order to find depraved indifference, you must evaluate all the circumstances surrounding the death from the standpoint of a reasonable person in the actor's position.
In evaluating the evidence, you should consider the following factors: (1) the social value of the defendant's conduct; (2) the magnitude of the risk; (3) the defendant's knowledge of the risk; and (4) any precautions taken by the defendant to minimize the risk.
References
"Heinous," "atrocious," "cruel," or "exceptionally depraved" refers to the physical torture, serious physical abuse, or serious bodily injury inflicted upon the deceased before death. The actor's intent in committing these acts must be to cause wholly unnecessary suffering to the deceased, rather than simply to kill (him)(her).
The phrase "in the commission of" ["in the attempted commission of," or "in the flight from the commission or attempted commission of"] (CRIME) means that there was no break in the chain of events connecting the homicide and the (CRIME).
The phrase "in the commission of" ["in the attempted commission of," or "in the flight from the commission or attempted commission of"] (CRIME) means that there was no break in the chain of events connecting the homicide with the (CRIME).
The phrase "incident to one act, scheme, course of conduct, or criminal episode" means that the acts constituting the homicide and the acts constituting [CRIME] are linked by time, place, manner, purpose, or a combination of the four.
(DEFENDANT'S NAME) is charged [in Count __] with committing Murder [on or about DATE]. You cannot convict (him)(her) of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
Last Revised - 04/03/2019
Committee Amended
You have heard me say repeatedly that the prosecution bears the burden of proof at all times in a criminal case. There is one exception to this rule, which I will discuss with you now.
Under Utah law, special mitigation exists when a defendant causes the death or attempts to cause the death of another person while the defendant is under extreme emotional distress.
"Extreme emotional distress" means that the defendant had an overwhelming reaction of anger, shock, or grief that:
(1) caused the defendant to be incapable of reflection and restraint; and(2) would cause an objectively reasonable person to be incapable of reflection and restraint.
(1) caused the defendant to be incapable of reflection and restraint; and
(2) would cause an objectively reasonable person to be incapable of reflection and restraint.
The first factor is a subjective factor, and the second factor is an objective factor.
The defendant is required to prove extreme emotional distress by a preponderance of the evidence.
In considering the first subjective factor, the defendant must be acting under the influence of extreme emotional distress at the time he causes or attempts to cause the death of another.
A defendant may prove that he was subjectively under the influence of extreme emotional distress by showing:
(1) he was exposed to extremely unusual and overwhelming stress,(2) he had an extreme emotional reaction to it, as a result of which he experienced a loss of self-control and his reason was overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions,(3) his emotional distress was not a condition resulting from mental illness, and(4) his emotional distress was not substantially caused by his own conduct.
(1) he was exposed to extremely unusual and overwhelming stress,
(2) he had an extreme emotional reaction to it, as a result of which he experienced a loss of self-control and his reason was overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions,
(3) his emotional distress was not a condition resulting from mental illness, and
(4) his emotional distress was not substantially caused by his own conduct.
In considering the second objective factor, the circumstances must support a reasonable explanation or excuse for the extreme emotional distress. This factor asks whether a reasonable person facing the same situation would have reacted in a similar way. Reasonableness shall be determined from the viewpoint of a reasonable person under the then-existing circumstances.
Utah Code sect. 76-5-205.5
"Extreme Emotional Distress" mitigation is potentially applicable to aggravated murder and attempted aggravated murder (Utah Code § 76-5-205.5).
Extreme emotional distress exists if the circumstances support that the defendant acted predominantly in response to a highly provoking act by the other person, which provoking act immediately preceded the defendant's actions.
Extreme emotional distress does not include distress that is substantially caused by the defendant's own conduct.
In addition, special mitigation for extreme emotional distress does not exist if:
(1) a period of time has passed long enough for a reasonable person to have recovered from the extreme emotional distress;(2) the defendant responded to the circumstances by inflicting serious or substantial bodily injury over a prolonged period of time or inflicted torture; or(3) the other person's highly provoking act was comprised of words alone.
(1) a period of time has passed long enough for a reasonable person to have recovered from the extreme emotional distress;
(2) the defendant responded to the circumstances by inflicting serious or substantial bodily injury over a prolonged period of time or inflicted torture; or
(3) the other person's highly provoking act was comprised of words alone.
A defendant is required to establish the special mitigation of extreme emotional distress by a preponderance of the evidence. I have already instructed you on the reasonable doubt standard that applies to the prosecution; and now I will instruct you on the preponderance of the evidence standard that applies to the defendant.
Under the preponderance of the evidence standard, the defendant must persuade you, by the evidence, that a particular fact is more likely to be true than not true.
Another way of saying this is proof by the greater weight of the evidence, however slight. Weighing the evidence does not mean counting the number of witnesses nor the amount of testimony. Rather, it means evaluating the persuasive character of the evidence. In weighing the evidence, you should consider all of the evidence that applies to a particular fact, no matter which party presented it. The weight to be given to each piece of evidence is for you to decide.
After weighing all of the evidence, if you decide that the facts for extreme emotional distress are more likely true than not, then you must find that the defendant has proved that fact. On the other hand, if you decide that the evidence regarding the facts for extreme emotional distress is evenly balanced or is not more likely true, then you must find that the fact has not been proved by the defendant.
