The Advisory Committee on the Model Utah Criminal Jury Instructions has drafted instructions with the following principles in mind:
Where available, the Committee urges practitioners to use jury instructions from the Second Edition of the Model Utah Jury Instructions to the exclusion of other instructions. When an approved instruction is not available, practitioners should focus on substance, as well as format, in drafting proposed instructions.
(Ladies and Gentlemen) (Members of the Jury), you have been selected and sworn as the jury in this case. The defendant is accused of committing one or more crimes. You will decide if the defendant is guilty or not guilty. I will give you some instructions now and some later. You are required to consider and follow all my instructions. Keep an open mind throughout the trial. At the end of the trial you will discuss the evidence and reach a verdict. You took an oath to "well and truly try the issues pending between the parties" and to "render a true and just verdict." The oath is your promise to do your duty as a member of the jury. Be alert. Pay attention. Follow my instructions.
References
The prosecution has filed a document-called an "Information"-that contains the charges against the defendant. The Information is not evidence of anything. It is only a method of accusing a defendant of a crime. The Information will now be read.(Read Information)The defendant has entered a plea of not guilty and denies committing the crime(s). Every crime has component parts called "elements." The prosecution must prove each element beyond a reasonable doubt. Until then, you must presume that the defendant is not guilty. The defendant does not have to prove anything. (He) (She) does not have to testify, call witnesses, or present evidence.
The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the prosecution's proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find (him) (her) guilty. If, on the other hand, you think there is a real possibility that (he) (she) is not guilty, you must give (him) (her) the benefit of the doubt and find (him) (her) not guilty.
Committee Notes
Remember, the fact that the defendant is charged with a crime is not evidence of guilt. The law presumes that the defendant is not guilty of the crime(s) charged. This presumption persists unless the prosecution's evidence convinces you beyond a reasonable doubt that the defendant is guilty.
All of us, judge, jury, and lawyers, are officers of the court and have different roles during the trial:
Neither the lawyers nor I decide the case. That is your role. You are the exclusive judges of all questions of fact. Do not be influenced by what you think our opinions might be. Make your decision based on the law given in my instructions and on the evidence presented in court.
Committee Amended
As jurors you will decide whether the defendant is guilty or not guilty. You must base your decision only on the evidence. Evidence usually consists of the testimony and exhibits presented at trial. Testimony is what witnesses say under oath. Exhibits are things like documents, photographs, or other physical objects. The fact that the defendant has been accused of a crime and brought to trial is not evidence. What the lawyers say is not evidence. For example, their opening statements and closing arguments are not evidence.
Rules govern what evidence may be presented to you. On the basis of these rules, the lawyers may object to proposed evidence. If they do, I will rule in one of two ways. If I sustain the objection, the proposed evidence will not be allowed. If I overrule the objection, the evidence will be allowed.Do not evaluate the evidence on the basis of whether objections are made.
I will now explain how the trial will unfold. The prosecution will give its opening statement. An opening statement gives an overview of the case from one point of view, and summarizes what that lawyer thinks the evidence will show. Defense counsel may choose to make an opening statement right after the prosecutor, or wait until after all of the prosecution's evidence has been presented, or not make one at all. You will then hear the prosecution's evidence. Evidence is usually presented by calling and questioning witnesses. What they say is called testimony. A witness is questioned first by the lawyer who called that witness and then by the opposing lawyer.[For judges who permit juror questions, add: After the lawyers finish with their questions you will have the opportunity to submit questions. In a moment I will explain how to do this.]Consider all testimony, whether from direct or cross-examination, regardless of who calls the witness. After the prosecution has presented all its evidence, the defendant may present evidence, though the defendant has no duty to do so. If the defendant does present evidence the prosecution may then present additional evidence. After both sides have presented all their evidence, I will give you final instructions on the law you must follow in reaching a verdict. You will then hear closing arguments from the lawyers. The prosecutor will speak first, followed by the defense counsel. Then the prosecutor speaks last, because the government has the burden of proof. Finally, you will deliberate in the jury room. You may take your notes with you. You will discuss the case and reach a verdict.
From time to time I will call a recess. It may be for a few minutes or longer. During recesses, do not talk about this case with anyone-not family, not friends, not even each other. Until the trial is over, do not mingle or talk with the lawyers, parties, witnesses or anyone else connected with the case. Court clerks or bailiffs can answer general questions, such as the length of breaks or the location of restrooms. But they cannot comment about the case or anyone involved. The goal is to avoid the impression that anyone is trying to influence you improperly. If people involved in the case seem to ignore you outside of court, they are just following this instruction.Until the trial is over, do not read or listen to any news reports about this case. If you observe anything that seems to violate this instruction, report it immediately to a clerk or bailiff.
From time to time I will call a recess. It may be for a few minutes or longer. During recesses, do not talk about this case with anyone-not family, not friends, not even each other. Until the trial is over, do not mingle or talk with the lawyers, parties, witnesses or anyone else connected with the case. Court clerks or bailiffs can answer general questions, such as the length of breaks or the location of restrooms. But they cannot comment about the case or anyone involved. The goal is to avoid the impression that anyone is trying to influence you improperly. If people involved in the case seem to ignore you outside of court, they are just following this instruction.
Until the trial is over, do not read or listen to any news reports about this case. Do not do any research or visit any locations related to this case. If you observe anything that seems to violate this instruction, report it immediately to a clerk or bailiff.
Jurors have caused serious problems during trials by using electronic devices-such as phones, tablets, or computers-to research issues or share information about a case. You may be tempted to use these devices to investigate the case or to share your thoughts about the trial with others. Don't. While you are serving as a juror, you must not use electronic devices for these purposes, just as you must not read or listen to any sources outside the courtroom about the case or talk to others about it.
You violate your oath as a juror if you conduct your own investigation or if you communicate about this trial with others, and you may face serious personal consequences if you do. Let me be clear: do not "Google" the parties, witnesses, issues, or counsel; do not "Tweet" or text about the trial; do not use electronic devices to gather or send information on the case; do not post updates about the trial on Facebook pages; do not use Wikipedia or other internet information sources, etc. Even using something as seemingly innocent as "Google Maps" or a dictionary to look up terms can result in a mistrial.
Please understand that the rules of evidence and procedure have developed over hundreds of years in order to ensure the fair resolution of disputes. The fairness of the entire system depends on you reaching your decisions based on evidence presented to you in court and not on other sources of information.
Post-trial investigations can occur. If improper activities are discovered at any time, they will be brought to my attention and the entire case might have to be retried at substantial cost.
Feel free to take notes during the trial to help you remember the evidence, but do not let note-taking distract you. Your notes are not evidence and may be incomplete.
During the trial you may ask questions of the witnesses. However, to make sure the questions are legally appropriate, we will use the following procedure: After the lawyers have finished questioning each witness, I will ask if you have any questions. If you do, please do not ask the question out loud. Write it down and hand it to a bailiff. The bailiff will hand me your question. I will review it with the lawyers to make sure it is legally permissible. If the question is appropriate, it will be addressed. If not, I will tell you.
Members of the jury, you now have all the evidence. Three things remain to be done:First, I will give you additional instructions that you will follow in deciding this case.Second, the lawyers will give their closing arguments. The prosecutor will go first, then the defense. Because the prosecution has the burden of proof, the prosecutor may give a rebuttal.Finally, you will go to the jury room to discuss and decide the case.
You have two main duties as jurors.
The first is to decide from the evidence what the facts are. Deciding what the facts are is your job, not mine. You are the exclusive judges of all questions of fact.
The second duty is to take the law I give you in the instructions, apply it to the facts, and decide if the prosecution has proved the defendant guilty beyond a reasonable doubt.
You are bound by your oath to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions I gave you before trial, any instructions I may have given you during the trial, and these instructions. All the instructions are important, and you should consider them as a whole. The order in which the instructions are given does not mean that some instructions are more important than others. Whether any particular instruction applies may depend upon what you decide are the true facts of the case. If an instruction applies only to facts or circumstances you find do not exist, you may disregard that instruction.
Perform your duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way. [You must also not let yourselves be influenced by public opinion.]
When the lawyers give their closing arguments, keep in mind that they are advocating their views of the case. What they say during their closing arguments is not evidence. If the lawyers say anything about the evidence that conflicts with what you remember, you are to rely on your memory of the evidence. If they say anything about the law that conflicts with these instructions, you are to rely on these instructions.
During the trial I have made certain rulings. I made those rulings based on the law, and not because I favor one side or the other.However,
As the judge, I am neutral. If I have said or done anything that makes you think I favor one side or the other, that was not my intention. Do not interpret anything I have done as indicating that I have any particular view of the evidence or the decision you should reach.
You must base your decision only on the evidence that you saw and heard here in court.Evidence includes:
Transcripts, police reports, or other written, audio, or visual materials may have been referenced during the trial but not admitted as exhibits. It is common during deliberations for jurors to ask to review these materials or to have transcripts of what witnesses said during trial. These materials, other than what may have been admitted as exhibits, may not be requested as part of your deliberations.
In deciding this case you will need to decide how believable each witness was. Use your judgment and common sense. Let me suggest a few things to think about as you weigh each witness's testimony:
[As I instructed you before] Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If the evidence leaves you firmly convinced that the defendant is guilty of the crime charged, you must find the defendant "guilty." On the other hand, if there is a real possibility that (he) (she) is not guilty, you must give the defendant the benefit of the doubt and return a verdict of "not guilty."
This is an abbreviated version of the reasonable doubt instruction approved in State v. Reyes, 2005 UT 33, 116 P.3d 305. The only difference is that it lacks the reference to the standard used in civil trials. This instruction may be used as a closing instruction if the full Reyes instruction was given as part of the preliminary instructions (as the Committee recommends). If that instruction was not given earlier, then the full Reyes instruction should be given at closing.
