PATTERN JURY INSTRUCTION COMMISSIONMarch 4-5, 2010
Heritage Center, Bismarck, ND
MEMBERS PRESENT: J. Anderson, B. Beehler, L. Boschee, A. Boucher, T. Kolb, J.
Lee, D. Lillehaug, P. Myerchin, J. Simonson, J. Webb
MEMBERS ABSENT: J. Hagerty, J. Narum
GENERAL BUSINESS
Chair P. Myerchin called the meeting to order. Rachel Thomason, law clerk for the
South Central Judicial District, assisted.
Minutes: Minutes of the October 1-2, 2009 meeting were reviewed.
Motion to approve: L. Boschee
Second: B. Beehler
Approved
Financial Report: The 2009-11 PJIC budget is $34,020 and the Commission has spent
$9,059.17 as of January 31, 2010. This amount is 26.6% of the budget with 29.2% of
the biennium having passed.
Motion to approve financial report: D. Lillehaug
Second: J. Anderson
Approved
Interim Activities
1. Minutes from the October meeting were prepared and posted.
2. Received notice from SBAND in late October that 2009 instructions were available in print and online.
INSTRUCTIONS
1. Matters of Common Knowledge and Science - J. Lee presented this instruction at the October meeting and proposed its deletion. The instruction was discussed and deleted in October.
2. Defrauding Secured Creditor (False Statement), K - 11.35 - J. Lee reviewed this instruction. The instruction and statute refer to property covered by a certificate of ownership, which no longer exists. As such, the instruction needs to be revised. J. Lee proposed a change to follow the current law.
Motion to accept proposed changes: J. Simonson
Second: B. Beehler
Language changes were suggested and discussion was held regarding the current statute and how best to express it in the instruction. Culpability was discussed again; this appears to be an on-going issue with the instructions. Statute says if no culpability level is stated, then the default culpability is willfully. The issue is whether the Commission should include the culpability level in instructions, when the Legislature did not specify one in the statute.
Amend motion to remove "knowingly" from the first paragraph: J. Simonson
Second: B. Beehler
Additional language changes were made for readability. Discussion was held regarding proposed element 4, which deals with an available defense. The Commission desires to use understandable language that closely mirrors the statute.
Call the question: J. Simonson
Further discussion was had regarding the removal of "knowingly" from the first paragraph. The desire is to not have conflicting culpability in the instruction ("willfully" appears in the third element), but the statute uses "knowingly." The Commission decided to use "knowingly" throughout the instruction, to be consistent with the statute.
Approved
3. Assisting Jurors at Impasse, K - 5.64 - J. Lee reviewed this instruction at the request of the practicing bar. He has reviewed State and Federal law and has no recommended changes for the Commission. The instruction will be moved to the agenda for the October meeting and J. Lee will take another look at it, with the assistance of NDRCt 6.9.
4. "Twitter" Instruction, New - J. Lee tackled drafting a new instruction for media and technology use by jurors. J. Hagerty and her clerk looked at the issue as well. Discussion was held regarding the need for an instruction to jurors that they are not to use any technology in deciding the case. NDRCt 10.1(d) requires all electronic devices to be turned off or muted in the courtroom.
Motion to approve J. Hagerty's proposed instruction: A. Boucher
Second: J. Lee
The proposed instruction has three parts.
Amended motion to remove "outline of the trial" portion: J. Simonson
Second: A. Boucher
Discussion was held regarding whether NDRCt 10.1(d) should be incorporated into the instruction.
J. Lee will look at this instruction again for the October meeting. He is going to work on an instruction that combines the standard admonitions, NDRCt 10.1, and the accepted technology instruction.
5. Fleeing or Attempting to Elude a Police Officer, K - 14.00 - J. Hagerty reviewed this instruction that had not been reviewed recently. This instruction follows NDCC 39-10-71, and there needs to be another instruction to follow NDCC 12.1-08-11.