Your decision on special mitigation, extreme emotional distress, will be reflected in the Special Verdict Form.
Imperfect self-defense is an affirmative defense that can reduce aggravated murder to murder, attempted aggravated murder to attempted murder, murder to manslaughter, and attempted murder to attempted manslaughter. See Utah Code Ann. § 76-5-202(4) (aggravated murder); Utah Code Ann. § 76-5-203(4) (murder).
When the defense is asserted, the State must disprove the defense beyond a reasonable doubt before the defendant can be convicted of the greater crime. If the State cannot disprove the defense beyond a reasonable doubt, the defendant can be convicted only of the lesser crime.
Instructing the jury on imperfect self-defense has proved to be problematic because many practitioners have tried to include the defense as an element of either or both of the greater crime and the reduced crime. The inevitable result is that the elements instruction on the reduced crime misstates the burden of proof on the defense as it applies to that reduced crime. See, e.g., State v. Lee, 2014 UT App 4, 318 P.3d 1164.
To avoid these problems, these instructions direct the jury to decide the defense exclusively through a special verdict form. Under this approach, the jury is given a standard elements instruction on the greater offense, with no element addressing imperfect self-defense. If the jury finds that the State has proved the elements of the greater offense beyond a reasonable doubt, the jury enters a guilty verdict on that offense. The jury is directed to the imperfect self-defense instructions and instructed that it must complete the imperfect self-defense special verdict form. On the special verdict form, the jury must indicate whether it has unanimously found that the State disproved the defense beyond a reasonable doubt. If the jury indicates the State has disproved the defense, the trial court enters a conviction for the greater crime. If the jury indicates the State has not disproved the defense, the trial court enters a conviction for the lesser crime.
The committee considered State v. Drej, 2010 UT 35, 233 P.3d 476, and concluded that it does not preclude this approach.
Defense of Self or Other is also sometimes called perfect self-defense because it is a complete defense to [Aggravated Murder] [Attempted Aggravated Murder] [Murder] [Attempted Murder] [Manslaughter]. Another form of self-defense is called imperfect self-defense because it is only a partial defense, not a complete defense, to [Aggravated Murder] [Attempted Aggravated Murder] [Murder] [Attempted Murder]. Imperfect self-defense reduces the level of the offense.
Imperfect self-defense applies when the defendant [caused the death] [attempted to cause the death] of another while incorrectly, but reasonably, believing that his/her conduct was legally justified or excused. In other words, it applies when a defendant makes a reasonable mistake of law—when he acts under a reasonable belief that the circumstances provided a legal justification or excuse for his conduct although the conduct was not legally justifiable or excusable under the existing circumstances. The reasonable belief of the defendant shall be determined from the viewpoint of a reasonable person under the circumstances.
State v. Bonds, 2023 UT 1, 524 P.3d 581
State v. Lee, 2014 UT App 4, ¶ 41-42, 318 P.3d 1164(Voros, J., concurring)
State v. Cabututan,2022 UT App 41,508 P.3d 1003 (2022)
State v. Silva, 2019 UT 36, 456 P.3d 718
State v. Low, 2008 UT 58, 192 P.3d 867
State v. Spillers, 2007 UT 13, 152 P.3d 315
• In addition to other applicable self-defense instructions (seeCR510 through CR543), use CR1451;
• Use the “Special Verdict Imperfect Self-Defense” special verdict form;
• Do not include “imperfect self-defense” as a defense in the elements instruction;
• Imperfect self-defense does not apply to manslaughter;
• Always distinguish between perfect and imperfect self-defense throughout the instructions; and
• Add the following paragraph at the bottom of the aggravated murder, attempted aggravated murder, murder, or attempted murder elements instruction
If you find Defendant GUILTY beyond a reasonable doubt of [Aggravated Murder] [Attempted Aggravated Murder] [Murder] [Attempted Murder], you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self defense is addressed in Instruction ___.
In the rare circumstance where imperfect self-defense is available but perfect self-defense is not available, practitioners will have to modify this instruction as appropriate. For example, practitioners should include CR510 through CR540, as applicable, because the jury will have to understand basic principles of perfect self-defense in order to understand imperfect self-defense. The imperfect self-defense instruction should clearly state that even though the jury should not consider perfect self-defense, it must still consider imperfect self-defense.
Last Revised - 05/03/2023
This instruction is out for public comment until December 1st, 2023.
The defendant is not required to prove that imperfect self-defense applies. Rather, the State must prove beyond a reasonable doubt that imperfect self-defense does not apply.
As Instruction ____ provides, for you to find the defendant guilty of [Aggravated Murder] [Attempted Aggravated Murder] [Murder] [Attempted Murder] [Manslaughter], the State must prove beyond a reasonable doubt that perfect self-defense does not apply. Consequently, your decision regarding perfect self-defense will be reflected in the “Verdict” form for Count [#].
If you find the defendant guilty of [Aggravated Murder] [Attempted Aggravated Murder] [Murder] [Attempted Murder], you must also consider imperfect self-defense. The State must prove beyond a reasonable doubt that imperfect self-defense does not apply. Your decision regarding imperfect self-defense will be reflected in the special verdict form titled “Special Verdict Form Imperfect Self-Defense.”