As an alternative to using the Reyes instruction, in State v. Cruz, 2005 UT 45, 122 P.3d 543 (argued the same day as Reyes) the Utah Supreme Court concluded that an alternative formulation of the reasonable doubt instruction, taken as a whole, adequately conveyed to the jury the concept of reasonable doubt, provided a clear and accurate definition of the concept, and correctly stated the prosecution's burden. Accordingly, the courts and counsel may appropriately use either the Reyes instruction or the collective reasonable doubt instructions used in Cruz.
Facts may be proved by direct or circumstantial evidence. The law does not treat one type of evidence as better than the other.Direct evidence can prove a fact by itself. It usually comes from a witness who perceived firsthand the fact in question. For example, if a witness testified he looked outside and saw it was raining, that would be direct evidence that it had rained.Circumstantial evidence is indirect evidence. It usually comes from a witness who perceived a set of related events, but not the fact in question. However, based on that testimony someone could conclude that the fact in question had occurred. For example, if a witness testified that she looked outside and saw that the ground was wet and people were closing their umbrellas, that would be circumstantial evidence that it had rained.Before you can find the defendant guilty of any charge, there must be enough evidence-direct, circumstantial, or some of both-to convince you of the defendant's guilt beyond a reasonable doubt. It is up to you to decide.
The defendant testified at trial. Another instruction mentions some things for you to think about in weighing testimony. Consider those same things in weighing the defendant's testimony. Don't reject the defendant's testimony merely because he or she is accused of a crime.
A person accused of a crime may choose whether or not to testify. In this case the defendant chose not to testify. Do not hold that choice against the defendant. Do not try to guess why the defendant chose not to testify. Do not consider it in your deliberations. Decide the case only on the basis of the evidence. The defendant does not have to prove that he or she is not guilty. The prosecution must prove the defendant's guilt beyond a reasonable doubt.
A person cannot be found guilty of a criminal offense unless that person's conduct is prohibited by law, AND at the time the conduct occurred, the defendant demonstrated a particular mental state specified by law."Conduct" can mean both an "act" or the failure to act when the law requires a person to act. An "act" is a voluntary movement of the body and it can include speech.As to the "mental state" requirement, the prosecution must prove that at the time the defendant acted (or failed to act), (he) (she) did so with a particular mental state. For each offense, the law defines what kind of mental state the defendant had to have, if any. For some crimes the defendant must have acted "intentionally" or "knowingly." For other crimes it is enough that the defendant acted "recklessly," with "criminal negligence," or with some other specified mental state.Later I will instruct you on the specific conduct and mental state that the prosecution must prove before the defendant can be found guilty of the crime(s) charged.
The law requires that the prosecutor prove beyond a reasonable doubt that the defendant acted with a particular mental state.Ordinarily, there is no way that a defendant's mental state can be proved directly, because no one can tell what another person is thinking.A defendant's mental state can be proved indirectly from the surrounding facts and circumstances. This includes things like what the defendant said, what the defendant did, and any other evidence that shows what was in the defendant's mind.
A defendant's "mental state" is not the same as "motive." Motive is why a person does something. Motive is not an element of the crime(s) charged in this case. As a result, the prosecutor does not have to prove why the defendant acted (or failed to act).However, a motive or lack of motive may help you determine if the defendant did what (he) (she) is charged with doing. It may also help you determine what (his) (her) mental state was at the time.
In making your decision, do not consider what punishment could result from a verdict of guilty. Your duty is to decide if the defendant is guilty beyond a reasonable doubt. Punishment is not relevant to whether the defendant is guilty or not guilty.
Because this is a criminal case, every single juror must agree with the verdict before the defendant can be found "guilty" or "not guilty." That is, you must be unanimous in your verdict for each count charged.
To help you in reaching unanimous agreement, I recommend that you not commit yourselves to a particular verdict before discussing all the evidence. In addition, you may not use methods of chance, such as drawing straws or flipping a coin.
Rather, in the jury room, consider the evidence and speak your minds with each other. Listen carefully and respectfully to each other's views and keep an open mind about what others have to say. If there is a difference of opinion about the evidence or the verdict, do not hesitate to change your mind if you become convinced that your position is wrong. On the other hand, do not give up your honestly held views about the evidence simply to agree on a verdict, to give in to pressure from other jurors, or just to get the case over with.
In the end, your vote must be your own. A unanimous verdict must reflect the individual, careful, and conscientious judgment of each juror as to whether the defendant is guilty or not guilty.
Increasingly, Utah's appellate courts are identifying circumstances where it is not clear that the jury was adequately instructed on the constitutional requirement that a jury's verdict be unanimous. See the references above for examples. In cases where different alleged acts can satisfy the same element, practitioners should add or amend proposed jury instructions and verdict forms to address unanimity concerns.
Because different facts and circumstances will require case-specific unanimity instructions, practitioners should tailor elements instructions and use CR430, CR431, and CR432 where appropriate to meet Utah's constitutional requirement that a jury's verdict be unanimous.
The committee cautions against relying exclusively on the model instructions to ensure unanimity. Practitioners should amend the language of particular elements instructions and verdict forms to clarify which specific acts relate to which charged offenses. The instructions must instruct the jury that it must unanimously agree that all elements have been proven beyond a reasonable doubt for each count. The use of special verdict forms is also encouraged. The committee recommends that practitioners employ additional approaches where needed to confirm that jury verdicts are unanimous.
Among the first things you should do when you go to the jury room to deliberate is to appoint someone to serve as the jury foreperson. The foreperson should not dominate the jury's discussion, but rather should facilitate the discussion of the evidence and make sure that all members of the jury get the chance to speak. The foreperson's opinions should be given the same weight as those of other members of the jury. Once the jury has reached a verdict, the foreperson is responsible for filling out and signing the verdict form(s) on behalf of the entire jury.For each offense, the verdict form will have two blanks-one for "guilty" and the other for "not guilty." The foreperson will fill in the appropriate blank to reflect the jury's unanimous decision. In filling out the form, the foreperson needs to make sure that only one blank is marked for each charge.
These instructions should contain all the information you need to decide this case based upon the evidence. However, if you have a question or need clarification during deliberations, write a note and give it to the bailiff. I will review it with the lawyers. We will answer your question as appropriate.
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree. Your verdict must be unanimous.
It is your duty to consult with one another and to deliberate. Your goal should be to reach an agreement if you can do so without surrendering your individual judgment. Each of you must decide the case for yourself, but do so only after impartially considering the evidence with your fellow jurors. Do not hesitate to reexamine your own views and change your position if you are convinced it is mistaken. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or just to return a verdict.
You are judges -- judges of the facts. Your sole interest is to determine the truth from the evidence in the case.
If you determine beyond a reasonable doubt that (DEFENDANT'S NAME) committed (NAME OF RELEVANT OFFENSE), you must complete the special verdict form. Check the box on the form for each factor that you as the jury unanimously find the prosecution has proven beyond a reasonable doubt. Do not check the box for any factor the prosecution has failed to prove beyond a reasonable doubt.
Even if you do not check any boxes, the foreperson must sign the special verdict form.
(DEFENDANT'S NAME) is charged [in Count ____] with committing (CRIME) [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.
This is a pattern elements instruction that can apply in most cases. If the date or the location of a crime could be considered an element of the offense, it should be included within the list of elements. In some circumstances, identifying the specific counts might help the jury sort through offenses with similar elements. In those circumstances, the specific counts should be identified in the first paragraph.
With respect to the bracketed defense element, unless the statute directs otherwise, the trial court should instruct the jury that the State has the burden to disprove an affirmative, partial, or justification defense beyond a reasonable doubt.
A person acts ["intentionally"] ["willfully"] ["with intent"] when [his][her] conscious objective is to:
A person acts ["intentionally"] ["willfully"] ["with intent"] when [his][her] conscious objective is to cause a certain result.
A person acts ["intentionally"] ["willfully"] ["with intent"] when [his][her] conscious objective is to engage in certain conduct.
"Conduct means either an act or an omission.
This instruction should be used when intentionality goes to one's conduct rather than to the result of one's conduct. See, e.g., Utah Code §§ 76-5-209, homicide by assault; 76-6-106(2)(b), criminal mischief (variation); and 58-37-8(2)(g) having a measurable amount of controlled substance in system and driving negligently, thereby causing serious bodily injury or death.
An example of an offense in which the conduct is an omission rather than an act is failure to report child abuse under Utah Code § 62A-4a-411.
A person acts ["knowingly"] ["with knowledge"] when the person:
"Conduct" means either an act or an omission.
A person acts ["knowingly"] ["with knowledge"] when the person is aware that [his] [her] conduct is reasonably certain to cause a particular result.
This instruction should be given for crimes in which the element of the defendant's knowledge goes to the result of his or her conduct. See, e.g., Utah Code §§ 76-5-203(2)(a), murder; 76-5-109(2)(a), child abuse; and 76-5-301, kidnapping.
The committee recognizes that this is not verbatim the instruction discussed by the Utah Supreme Court in Gardner v. Galetka, 2004 UT 42, 94 P.3d 263, but it feels this instruction adequately and more directly addresses the concept for crimes that require that the defendant knowingly cause a result. The committee also feels that it is inherent in the concept of knowingly causing a result that a defendant is aware of the nature of his conduct or the existing circumstances.
A person acts ["knowingly"] ["with knowledge"] when the person is aware of the nature of [his] [her] conduct, or is aware of the particular circumstances surrounding [his][her] conduct.
This instruction should be given for crimes in which the element of knowledge goes to one's conduct or to the circumstances surrounding one's conduct, rather than to the result of one's conduct. See, e.g., State v. Fontana, 680 P.2d 1042 (Utah 1984) (holding that the element of knowledge for purposes of depraved indifference murder, "refers to the nature of the actor's conduct or to the circumstances surrounding it, or both; it does not refer to the result produced by that conduct").
