PATTERN JURY INSTRUCTION COMMISSION
March 3, 2011
12:45 p.m.
Heritage Center, Bismarck, ND
MEMBERS PRESENT: J. Anderson, M. Armstrong, L. Boschee, A. Boucher, J. Hagerty, D. Lillehaug, P. Myerchin,
MEMBERS ABSENT: J. Geiger, T. Kolb, J. Lee, J. Narum, J. Webb
GENERAL BUSINESS
Chair Judge Anderson called the meeting to order. Neil Roesler, law clerk for Justice Dale Sandstrom, assisted.
Minutes: Minutes of the November 2010 meeting were reviewed.
Motion to approve: J. Hagerty
Second: A. Boucher
Approved
Financial Report: The PJIC budget for the 2009-11 biennium is $56,020.00. Expenses as of January 31, 2011, were $21,276.06. This amount is 37.98% of the budget, with 79.17% of the biennium having passed.
Motion to approve: M. Armstrong
Second: D. Lillehaug
Approved
Interim Activities
1. Minutes and drafts from the November 2010 meeting were prepared and posted.
2. Notice was received that the 2010 instructions are now available on the SBAND web site.
3. Notice was received from Judicial Conference that Judge Geiger of Grafton was appointed to complete J. Simonson's term, which runs through June 31, 2012.
4. E-mail regarding "Twitter" instruction was received and forwarded to Chair J. Anderson. Copies were made for discussion at this meeting.
5. A national "social media" webinar was made available to the Commission members.
6. SBAND was contacted regarding L. Boschee and A. Boucher's positions, which will be open as of June 30, 2011. Both are completing their third terms and are not eligible for reappointment.
Instructions
a. Creation, Possession, or Dissemination of Sexually Expressive Images, New - J. Hagerty reviewed the statute and drafted 2 instructions, one for the Class A misdemeanor and one for the Class B misdemeanor. The first instruction covers subsection 1 of the statute and the second instruction addresses subsection 2.
Motion to approve the first instruction: J. Hagerty
Second: P. Myerchin
This statute was discussed in the past. The instruction was first presented in 2010 and is now being readdressed. The culpability level of "knowing" was added as an element. The statute includes an exception to which it does not apply, and this was mentioned in a note at the end of the instruction. Users will have to look at the statute to determine whether the exception applies in a particular case.
Motion to approve first instruction as revised: D. Lillehaug
Second: A. Boucher
"Knowing" and the bracketed language from element 4 were added to the text of the instruction.
Approved
Discussion was held on the second instruction. The note was changed to be consistent with the first instruction. The language of the statute is "individual" for the Class A misdemeanor but the broader term "subject" is used for the Class B misdemeanor. It was decided to use "person." The second instruction was changed to mirror the language of the first instruction.
Motion to approve second instruction: J. Hagerty
Second: L. Boschee
Approved
b. Lay Opinion Testimony, New - The Commission decided to draft these instructions after working on the Expert instructions. L. Boschee drafted civil and criminal instructions. He reviewed NDREv 701, the instructions for expert testimony, and lay opinion testimony from other jurisdictions. "Upon" was replaced with "on." There was some concern about including language in the instruction that does not appear anywhere in ND case law or the Rules of Evidence. The word "should" was changed to "may" for considering the weight to give the lay testimony. The Commission reviewed the instructions for expert opinions and land owner opinions to determine the best way to draft this instruction. General directions are already provided in C-80.01, Weight and Credibility. The proposed instruction was based in part on Cal. Jury Instr. - Crim. 2.81. A final sentence was added to aid jurors in determining how to treat the testimony.
The Rule talks about "opinion or inference," and the Commission discussed whether to include that language in the instruction. It was decided to include [or inference] as optional language.
Motion to approve: L. Boschee
Second: G. Hagerty
Approved
Motion for the criminal instruction to mirror the civil instruction just approved: L. Boschee
Second: D. Lillehaug
Approved
c. Duties of Jurors and Conduct - discuss feedback received after Nov meeting. J. Christofferson responded to the November draft and suggested more language be used regarding the non-use of electronic tools. The Commission expressed concern over using too much language and confusing the listener. It was agreed to add a "why" clause, explaining why it is so important for jurors to refrain from using electronic tools. Language was borrowed from the model instruction for federal courts, 0.01, Instructions Before Voir Dire. The Commission decided not to include a list of specific electronic tools because technology is changing so quickly the list would be constantly changing.
Motion to approve as modified: P. Myerchin
Second: A. Boucher
Approved
d. Review of Criminal Statutes for which there is not currently an instruction - statutes to be reviewed to determine if JIGS are needed
1) NDCC 12.1-02-03, Mistake of Fact in Affirmative Defense - L. Boschee reviewed this statutes for which an instruction does not currently exist. He decided an instruction is not necessary because this statute only applies to a criminal defendant who may be mistaken about the facts of an affirmative defense.