Motion to approve as "reviewed, no changes": P. Myerchin
Second: J. Simonson
P. Myerchin volunteered to compose a new instruction to follow NDCC 12.1-08-11 for the Commission's October meeting.
Approved
6. Creation, Possession, or Dissemination of Sexually Expressive Images, New - J. Hagerty made some changes to the instruction that was presented in October. The language was made simpler and easier to understand. It was decided the origin of the law should be found to determine if there is another JIG.
Motion to table until the Oct meeting: A. Boucher
Second: B. Beehler
There need to be three different instructions, because the statute contains three separate crimes.
Approved
7. Companion instruction to C-55.12, addressing situations where a principal could be vicariously liable for the actions of a non-employee agent, New - Agent instructions were approved at the October meeting. L. Boschee worked on instructions covering potential areas of liability that are not currently addressed in the JIGS.
Employer of Independent Contractor's Vicarious Liability for Risk Intrinsic to Work - This proposed instruction addresses employer liability in those situations where an employer may be responsible for an independent contractor's acts. The courts would decide, as a matter of law, whether liability transfers to the employer. Based on this, L. Boschee believes there is no reason to have a jury instruction.
Employer of Independent Contractor's Vicarious Liability for Violation of Statute or Regulation - This is another exception where an employer could be liable for an independent contractor's actions. An employer could be liable for an independent contractor who violates a statute or regulation, but the only ND case to address this issue did not apply vicarious liability. L. Boschee does not believe an instruction is needed in this area.
Principal's Vicarious Liability Arising out of Apparent Agency - This situation arises when someone is injured by an individual the injured believes to be an agent of a principal. Two ND cases address this issue, but they do not address all the potential issues. L. Boschee does not recommend an instruction on this area.
L. Boschee recommends the deletion of C-55.12 as voted on in October 2009.
Discussion was held regarding 55.12 and necessary changes to make it an accurate statement of the law.
Motion to approve with changes: L. Boschee
Second: D. Lillehaug
Approved
Staff was instructed to make appropriate numbering changes to accommodate 55.12 as passed in October.
8. Testimony of Expert, C - 80.05 - J. Lee was assigned this instruction for October. D. Lillehaug, L. Boschee and J. Hagerty agreed to look at it as well. L. Boschee looked at instructions from other states, and found many different ways of treating it. Discussion was held regarding the impact of use of the term "expert." The desire remains to follow NDREv 702.
Motion to Review with no changes: J. Webb
Second: J. Simonson
There is concern that the instruction gives too much credit to the testimony by the judge. Concern was also expressed over the language used in the instruction.
Call of the question: J. Webb
Motion passes, 6-4
J. Simonson agreed to prepare an instruction regarding lay opinion for the October meeting.
9. Interrogatories, C - 80.12 - T. Kolb reviewed this instruction from 1986. She recommended minor languages changes. She also recommended removal of the citation to CA JIGS. The Commission decided to adopt the wording of the NM instruction.
Motion to adopt with changes: D. Lillehaug
Second: J. Webb
Motion amended to remove the note referencing C-80.02: D. Lillehaug
Second: J. Webb
Call the question: J. Lee
Approved
10. Duty to Accept Law From Court, New - J. Webb drafted this instruction based on a request from a practicing judge. There is a civil instruction (C-85.10), but not a criminal instruction. J. Webb proposed a criminal instruction with identical language to the civil instruction. The proposed numbering is such that the criminal instruction will appear in the same location as the civil instruction.
Motion to adopt proposed instruction: J. Simonson
Second: J. Lee
Call the question: J. Lee
Approved
11. Human Trafficking, New - J. Hagerty prepared this new instruction based on a new statute. The Legislature acknowledged human trafficking is not yet a problem in ND, but it is a problem as close as Minneapolis and Chicago, so passed a law based on the Federal law during the 2009 Session. The Commission worked on the language of the proposed instruction to comply with the statute.
Motion to adopt: J. Webb
Second: B. Beehler
Approved