Since this instruction applies to crimes in which the element of knowledge goes to one's conduct or the circumstances surrounding one's conduct, rather than to the result of one's conduct, Gardner v. Galetka, 2004 UT 42, 94 P.3d 263, is inapplicable.
A person acts "recklessly" when [he][she] is aware of a substantial and unjustifiable risk that:
The nature and extent of the risk must be of such a magnitude that disregarding it is a gross deviation from what an ordinary person would do in that situation.
A person acts "recklessly" when [he][she] is aware of a substantial and unjustifiable risk that [his] [her] conduct will cause a particular result, but [he] [she] consciously disregards the risk and acts anyway.
A person acts "recklessly" when [he] [she] is aware of a substantial and unjustifiable risk that certain circumstances exist relating to [his] [her] conduct, but [he] [she] consciously disregards the risk and acts anyway.
Simple negligence means failing to exercise that degree of care which reasonable and prudent persons exercise under like or similar circumstances.
A person acts with criminal negligence when (he)(she) should be aware that (his)(her) conduct creates a substantial and unjustifiable risk that a particular result will occur.The nature and extent of the risk must be of such a magnitude that failing to perceive it is a gross deviation from what an ordinary person would perceive in that situation."Conduct" means either an act or an omission.
A person acts with criminal negligence when (he)(she) should be aware of a substantial and unjustifiable risk that certain circumstances exist relating to (his)(her) conduct.The nature and extent of the risk must be of such a magnitude that failing to perceive it is a gross deviation from what an ordinary person would perceive in that situation."Conduct" means either an act or an omission.
The concepts of "recklessness" and "criminal negligence" are similar in that both require the presence of a substantial and unjustifiable risk. They differ in that it is reckless to act if one is aware of the risk, while it is criminally negligent to act if one should be aware of the risk. In either event, the behavior must be a gross deviation from what an ordinary person would do under the same circumstances.
Unless these instructions give a definition, you should give all words their usual and ordinary meanings.
There are two types of witnesses: fact witnesses and expert witnesses. Usually a fact witness can testify only about facts that (he) (she) can see, hear, touch, taste or smell. An expert witness has scientific, technical or other special knowledge that allows the witness to give an opinion. An expert's knowledge can come from training, education, experience or skill. Experts can testify about facts, and they can give their opinions in their area of expertise.You may have to weigh one expert's opinion against another's. In weighing the opinions of experts, you may look at their qualifications, the reasoning process the experts used, and the overall credibility of their testimony. You may also look at things like bias, consistency, and reputation.Use your common sense in evaluating all witnesses, including expert witnesses. You do not have to accept an expert's opinion. You may accept it all, reject it all, or accept part and reject part. Give it whatever weight you think it deserves.
The defendant has been charged with more than one crime. It is your duty to consider each charge separately. For each crime charged, consider all of the evidence related to that charge. Decide whether the prosecution has presented proof beyond a reasonable doubt that the defendant is guilty of that particular crime. Your verdict on one charge does not determine your verdict on any other charge.
(DEFENDANT'S NAME) is charged as a party to the offense [in Count_____] with committing (CRIME) [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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
A person can commit a crime as a "party to the offense." In other words, a person can commit a criminal offense even though he or she did not personally do all of the acts that make up the offense. Before a person may be found guilty as a "party to the offense," you must find beyond a reasonable doubt that:
An important question in this case is the identification of the defendant as the person who committed the crime. The prosecution has the burden of proving beyond a reasonable doubt that the crime was committed AND that the defendant was the person who committed the crime. If you are not convinced beyond a reasonable doubt that the defendant is the person who committed the crime, you must find the defendant not guilty.The testimony you have heard concerning identification represents the witness's expression of (his) (her) belief or impression. You don't have to believe that the identification witness was lying or not sincere to find the defendant not guilty. It is enough that you conclude that the witness was mistaken in (his) (her) belief or impression.Many factors affect the accuracy of identification. In considering whether the prosecution has proven beyond a reasonable doubt that the defendant is the person who committed the crime, you should consider the following:(1) Did the witness have an adequate opportunity to observe the person who committed the crime? In answering this question, you should consider:
(a) the length of time the witness observed that person; (b) the distance between the witness and that person; (c) the extent to which that person's features were visible and undisguised; (d) the lighting conditions at the time of observation; (e) whether there were any distractions occurring during the observation; (f) any other circumstance that affected the witness's opportunity to observe the person committing the crime.
(a) stress or fright at the time of observation; (b) personal motivations, biases or prejudices; (c) uncorrected visual defects; (d) fatigue or injury; (e) drugs or alcohol.
(a) the length of time that passed between the witness's original observation and the time the witness identified the defendant; (b) the witness's mental capacity and state of mind at the time of the identification; (c) the exposure of the witness to opinions, to photographs, or to any other information or influence that may have affected the independence of the identification of the defendant by the witness; [(d) any instances when the witness either identified or failed to identify the defendant;] [(e) any instances when the witness gave a description of the person that was either consistent or inconsistent with the defendant's appearance;] (f) the circumstances under which the defendant was presented to the witness for identification.
Evidence was introduced at trial that the defendant may have fled or attempted to flee from the crime scene. This evidence alone is not enough to establish guilt. However, if you believe that evidence, you may consider it along with the rest of the evidence in reaching a verdict. It's up to you to decide how much weight to give that evidence.Keep in mind that there may be reasons for flight that could be fully consistent with innocence. Even if you choose to infer from the evidence that the defendant had a "guilty conscience," that does not necessarily mean (he) (she) is guilty of the crime charged.
Evidence was introduced at trial that the defendant may have fled or attempted to flee after having been accused of the crime. This evidence alone is not enough to establish guilt. However, if you believe that evidence, you may consider it along with the rest of the evidence in reaching a verdict. It's up to you to decide how much weight to give that evidence.Keep in mind that there may be reasons for flight that could be fully consistent with innocence. Even if you choose to infer from the evidence that the defendant had a "guilty conscience," that does not necessarily mean (he) (she) is guilty of the crime charged.
You have heard the testimony of a law enforcement officer. The fact that a witness is employed in law enforcement does not mean that (his) (her) testimony deserves more or less consideration than that of any other witness. It is up to you to give any witness's testimony whatever weight you think it deserves.
You have heard the testimony of a young witness. No witness is disqualified just because of age. There is no precise age that determines whether a witness may testify. The critical consideration is not the witness's age, but whether the witness understands the difference between what is true and what is not true, and understands the duty to tell the truth.
Evidence has been presented that the defendant was previously convicted of a crime. This evidence was brought to your attention only to help you evaluate the credibility of the defendant as a witness. Do not use it for any other purpose. It is not evidence that the defendant is guilty of the crime(s) for which (he) (she) is now on trial.
Evidence has been presented that a witness was previously convicted of a crime. This evidence was brought to your attention only to help you evaluate the credibility of that witness. Do not use it for any other purpose. It is not evidence of anything else.
You (are about to hear) (have heard) evidence that the defendant [insert 404(b) evidence] (before) (after) the act(s) charged in this case. This evidence (is) (was) not admitted to prove a character trait of the defendant or to show that (he) (she) acted in a manner consistent with that trait. You may consider this evidence, if at all, for the limited purpose of [practitioners must specify proper non-character purpose such as motive, intent, etc. and to which issue(s) it applies]. Keep in mind that the defendant is on trial for the crime(s) charged in this case, and for (that) (those) crime(s) only. You may not convict the defendant simply because you believe (he) (she) may have committed some other act(s) at another time.
When used, this instruction must be modified in accordance with State v. Lane and State v. Bell. Further, this instruction, if given, should be given at the time the 404(b) evidence is presented to the jury and, upon request, again in the closing instructions. Under Rule 105, the court must give a limiting instruction upon request of the defendant. The committee recognizes, however, that there may be times when a defendant, for strategic purposes, does not want a 404(b) instruction to be given at the time the evidence is introduced. In those instances, a record should be made outside the presence of the jury that the defendant affirmatively waives the giving of a limiting instruction.
404(b) allows evidence when relevant to prove any material fact, except criminal disposition as the basis for an inference that the defendant committed the crime charged. See State v. Forsyth. In the rare instance where, after the jury has been instructed, a party identifies another proper non-character purpose, the court may give additional instruction.
If the 404(b) evidence was a prior conviction admitted also to impeach under Rule 609, see instruction CR409.
If the instruction relates to a witness other than a defendant, it should be modified.
When lawyers agree that certain facts are true it is called a "stipulation of fact." You must accept any stipulated facts as having been proven. However, the significance of these facts, as with all facts, is for you to decide.
Lawyers may also agree that a witness, if called, would offer certain testimony. That is called a "stipulation of expected testimony." Although you must accept that the witness would give this testimony, you do not have to accept that testimony as true. You may consider it and give it whatever weight it deserves.
There has been evidence suggesting that [a person] [persons] other than the defendant may have been involved in the crime for which the defendant is on trial. Your duty in this case is to decide only whether the prosecutor has proven, beyond a reasonable doubt, the guilt of the defendant who is on trial.
There is more than one defendant on trial. If evidence was admitted only as to one defendant, you may consider it in connection with that defendant only. You must consider the charges against each defendant separately.
You have heard from a witness who may be classified as an "in-custody informant." The law allows the use of such testimony. However, the testimony of an informant who provides evidence against a defendant must be examined and weighed by you with greater care than the testimony of an ordinary witness. Whether the informant's testimony has been affected by interest or prejudice against the defendant is for you to determine. In making that determination, you should consider:
In sum, you should look at all of the evidence in deciding what credence and what weight, if any, you would give to the jailhouse informant. You should bear in mind that a witness who has entered into such an agreement with the government may have an interest in the case different than any ordinary witness. A witness who believes that he may be able to obtain his own freedom, or receive a lighter sentence by giving testimony favorable to the prosecution, has motive to testify falsely. Therefore, you must examine [his] [her] testimony with caution and weigh it with great care. If, after scrutinizing [his] [her] testimony, you decide to accept it, you may give it whatever weight, if any, you find it deserves.
Evidence was introduced at trial that [Officer Name] may have intentionally or recklessly disregarded the requirement that
[an officer shall activate the body-worn camera prior to any law enforcement encounter, or as soon as reasonably possible]
[an officer shall record in an uninterrupted manner until after the conclusion of a law enforcement encounter, and there was not an exception allowed by law]
[an officer may not deactivate the body-worn camera until the officer's direct participation in the law enforcement encounter is complete]
[any other requirement].
Based upon that evidence, you may make an inference against the officer. It is up to you to decide how much weight to give that evidence.
Count (#) charges (DEFENDANT'S NAME) with (CRIME). The prosecution argues that the defendant may have committed the offense by [WAY 1][WAY 2][WAY 3].
You may not find (DEFENDANT'S NAME) guilty on this count unless you unanimously agree that the prosecution has proven that (DEFENDANT'S NAME) committed (CRIME) in at least one of those specific ways AND you unanimously agree on the specific way in which the defendant committed the offense.
CR430 should be used in circumstances where the prosecution presents evidence that, if believed, could support a finding that the defendant committed two or more acts that could have been charged as separate offenses, but were not. See, e.g., State v. Paule, 2021 UT App 120. For example, the prosecution presents evidence that the defendant obstructed justice by attempting to dispose of a weapon, disposing of his phone, and fleeing the state, but the defendant was charged with only one count of obstruction of justice. In addition to CR430, the committee encourages practitioners to use a special verdict form or forms to confirm that the jury reached a unanimous verdict.
06/05/2024
The prosecution has charged in Count (#) through Count (#) that (DEFENDANT'S NAME) committed (CRIME) multiple times. Although each of these counts has similar or identical elements, you must consider each count separately and reach unanimous agreement on whether (DEFENDANT'S NAME) is guilty or not guilty of each individual count. You may not find the defendant guilty of any count unless you unanimously agree the prosecution has proven the specific act in the elements of the offense for each count AND you unanimously agree the prosecution has proven all other elements of the count. You may find the defendant guilty of all of these counts, none of these counts, or only some of these counts; but for each count your decision must be unanimous.
In this case:
The prosecution has charged in Count (#) through Count (#) that (DEFENDANT'S NAME) committed (CRIME). The prosecution argues that (DEFENDANT'S NAME) may have committed (CRIME) more times than the number of charged counts. When determining whether (DEFENDANT'S NAME) committed (CRIME), you must be unanimous as to which occasion and which act (DEFENDANT'S NAME) committed for each count, and that the prosecution has proven all the elements for that count. You may find (DEFENDANT'S NAME) guilty of all these counts, none of these counts, or only some of these counts; but for each count your decision must be unanimous.
CR432 should be used in circumstances where the prosecution has presented evidence that the offense may have occurred more times than the prosecution has charged. See, e.g., State v. Alires, 2019 UT App 206. For example, an alleged victim testifies that sexual abuse happened on five occasions and the prosecution charges only three counts of sexual abuse. In addition to CR432, the committee encourages practitioners to specify in the elements instruction the particular act that is the basis for the charge and to use a special verdict form or forms where appropriate to confirm that the jury reached a unanimous verdict.
You must decide whether the defense of entrapment applies in this case. Under that defense, the defendant is not guilty of an offense if (he)(she) acted because (he)(she) was entrapped into committing the offense. A defendant carries no burden to prove the defense of entrapment. In other words, the defendant is not required to prove the defense of entrapment applies to (his)(her) conduct. Rather, the prosecution must prove beyond a reasonable doubt that entrapment does not apply.
Entrapment occurs when, in order to obtain evidence, a peace officer [or a person directed by or acting in cooperation with the peace officer] induces a person to commit an offense by methods that create a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
Many circumstances may affect the defense of entrapment. In considering whether the prosecution has proven beyond a reasonable doubt that entrapment does not apply, you should consider the following:
Keep in mind that not all the listed circumstances will apply in every case, and some cases might have circumstances that are not listed here.
[The defense of entrapment is unavailable when an element of the offense is causing or threatening bodily injury to a person other than a peace officer [or the person directed by or acting in cooperation with the peace officer].]
The Sixth Amendment to the United States Constitution guarantees that a person charged with a crime has the right to the assistance of counsel. This Constitutional guarantee also provides that an individual charged with a crime has the right to proceed to trial representing himself/herself. In this case the defendant will be representing himself/herself. You are not to let the fact that (DEFENDANT'S NAME) is representing himself/herself influence your decision in this case. Instead, you must decide this case based upon the law in the court's instructions and the evidence received during the course of the trial. When (DEFENDANT'S NAME) is acting as a lawyer in the case, [his] [her] words are not evidence. The rules that govern courtroom proceedings apply equally to both parties in this circumstance.
[(STANDBY COUNSEL'S NAME) has been appointed as standby counsel to the defendant but not to act as his/her attorney. In electing to represent himself/herself, the defendant has assumed the full responsibility of acting as his/her own attorney.]
State v. Rohwedder, 2018 UT App. 182 (2018) (Mortensen, J., concurring).State v. Frampton, 737 P.2d 183 (Utah 1987).
The circumstances involving pro se representation by defendants can vary widely. Depending on the court's pretrial rulings and the legal circumstances, the parties should consider omitting this instruction or making appropriate modifications to this instruction.
This instruction is out for public comment until December 1st, 2023.
As a general rule, if the evidence supports an affirmative defense, the State "has the burden to prove beyond a reasonable doubt" that the defense does not apply. State v. Knoll, 712 P.2d 211, 214-15 (Utah 1985). See also State v. Low, 2008 UT 58, para.45, 192 P.3d 867 (stating that murder instruction was in error "because it lacked the necessary element that the State show the absence of the affirmative defense[]."); State v. Swenson, 838 P.2d 1136, 1138 (Utah 1992) (stating that "a long line of Utah cases imposes on the prosecution the burden to disprove the existence of affirmative defenses beyond a reasonable doubt.") There are some exceptions to the general rule. The following list provides examples of statutes which allocate the burden of proof to the defendant, who must prove the affirmative defense by a preponderance of the evidence:
Utah Code Ann. § 58-37c-19.7(3)(c), Drug precursor statute (re: red phosphorus)
Utah Code Ann. § 58-37c-20(3)(c), Drug precursor statute (re: pseudoephedrine)
Utah Code Ann. § 58-37-8(12)(d), Ceremonial use of peyote by Native Americans statute
Utah Code Ann. § 19-5-115(5)(e), Environmental code violations
Although not specifically characterized as an affirmative defense, there is a provision in Utah Code Ann. § 76-5-401(3), Unlawful Sexual Activity with a Minor, which operates similarly. If a defendant establishes by a preponderance of the evidence that he was less than 4 years older than the minor, it reduces the offense from a third degree felony to a class B misdemeanor.
You must decide whether the defense of compulsion applies in this case. Under that defense, a person is not guilty of a crime if (he) (she) acted because (he) (she) was coerced to do so by
The use or threatened use of force must be such that a person of reasonable firmness in defendant's situation would not have resisted.
The defense of compulsion is not available if the defendant intentionally, knowingly, or recklessly placed (himself) (herself) in a situation where it was probable that (he) (she) would be subjected to duress.
The defendant is not required to prove the defense applies. Rather, the State must prove beyond a reasonable doubt that the defense does not apply. The State has the burden of proof at all times. If the State has not carried this burden, then you must find the defendant not guilty.
The compulsion statute also provides that a married woman is not entitled to a presumption that she is subject to compulsion simply because her husband is present. See Utah Code Ann. § 76-2-302(3).
The defendant has been charged with ___________________. The charge requires the prosecution to prove that the defendant acted [intentionally] [knowingly] [intentionally [and] [or] knowingly]. You must decide whether the defense of intoxication applies to this charge. Intoxication (due to the consumption of drugs or alcohol) is a defense if there is reasonable doubt that the defendant acted intentionally or knowingly because (he) (she) was intoxicated.
The defendant does not have to prove that the defense of intoxication applies. Rather, the prosecution must prove beyond a reasonable doubt that intoxication did not prevent the defendant from acting [intentionally] [knowingly] [intentionally [and] [or] knowingly]. The prosecution carries the burden of proof. If the prosecution has not carried this burden, then you must find the defendant not guilty.
If you have a reasonable doubt about whether the defendant acted [intentionally] [knowingly] [intentionally [and] [or] knowingly]--due to (his) (her) intoxication--then you must find (him) (her) not guilty of the charged offense. However, intoxication is not a defense to [insert the title for the lesser offense that includes recklessness and/or criminal negligence as a mens rea].
You must decide whether the defense of voluntary termination applies in this case. The defendant is not guilty of [OFFENSE] if, before the crime was committed, (he) (she) voluntarily ended (his) (her) conduct in furtherance of the crime, and (he) (she)
This defense may apply even if the crime is completed by others.
The defendant is not required to prove that the defense of voluntary termination applies. Rather, the prosecution must prove beyond a reasonable doubt that the defense does not apply. The prosecution carries the burden of proof at all times. If the prosecution has not carried this burden, then you must find the defendant not guilty.
Count [#] charges the defendant with [_______]. [Lesser offense] is a lesser included offense of that charge. As you deliberate, you must determine whether the defendant is guilty of [the charged offense], guilty of [the lesser offense], or not guilty of either offense. The law does not require you to make these determinations in any particular order. However, you cannot find the defendant guilty of both [the charged offense] and [the lesser offense]. In other words, you can only return one verdict on count [#]: guilty of [the charged offense], guilty of [the lesser offense], or not guilty of either offense.
The elements for [the charged offense] are set forth in Instruction [#].
The elements for [the lesser offense] are set forth in Instruction [#].
The roadmap instruction proposed here may be appropriate in a case where only one lesser offense is at issue. If the case involves more than one lesser offense and/or affirmative defense, the roadmap should give more direction.
Reasonableness shall be determined from the viewpoint of a reasonable person under the then-existing circumstances.
The defense of Defense of Habitation is not limited to a habitation the defendant owns. The defense may apply to whatever place the defendant may be occupying peacefully as a substitute home or habitation, including but not limited to a hotel, motel, or where the defendant is a guest in another person's home.
You must decide whether the defense of Defense of Habitation applies in this case.
Under that defense, the defendant is justified in using force against another when and to the extent the defendant reasonably believes that force is necessary to:
The defendant is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:
The person using force or deadly force in defense of habitation is presumed to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry:
The prosecution may defeat the presumption by proving beyond a reasonable doubt that the entry was 1) lawful or 2) not made or attempted by use of force, or in a violent and tumultuous manner; or surreptitiously or by stealth; or for the purpose of committing a felony. The prosecution may also rebut the presumption by proving beyond a reasonable doubt that in fact the defendant's beliefs and actions were not reasonable.
The defendant carries no burden to prove the defense of Defense of Habitation. In other words, the defendant is not required to prove [he/she] was justified in using force or force likely to cause death or serious bodily injury. Rather, the prosecution must prove beyond a reasonable doubt that the defendant was not justified in using force or force likely to cause death or serious bodily injury. The prosecution carries the burden of proof beyond a reasonable doubt. If the prosecution has not carried this burden, then you must find the defendant not guilty.
You must decide whether the defense of Defense of Self or Other applies in this case. Under that defense, the defendant is justified in using force against another person when and to the extent that the defendant reasonably believes that force is necessary to defend [himself] [herself], or a third party, against another person's imminent use of unlawful force.
The defendant is justified in using force intended or likely to cause death or serious bodily injury only if the defendant reasonably believes that:
The defendant is not justified in using force if the defendant:
The following do not, by themselves, constitute "combat by agreement":
In determining imminence or reasonableness you may consider any of the following factors:
A defendant carries no burden to prove the defense of Defense of Self or Others. In other words, a defendant is not required to prove [he/she] was justified in using [force] [or] [force likely to cause death or serious bodily injury]. Rather, the prosecution must prove beyond a reasonable doubt that the defendant was not justified in using [force] [or] [force likely to cause death or serious bodily injury]. If the prosecution has not met this burden, then you must find the defendant not guilty.
A defendant does not have a duty to retreat from another person's use or threatened use of unlawful force before using force to defend [himself/herself] or a third party as long as the defendant is in a place where [he/she] has lawfully entered or remained.
However, if the defendant was the aggressor or was engaged in combat by agreement, the defendant must withdraw from the encounter and effectively communicate to the other person [his/her] intent to do so. If the other person nevertheless continues or threatens to continue the use of unlawful force, the defendant no longer has the duty to retreat.
A defendant is justified in using force, other than deadly force, against another person to defend real or personal property when and to the extent [he][she] reasonably believes the force is necessary to prevent or terminate the other person's criminal interference with real or personal property.
The property must have been:
In determining reasonableness, you must consider:
In the realm of DUI, practitioners often request that the court give instructions that comment on the sufficiency, or relative quality, of evidence. Some examples of such instructions include:
Instructions of this nature are disfavored and may run afoul of the Utah Supreme Court's admonition that trial courts should not comment upon the evidence. See State v. Pappacostas, 407 P.2d 576 (Utah 1965) and Utah R. Crim. P. 19(f).
You must initially determine whether the defendant was either driving a vehicle or was in actual physical control of a vehicle. In determining whether the defendant was in actual physical control of a vehicle on the date in question you must look to the totality of circumstances. Some factors to consider in determining whether a person is in actual physical control of a vehicle may include, but are not limited to:
[However, if you find that each of the following five circumstances exists, you must conclude that the defendant was not in actual physical control of a vehicle:
1. The defendant is asleep in the vehicle;
2. The defendant is not in the driver's seat
3. The engine of the vehicle is not running
4. The vehicle is lawfully parked; AND
5. Under the facts presented, it is evident that the defendant did not drive the vehicle to the location while under the influence of alcohol, a drug, or the combined influence of alcohol and any drug.]
This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Driving Under the Influence of [Alcohol][Any Drug][the Combined Influence of Alcohol and Any Drug] [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:
This instruction is intended to be used in prosecuting Class B Misdemeanor driving under the influence. For Class A Misdemeanor or Third Degree Felony driving under the influence instructions, use CR1004 or CR1005, respectively.
In the realm of DUI, courts often give instructions at the request of the parties that comment on the sufficiency, or relative quality, of evidence. These instructions are disfavored and may run afoul of the Utah Supreme Court's admonition that trial courts should not comment upon the evidence. See State v. Pappacostas, 407 P.2d 576 (Utah 1965); Utah R. Crim. P. 19(f) ; and CR1001 "Preamble to Driving Under the Influence Instructions."
As of July 1, 2020, Utah Code was amended to explicitly state that driving under the influence is a strict liability offense (see HB0139-2020, line 164). For any offense committed prior to July 1, 2020, there is divergent legal authority on whether driving under the influence is a strict liability offense with respect to the operation or actual physical control of the vehicle. See Utah Code § 76-2-101(2) (no mental state generally required for traffic offenses), State v. Higley, 2020 UT App 45, and State v. Thompson, 2017 UT App 183; but see State v. Vialpando, 2004 UT App 95, ¶ 26.
This instruction is intended to be used in prosecuting Class A Misdemeanor driving under the influence. For Class B Misdemeanor or Third Degree Felony driving under the influence instructions, use CR1003 or CR1005, respectively. An alternative method to instruct the jury would be to use CR1003 (MB Instruction) in combination with SVF1001 ("Driving Under the Influence Offenses").
This instruction is intended to be used in prosecuting Third Degree Felony driving under the influence. For Class B Misdemeanor or Class A Misdemeanor driving under the influence instructions, use CR1003 or CR1004, respectively. An alternative method to instruct the jury would be to use CR1003 (MB Instruction) in combination with SVF1001 ("Driving Under the Influence Offenses"). For Third Degree Felony driving under the influence offenses that result from a prior conviction or convictions, practitioners should request that the court address the prior convictions in a bifurcated proceeding and, if appropriate, use SVF1002 ("Driving Under the Influence - Prior Conviction").
(DEFENDANT'S NAME) is charged [in Count ____] with committing Automobile Homicide [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:
[1. (DEFENDANT'S NAME);
a. Operated a vehicle in a negligent or criminally negligent manner; and
b. This negligence caused the death of another; and
c. (DEFENDANT'S NAME):
i. [Had sufficient alcohol in [his] [her] body that a subsequent chemical test showed that [he] [she] had a blood or breath alcohol concentration of .05 grams or greater at the time of the test;]
ii. [Was under the influence of [alcohol] [a drug] [the combined influence of alcohol and a drug] to a degree that rendered [him] [her] incapable of safely operating a vehicle;] or
iii. [Had a blood or breath alcohol concentration of .05 grams or greater at the time of operation;]]
OR
[2. (DEFENDANT'S NAME);
a. Operated a vehicle in a criminally negligent manner; and
c. Had in [his] [her] body any measurable amount of a controlled substance.]
This instruction is intended to be used in prosecuting the crime of Automobile Homicide. For the definition of "negligent," see CR305. For the definition of "criminally negligent," see CR306A, CR306B, and CR307.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Driving with any Measurable Controlled Substance in the Body [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:
1. (DEFENDANT'S NAME);
2. Did operate or was in actual physical control of a vehicle; and
3. Had any measurable amount of a controlled substance or any metabolite of a controlled substance in [his] [her] body;
[and
4. The controlled substance was not:
(a) involuntarily ingested;
(b) prescribed by a practitioner for use;
(c) cannabis in a medicinal dosage form or a cannabis product in a medicinal dosage form; or
(d) otherwise legally ingested.]
Utah Code Ann. 41-6a-517(2)(a)
Utah Code Ann. 76-2-101(2)
State v. Outzen, 2017 UT 30, 408 P.3d 334
Practitioners are encouraged to use CR1201 to define "controlled substance." This instruction is intended to be used in prosecuting Class B Misdemeanor Driving with any Measurable Controlled Substance in the Body. For Driving Under the Influence—as found in Utah Code Ann. 41-6a-502— instructions, use CR1003, CR1004, or CR1005, respectively.
Similar to the offense of Driving Under the Influence, Driving with any Measurable Controlled Substance in the Body is a strict liability offense. See Utah Code Ann. § 76-2-101(2) (no mental state generally required for Title 41, Chapter 6a violations). But in contrast to Driving Under the Influence, Driving with any Measurable Controlled Substance in the Body does not require proof of impairment. See State v. Outzen, 2017 UT 30, paragraphs 7–12, 408 P.3d 334.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Negligently Operating a Vehicle Resulting in Injury [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:
a. Operated a vehicle in a negligent manner; and
b. This negligence caused [serious] bodily injury to another; and
This instruction is intended to be used in prosecuting the crime of Negligently Operating a Vehicle Resulting in Injury. Whether that offense constitutes a Class A Misdemeanor or a Third-Degree Felony depends on whether the Defendant caused bodily injury or serious bodily injury to another. See Utah Code Ann. 76-5-102.1(3)(a)(iv). Practitioners should use the bracketed "[serious]" language accordingly. The offense can also be a Third-Degree Felony based on prior convictions. See Utah Code Ann. 76-5-102.1(3)(a)(ii)-(iii). If the prosecution charges the defendant with causing serious bodily injury, and the defendant requests a lesser-included instruction on bodily injury, the Committee recommends referring to CR505 on lesser-included offenses and using a special verdict form.
For the definition of "negligent," see CR305. For the definition of "criminally negligent," see CR306A, CR306B, and CR307.
(DEFENDANT'S NAME) is charged [in Count ____] with committing an interlock restricted driver violation [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:
1. (DEFENDANT'S NAME)
2. (DEFENDANT'S NAME):
a. Operated or was in actual physical control of a vehicle without an ignition interlock system; [and]
b. [The affirmative defense of operating a vehicle in the scope of employment, as defined in Instruction ____, does not apply.]
For the definition of "actual physical control" see CR1002. Practitioners may also include instructions defining "vehicle" pursuant to Utah Code section 41-6a-102(90).
Whether a person is an interlock restricted driver is governed by Utah Code section 41-6a-518.2(b)(i)-(ii). The statute includes definitions, as well as a number of variants and affirmative defenses.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Alcohol Restricted Driver [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:
a. Operated a vehicle; or
b. Was in actual physical control of a vehicle; and
2. (DEFENDANT'S NAME) had any measurable or detectable amount of alcohol in [his][her] body; and
3. At the time of the act (DEFENDANT'S NAME) was an Alcohol Restricted Driver [under one or more of the following circumstances].
a. [insert all applicable circumstances causing Alcohol Restricted Driver status]
For the definition of "actual physical control" see CR 1002. Practitioners may also include instructions defining "vehicle" pursuant to Utah Code Section 41-6a-102(90) and "measurable or detectable amount" pursuant to Utah Code Section 41-6a-530(2).
The circumstances causing Alcohol Restricted Driver status are defined in Utah Code Section 41-6a-529(1). Depending on the facts of the case, practitioners should carefully consider removing element 3(a) from this elements instruction and instead use a special verdict form in a bifurcated proceeding.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Drinking an Alcoholic Beverage in a Motor Vehicle [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:
2. Drank an alcoholic beverage while:
a. Operating a [golf cart], [a motor vehicle], [a motor assisted scooter], [or a class 2 electric assisted bicycle]; or
b. They were a passenger in a motor vehicle; and
3. The vehicle is moving, stopped, or parked on [any highway] [or waters of the state].
This instruction contains bracketed language, which suggests optional language. Please review and edit before finalizing this instruction.
Please note that this offense has several exceptions as outlined in 41-6a-526(4). The offense does not apply to passengers in the living quarters of a motor home or camper; who have carried an alcoholic beverage onto a limousine or chartered bus (in compliance with Subsections 32B-4-415(4)(b) and (c)); or in a motorboat on the waters of the state.
Practitioners may also find value in using additional instructions to define pertinent statutory terms, such as "Alcoholic Beverage," "Chartered Bus," "Limousine," or "Waters of the State."
(DEFENDANT'S NAME) is charged [in Count ____] with committing Open Container in a Motor Vehicle [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:
1. (DEFENDANT'S NAME);2. Kept, carried, possessed, or transported, [or allowed another to keep, carry, possess or transport];3. In the passenger compartment of a [motor vehicle,] [on a golf cart,] [on a motor assisted scooter,] [or on a class 2 electric assisted bicycle];4. On any [highway] [or waters of the state];5. Any container that contained an alcoholic beverage; and6. The container had [been opened,] [its seal broken,] [or][the contents of the container partially consumed].
2. Kept, carried, possessed, or transported, [or allowed another to keep, carry, possess or transport];
3. In the passenger compartment of a [motor vehicle,] [on a golf cart,] [on a motor assisted scooter,] [or on a class 2 electric assisted bicycle];
4. On any [highway] [or waters of the state];
5. Any container that contained an alcoholic beverage; and
6. The container had [been opened,] [its seal broken,] [or][the contents of the container partially consumed].
Please note that this offense has several exceptions as outlined in 41-6a-526(4) and (5). The offense does not apply to passengers in the living quarters of a motor home or camper; who have carried an alcoholic beverage onto a limousine or chartered bus (in compliance with Subsections 32B-4-415(4)(b) and (c)); or in a motorboat on the waters of the state. Further, the prohibition on keeping, carrying, possessing, transporting, or allowing another to do those acts does not apply to passengers traveling in any licensed taxicab or bus.
Practitioners may also find value in using additional instructions to define pertinent statutory terms, such as "Alcoholic Beverage," "Chartered Bus," "Limousine," "Passenger Compartment," or "Waters of the State."
You are instructed that "Passenger Compartment" means the area of the vehicle normally occupied by the operator and passengers. This includes areas accessible to the operator and passengers while traveling, including a utility or glove compartment.
"Passenger Compartment" does not include a separate front or rear trunk compartment or other area of the vehicle not accessible to the operator or passengers while inside the vehicle.
Utah Code sect. 41-6a-526(1)(d)
(DEFENDANT'S NAME) is charged [in Count ____ ] with committing Failure to Stop at the Command of a Peace Officer [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:
1. After a peace officer issued a verbal or visual command to stop;
2. (DEFENDANT'S NAME);
3. [Intentionally] [Intentionally, knowingly, or recklessly] fled from or otherwise attempted to elude a peace officer;
4. For the purpose of avoiding arrest.
Utah Code Ann. § 76-8-305.5State v. Young, 2015 UT App 286, 364 P.3d 55Salt Lake City v. Gallegos, 2015 UT App 78, 347 P.3d 842State v. Alvarado, 2023 UT App 123, 538 P.3d 633State v. Bird, 2015 UT 7, 345 P.3d 1141State v. Nelson, 2024 UT App 75, 500 P.3d 495
This instruction is intended to be used in prosecuting Class A Misdemeanor Failure to Stop at the Command of a Peace Officer. For the Felony Failure to Respond to an Officer's Signal to Stop instruction, use CR1102 or CR1103.
This Committee cannot reach consensus as to whether the act of "fleeing or otherwise attempting to elude a peace officer" requires a mens rea, and if so, whether that mens rea is "intentionally" or "intentionally, knowingly, or recklessly." See State v. Bird, 2015 UT 7, paragraphs 18–24, 345 P.3d 1141; State v. Alvarado, 2023 UT App 123, paragraphs 29–36, 538 P.3d 633; State v. Nelson, 2024 UT App 75, paragraphs 14-17, 550 P.3d 495. Practitioners are encouraged to familiarize themselves with the statute and cases for these positions and draft their own instruction accordingly.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Failure to Respond to an Officer's Signal to Stop [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:
2. While operating a vehicle;
3. Knowingly received a visual or audible signal from a law enforcement officer to bring the vehicle to a stop;
4. And after receiving the visual or audible signal, he/she either:
a. Operated the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person;
b. Intentionally attempted to flee or elude a law enforcement officer by vehicle or other means.
State v. Bird, 2015 UT 7, 345 P.3d 1141
State v. Simpson, 904 P.2d 709 (Utah Ct. App. 1995)
Utah Code 41-6a-210
If the prosecution relies on alternative theories for an element, the jury packet should include the unanimity instruction found in CR430. The committee encourages practitioners to use a special verdict form or forms to confirm that the jury reached a unanimous verdict.
1. That (DEFENDANT'S NAME)
2. Knowingly received a visual or audible signal from a law enforcement officer to bring the vehicle to a stop; and
3. After receiving the visual or audible signal, [he] [she] [either]:
a. [Operated the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person;] [or]
b. [Intentionally attempted to flee or elude a law enforcement officer by vehicle or other means;] and
4 . Caused death or serious bodily injury to another person.
Utah Code 41-6a-210(2)
You are instructed that (NAME OF DRUG) is a [Schedule [I][II][III][IV][V] controlled substance][controlled substance analog].
Utah Code sect. 58-37-2(1)
Utah Code sect. 58-37-4.2
"Possession" of a controlled substance means:
[For a person to possess a controlled substance, it is not required that the person individually possess it. It is sufficient if the person participated with one or more persons in the possession of a controlled substance with knowledge that the activity was occurring, or the controlled substance is found in a place or under circumstances indicating constructive possession.]
Utah Code sect. 58-37-2
State v. Lucero, 350 P.3d 237 (2015)
Separate reference to the statutory term "use" was omitted from this instruction and the corresponding elements instruction because "possession" and "use" are defined identically in Utah Code section 58-37-2(1)(ii).
In addition, "belonging" and "occupying" were omitted from this instruction because the concepts are covered under the definition of constructive possession in CR 1202(b).
This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing this instruction.
A person is in constructive possession of [a controlled substance] [drug paraphernalia] when the person has the ability and the intent to exercise control over it. Factors relevant to deciding constructive possession may include the following:
(DEFENDANT'S NAME) is charged [in Count ___] with committing Possession of a Controlled Substance [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:
Utah Code sect. 58-37-4.2 Utah Code sect. 58-37-8(2)(a)(i) & (2)(d) State v. Miller, 2008 UT 61, 193 P.3d 92 State v. Ireland, 2006 UT 17, 133 P.3d 396
The defenses referenced in paragraph 4 of the instruction are affirmative defenses as defined by Utah statute or case law.
(DEFENDANT'S NAME) is charged [in Count ___] with committing Possession of a [Controlled Substance] [Counterfeit Substance] with Intent to Distribute [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:
Utah Code sect. 58-37-8(1)(a)(iii)
State v. Miller, 2008 UT 61, 193 P.3d 92
State v. Ireland, 2006 UT 17, 133 P.3d 396
(DEFENDANT'S NAME) is charged [in Count ___] with committing Possession of an Altered or Forged [Prescription] [Written Order [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:
Utah Code sect. 58-37-8(2)(a)(iii)
(DEFENDANT'S NAME) is charged [in Count ___] with committing Possession of Drug Paraphernalia [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:
You are instructed that "drug paraphernalia" means any equipment, product, or material used, or intended for use, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance; OR to inject, ingest, inhale, or otherwise introduce a controlled substance into the human body,
Drug paraphernalia includes but is not limited to:
In determining whether an object is drug paraphernalia, you should consider:
The Committee considers (13) to be circular if included in this jury instruction. In most cases, the use of CR 1207. Definition of "Drug Paraphernalia" is sufficient and should eliminate the need to use (13). But if the parties intend to include (13), additional jury instructions will be necessary to eliminate the statutory reference and explain the pertinent concept to the jury.
You must decide whether the State has proven that the defendant did not innocently possess the [controlled][chemical][counterfeit] substance. The defendant is not required to prove [he][she] innocently possessed the substance. Rather, the State must prove beyond a reasonable doubt the defendant did not innocently possess the substance. The State has the burden of proof at all times. A person innocently possesses a substance if
State v. Miller, 2008 UT 61.
Utah Code sect. 58-37-8
(DEFENDANT'S NAME) is charged [in Count ___] with committing Distribution of a [Controlled Substance] [Counterfeit Substance] [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:
Utah Code sect. 58-37-8(1)(a)(ii)
The defenses referenced in paragraph 3 of the instruction are affirmative defenses as defined by Utah statute or case law.
The defendant's mere presence at the place where the [controlled substance][counterfeit substance][paraphernalia] is located is not sufficient on its own to prove that the defendant was in possession of the [controlled substance][counterfeit substance][paraphernalia].
If you determine beyond a reasonable doubt that (DEFENDANT'S NAME) committed [Distribution of a [Controlled Substance][Counterfeit Substance]] [Possession of a [Controlled Substance][Counterfeit Substance] with Intent to Distribute], you must decide whether (DEFENDANT'S NAME) used a firearm during the commission of that crime. You cannot find that [he][she] used a firearm during the commission of the crime unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
Utah Code sect. 58-37-8(1)(c)
Only use this instruction and the SPECIAL VERDICT FORM if you have found (DEFENDANT'S NAME) guilty of (NAME OF RELEVANT OFFENSE) as charged in Count ___.
If you found (DEFENDANT'S NAME) guilty of (NAME OF RELEVANT OFFENSE) as charged in Count ___, you must now decide whether any of the following circumstances have been proven beyond a reasonable doubt.
Utah Code sect. 58-37-8(4)
Practitioners may need to modify this instruction to include any lesser-included offenses on which the jury was instructed and to which special enhancements may apply.
[(DEFENDANT'S NAME)'s belief or ignorance about the person's age is not a defense.]
[(DEFENDANT'S NAME)'s belief or ignorance about whether the location was (ONE OF LOCATIONS IDENTIFIED IN SPECIAL ENHANCEMENT INSTRUCTION) is not a defense.]
[A "house of worship" means a church, temple, synagogue, mosque, or other building set apart primarily for the purpose of worship in which religious services are held and the main body of which is kept for that use and not put to any other use inconsistent with its primary purpose]. See Utah Code § 76-10-501.
[A "correctional facility" means:
[A "firearm" means a pistol, revolver, shotgun, short barreled shotgun, rifle or short barreled rifle, or a device that could be used as a dangerous weapon from which is expelled a projectile by action of an explosive.] See Utah Code § 76-10-501.
["Bodily injury" means physical pain, illness, or any impairment of physical condition.]
["Substantial bodily injury" means bodily injury, not amounting to serious bodily injury, that creates or causes protracted physical pain, temporary disfigurement, or temporary loss or impairment of the function of any bodily member or organ.]
["Serious bodily injury" means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.]
Reference: Utah Code § 76-1-601
["Dangerous weapon" means:
["Military servicemember in uniform" means:
Reference: Utah Code §§ 76-5-102.4(1)(b), 39-1-5, and 39-1-9
["Peace officer" means:
Reference: Utah Code § 76-5-102.4(1)(c)
["Targeting a law enforcement officer" means the commission of any offense involving the unlawful use of force and violence against a law enforcement officer, causing serious bodily injury or death in furtherance of political or social objectives in order to intimidate or coerce a civilian population or to influence or affect the conduct of a government or a unit of government.]
Reference: Utah Code § 76-5-210
(DEFENDANT'S NAME) is charged [in Count ____] with committing Assault [against a Pregnant Person][that Caused Substantial Bodily Injury] [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:
If the case requires instruction on elements 2 or 3, practitioners should consider using a special verdict form (SVF1301), as these elements result in different levels of offense.
In cases involving domestic violence, practitioners should include a special verdict form (SVF1331) and instructions defining cohabitant (CR1330 and CR1331).
Utah appellate courts have not decided whether the cohabitant relationship between the defendant and the alleged victim is an element of the offense requiring proof of an associated mens rea (intentional, knowing, or reckless). Practitioners should review State v. Barela, 2015 UT 22.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Assault Against a School Employee [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:
(DEFENDANT'S NAME) is charged [in Count ____] with committing Assault Against a Peace Officer [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:
If the case requires instruction on more than one subpart under element 3, practitioners are advised to use separate elements instructions or a special verdict form (SVF1301), as these subparts result in different levels of offense.
Depending on the facts of the case, practitioners should carefully consider removing element 4.a. from this elements instruction and instead use a special verdict form in a bifurcated proceeding.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Assault Against a Military Servicemember in Uniform [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:
If the case requires instruction on more than one subpart under element 2, practitioners are advised to use separate elements instructions or a special verdict form (SVF1301), as these subparts result in different levels of offense.
Depending on the facts of the case, practitioners should carefully consider removing element 3.a. from this elements instruction and instead use a special verdict form in a bifurcated proceeding.
(DEFENDANT'S NAME) is charged [in Count ____] with committing Assault by Prisoner [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:
(DEFENDANT'S NAME) is charged [in Count ____] with committing Aggravated Assault [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:
If the case requires instruction on element 3, practitioners should consider using a special verdict form (SVF1301), as this element can result in different levels of offense.
When relevant to the facts of the case, this instruction should be used in connection with CR1322 (Aggravated Assault - Targeting a Law Enforcement Officer - Special Verdict Instructions) and SVF 1302 (Aggravated Assault - Targeting a Law Enforcement Officer).
(DEFENDANT'S NAME) is charged [in Count ____] with committing Aggravated Assault By Prisoner [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:
If you find (DEFENDANT'S NAME) guilty of Aggravated Assault, you must determine whether (DEFENDANT'S NAME) Targeted a Law Enforcement Officer at the time of this offense. To find (DEFENDANT'S NAME) Targeted a Law Enforcement Officer, you must find all three elements below beyond a reasonable doubt:
The State must prove beyond a reasonable doubt that (DEFENDANT'S NAME) Targeted a Law Enforcement Officer. Your decision must be unanimous and should be reflected on the special verdict form.
"Reside" means to dwell permanently or for a length of time; to have a settled abode for a time; to dwell permanently or continuously.
"Residence" is defined as "a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit." It does not require an intention to make the place one's home. It is possible that a person may have more than one residence at a time.
When determining whether (DEFENDANT'S NAME) and (VICTIM'S NAME) resided in the same residence, factors to consider include the following:
In deciding whether (DEFENDANT'S NAME) and (VICTIM'S NAME) were residing in the same residence, you are not limited to the factors listed above, but you may also apply the common, ordinary meaning of the definition to all of the facts and circumstances of this case.
If you find (DEFENDANT'S NAME) guilty of [CRIME], you must determine whether (DEFENDANT'S NAME) and (VICTIM'S NAME) were cohabitants at the time of this offense. To find (DEFENDANT'S NAME) was a cohabitant with (VICTIM'S NAME), you must find beyond a reasonable doubt, that (DEFENDANT'S NAME) and (VICTIM'S NAME) were 16 years of age or older, and at the time of the offense, (DEFENDANT'S NAME):
The State must prove beyond a reasonable doubt that (DEFENDANT'S NAME) and (VICTIM'S NAME) were cohabitants at the time of this offense. Your decision must be unanimous and should be reflected on the special verdict form.
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.
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.
"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:
Last Revised - 04/03/2019
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
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.”
["Bodily injury" means physical pain, illness, or any physical impairment.]
["Serious bodily injury" means bodily injury that creates a substantial risk of death or creates or causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.]
["Grievous sexual offense" means rape; rape of a child; object rape; object rape of a child; forcible sodomy; sodomy on a child; aggravated sexual abuse of a child; aggravated sexual assault; any felony attempt to commit one of the above offenses; or an offense in another state, territory, or district of the United States that, if committed in Utah, would constitute one of the above offenses.]
["Health professional" means an individual who is licensed or who holds himself or herself out to be licensed, or who otherwise provides professional physical or mental health services, diagnosis, treatment, or counseling including, but not limited to, a physician, osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist, social service worker, clinical social worker, certified social worker, marriage and family therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse specialist, or substance abuse counselor.]
Reference: Utah Code § 76-5-406
["Indecent liberties" means:
Reference: Utah Code Ann. § 76-5-416
Committee Note: The legislature enacted the above definition, effective May 14, 2019. Before that date, the definition was based upon case law. See, e.g., State v. Lewis, 2014 UT App 241, 337 P.3d 1053; State v. Peters, 796 P.2d 708 (Utah App. 1990)
["Position of special trust" means an adoptive parent; an adult athletic manager; an aunt; a babysitter; a coach; an adult cohabitant of a parent; a counselor; a doctor or physician; an employer; a foster parent; a grandparent; a legal guardian; a natural parent; an adult recreational leader; a religious leader; an adult sibling or stepsibling; an adult scout leader; a stepparent; a teacher or any other person employed by or volunteering at a public or private elementary school or secondary school, and who is 18 years of age or older; an uncle; an adult youth leader; any other person in a position of authority that enables the person to exercise undue influence over the child.]
Reference: Utah Code § 76-5-404.1
["Religious counselor" means a minister, priest, rabbi, bishop, or other recognized member of the clergy.]
Based on the principle of State v. Couch, 635 P.2d 89 (Utah 1981), the committee has chosen to provide definitions only for words defined by statute or case law. If the jury requests a definition for a word not defined by statute or case law, practitioners and judges should work together to define this word using its ordinary and accepted meaning. Id.
For the definition of "grievous sexual offense," see CR1617, Sexual Offense Prior Conviction.
The definition of "position of special trust" applies to crimes committed on or after May 13, 2014. For crimes committed before May 13, 2014, see State v. Watkins, 2013 UT 28, 309 P.3d 209.
In regard to in subpart 2.a. and 2.b. of the definition of "dangerous weapon," the committee considered the use of the word "victim" in light of State v. Vallejo, 2019 UT 38, ¶¶ 99-102, but chose to preserve the language set forth in the statute. Any attempt to alter the instruction in an effort to avoid the use of the word "victim" appears to impermissibly change the meaning of the statute.
(DEFENDANT'S NAME) is charged [in Count __] with committing Sexual Abuse of a Minor [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:
(DEFENDANT'S NAME) is charged [in Count _____] with committing Unlawful Sexual Activity with a Minor [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt all of the elements in one or more of the following variations:
VARIATION A:
[OR]
VARIATION B:
VARIATION C:
After you carefully consider all the evidence in this case, if you are convinced that each and every element of [one or more of the above variations] 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 [of at least one of the above variations] has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
Utah Code sect. 76-5-407
Variation A should be used with CR1616A, Conduct Sufficient to Constitute Sexual Intercourse for Unlawful Sexual Activity with a Minor, Unlawful Sexual Conduct with a 16 or 17 Year Old, or Rape.
(DEFENDANT'S NAME) is charged [in Count ___] with committing Unlawful Sexual Conduct with a 16 or 17 year old [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 [of one or more of the above variations] 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 [of at least one of the above variations] has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
If the State intends to rely on subsection 2d in combination with 2a, 2b, or 2c, use SVF 1604, Unlawful Sexual Conduct with a 16 or 17 year old special verdict form.
Subsection 2a should be used with CR1616A, Conduct Sufficient to Constitute Sexual Intercourse for Unlawful Sexual Activity with a Minor, Unlawful Sexual Conduct with a 16 or 17 Year Old, or Rape.
(DEFENDANT'S NAME) is charged [in Count__] with committing Rape [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:
Utah Code sect. 76-5-406
State v. Barela, 2015 UT 22.
Although the committee believes that the applicable mens rea as to element 4 would be knowledge or recklessness, it has included intent based on the Utah Supreme Court's opinion in State v. Barela, 2015 UT 22.
Use this instruction with CR 1616B, Conduct Sufficient to Constitute Sexual Intercourse for Rape.
If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.
(DEFENDANT'S NAME) is charged [in Count__] with committing Rape of a Child [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:
State v. Martinez, 2002 UT 60
State v. Martinez, 2000 UT App 320
Use this instruction with CR 1616B, Conduct Sufficient to Constitute Sexual Intercourse for Rape of a Child.
(DEFENDANT'S NAME) is charged [in Count ___] with committing Object Rape [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:
DEFENDANT'S NAME) is charged [in Count ___] with committing Object Rape of a Child [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:
(DEFENDANT'S NAME) is charged [in Count ___] with committing Forcible Sodomy [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:
State v. Barela, 2015 UT 22
Although the committee believes that the applicable mens rea as to element 4 would be knowledge or recklessness, it has included intent based on the Utah Supreme Court's opinion in State v. Barela.
CR1610 Sodomy on a Child.
(DEFENDANT’S NAME) is charged [in Count ___] with committing Sodomy on a Child [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:
1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly committed a sexual act with (MINOR’S INITIALS), involving any touching, however slight, of the genitals or anus of one person and the mouth or anus of the other, even if accomplished through clothing; and
3. (MINOR’S INITIALS) was under the age of 14 at the time of the conduct.
(DEFENDANT'S NAME) is charged [in Count__] with committing Forcible Sexual Abuse [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:
(DEFENDANT'S NAME) is charged [in Count__] with committing Sexual Abuse of a Child [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:
(DEFENDANT'S NAME) is charged [in Count__] with committing Aggravated Sexual Abuse of a Child [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:
Utah Code sect. 76-5-404.1 Utah Code sect. 76-5-407 State v. Martinez, 2002 UT 60 State v. Martinez, 2000 UT App 320 State v. Barela, 2015 UT 22
If more than one aggravating circumstance applies, the jury should also be given SVF 1613, Aggravated Sexual Abuse of a Child.
In regard to subpart 5.f., the committee considered the use of the word "victims" in light of State v. Vallejo, 2019 UT 38, ¶¶ 99-102, but chose to preserve the language set forth in the statute. Any attempt to alter the instruction in an effort to avoid the use of the word "victims" appears to impermissibly change the meaning of the statute.
See Committee Note
(DEFENDANT'S NAME) has been charged with (name of offense). The prosecution must prove beyond a reasonable doubt that [(VICTIM'S NAME)][(MINOR'S INITIALS)] did not consent to the alleged sexual conduct.
Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn at any time before or during sexual activity.
The alleged sexual conduct is without consent of [(VICTIM'S NAME)] [(MINOR'S INITIALS)] under any, all, or a combination of the following circumstances:
In deciding lack of consent, you are not limited to the circumstances listed above. You may also apply the common, ordinary meaning of consent to all of the facts and circumstances of this case.
You are instructed that any sexual penetration of the penis between the outer folds of the labia, however slight, is sufficient to constitute "sexual intercourse" for purposes of the offense of [Unlawful Sexual Activity with a Minor] [Unlawful Sexual Conduct with a 16 or 17 Year Old] [Rape].
For purposes of Rape of a Child, sexual intercourse can be accomplished by any touching, however slight.
Having found (DEFENDANT'S NAME) guilty of [Rape][Rape of a Child][Object Rape][Object Rape of a Child][Forcible Sodomy][Sodomy on a Child][Aggravated Sexual Abuse of a Child][Aggravated Sexual Assault] [as charged in Count ____], you must now determine whether at the time (DEFENDANT'S NAME) committed this offense, [he][she] had been previously convicted of a grievous sexual offense.
"Grievous sexual offense" means [rape][rape of a child][object rape][object rape of a child][forcible sodomy][sodomy on a child][aggravated sexual abuse of a child][aggravated sexual assault], or any attempt to commit the offense.
The State must prove beyond a reasonable doubt that the defendant was previously convicted of a grievous sexual offense. Your decision must be unanimous and should be reflected on the special verdict form.
Utah law does not state whether a determination that a prior conviction for an out-of-state offense is sufficiently similar to a Utah offense to prove a prior conviction is a question of law or fact. In either case, further jury instructions will be required.
However, at least one other jurisdiction has held that the determination is a legal one, and one that should be made by the trial court, not the jury. State v. Henderson, 689 S.E.2nd 462, 465 (N.C.App. 2009).
If you find the defendant guilty of [Rape][Rape of a Child][Object Rape][Object Rape of a Child] [Sodomy][Sodomy on a Child][Forcible Sexual Abuse][Aggravated Sexual Abuse of a Child] [as charged in Count ____], you then must determine whether the defendant, in the course of committing [Rape][Rape of a Child][Object Rape][Object Rape of a Child][Sodomy][Sodomy on a Child][Forcible Sexual Abuse][Aggravated Sexual Abuse of a Child], caused serious bodily injury to another.
"Serious bodily injury" means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.
The defendant _____________ (NAME), is charged [in Count _____] with Arson 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: 1. That the defendant _____________(NAME), 2. intentionally and unlawfully, 3. damaged property, 4. with fire or explosives, 5. in order to defraud an insurer. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
The defendant _________________ (NAME), is charged [in Count _____] with Arson 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: 1. That the defendant _____________(NAME), 2. intentionally and unlawfully, 3. damaged property belonging to another, 4. with fire or explosives. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
The defendant _________________ (NAME), is charged [in Count _____] with Aggravated Arson 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: 1. That the defendant _____________(NAME), 2. intentionally and unlawfully, 3. damaged with fire or explosives, 4. (a) a habitable structure, or (b) a structure that contains a person who is not a participant in the offense, or (c) a vehicle that contains a person who is not a participant in the offense. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
The defendant _________________ (NAME), is charged [in Count _____] with Reckless Burning 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: 1. That the defendant _____________(NAME), 2. recklessly, 3. started a fire or caused an explosion, 4. that endangered human life. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
The defendant _________________ (NAME), is charged [in Count _____] with Reckless Burning 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: 1. That the defendant _____________ (NAME), 2. started a fire, 3. knew that it was spreading and would endanger the life or property of another, and 4. (a) did not take reasonable measures to put out or control the fire, or (b) did not give a prompt alarm. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
The defendant _________________ (NAME), is charged [in Count _____] with Reckless Burning 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: 1. That the defendant _____________(NAME), 2. built or maintained a fire, and 3. did not take reasonable steps to remove all flammable materials surrounding the site as necessary to prevent the fire's spread or escape. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
The defendant _________________ (NAME), is charged [in Count _____] with Reckless Burning 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: 1. That the defendant _____________(NAME), 2. recklessly, 3. damaged the property of another, 4. with a fire or explosion. 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 one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.
Tabled for further review.
The word "utter" means any intentional act that puts a writing into circulation and implies, by word or action, that the writing is genuine.
The word "publish" or "publication" means any act by which the defendant shows or shares the writing with another person.
Every forgery offense must involve a writing. A "writing" includes printing by hand or machine, electronic storage or transmission, or any other method of recording valuable information. Examples of writings include checks, credit cards, stocks, identification documents, etc. In this case the item(s) alleged to have been forged (is) (are)[insert applicable writing].