2) NDCC 12.1-17-09, Killing or injury of law enforcement support animal - Definition - Penalty - J. Hagerty reviewed this statute for which an instruction did not previously exist. She drafted an instruction based on the language of the statute.
Motion to approve: A. Boucher
Second: M. Armstrong
Approved
The statute also talks about interference with a law enforcement support animal, so a separate instruction was drafted.
Motion to Approve: A. Boucher
Second: P. Myerchin
Approved
3) NDCC 12.1-08-10, Harboring a Runaway Minor - Penalty - A. Boucher drafted a new instruction to follow this statute. The statute includes an exception for a person who provides "temporary sanctuary," and this was included in the instruction as optional language for a defense.
Motion to approve: A. Boucher
Second: L. Boschee
Approved
4) NDCC 12.1-14-05, Preventing exercise of civil rights - Hindering or preventing another aiding third person to exercise civil rights - A. Boucher reviewed this statute, an instruction actually does exist, K-16.15. It remains unchanged since 1985, and since the law has not changed and there is no case law, nothing will be done at this time.
5) NDCC 12.1-06.1, Racketeer Influenced and Corrupt Organizations (chapter) - D. Lillehaug reviewed this chapter and determined instructions are needed because it is the RICO chapter. It also contains a civil component. Discussion was held regarding whether pattern instructions are needed based on the time put into drafting and the difference between each case. The Commission may return to this issue in the future, but at present it was determined there is not a need.
6) NDCC 12.1-05-07.1, Use of Deadly Force - Presumption of Fear of Death or Serious Bodily Injury - M. Armstrong drafted a new instruction to follow this 2009 statute. There may be circumstances where the court could make findings and the statute would not apply. M. Armstrong proposed referring to those generally in a note rather than in the language of the instruction.
The Commission discussed where the language should appear and whether the language would ever be given to jurors. The decision was made to leave it in the instruction but include a note referring to the language in the statute and stating the Commission will not make an assumption of who the statute means by "the court." This instruction is simply mirroring the language of the statute and not reflecting any legal authority.
Motion to approve: M. Armstrong
Second: P. Myerchin
Approved
M. Armstrong also proposed adding language to K-3.55 to conform to a 2007 statutory change.
Motion to add language to K-3.55 to mirror revised statute: J. Hagerty
Second: D. Lillehaug
Approved
7) NDCC 12.1-05-07.2, Immunity from Civil Liability - M. Armstrong looked at this statute and drafted a proposed instruction although he does not think it is necessary because a jury would not generally decide immunity. A jury may need to determine an underlying fact regarding immunity, but immunity itself is a question of law for the court to decide. He also recommended reviewing C-12.05 and will present his proposed changes at the October meeting. The Commission agreed the Immunity from Civil Liability statute does not require an instruction.
8) NDCC 12.1-09-02, Tampering with Informants in Criminal Investigations - P. Myerchin proposed an instruction for this statute. K-15.00 addresses the first statute of the chapter, but the rest of the chapter is without instructions. The language of the statute was followed when drafting this instruction.
Motion to approve: L. Boschee
Second: A. Boucher
Approved
9) NDCC 12.1-09-03, Tampering with Physical Evidence - P. Myerchin proposed an instruction for this statute. "Verity" was changed to "truth" or "true form" to improve juror understanding.
Motion to approve: A. Boucher
Second: M. Armstrong
Approved
10) NDCC 12.1-09-04, Harassment of and Communication with Jurors - P. Myerchin drafted two instructions based on this statute, one for persons currently serving on a jury and one for former jurors.
Motion to approve both: J. Hagerty
Second: L. Boschee
Approved
11) NDCC 12.1-09-05, Eavesdropping on Jury Deliberations - P. Myerchin drafted an instruction to accompany this statute.
Motion to approve: J. Hagerty
Second: D. Lillehaug
Approved
6. New Business
a. Time and location of June meeting (SBAND meeting is June 14-17 in Fargo). The June meeting will be held on Tuesday, June 14, starting at 6:00 pm at WF Maxwells in West Fargo.
b. Discussion of instruction publication process - instructions have historically been published the end of September. The Commission wants instructions sent to SBAND by 30 days after June meeting. This change will be discussed with SBAND and implemented in summer 2011.
c. Renewal of Staff contract - Staff services are contracted for 2 years, and the contract is up for renewal this year. Staff was asked to leave the room while the Commission discussed the contract.
Motion to renew contract for 2 years: A. Boucher
Second: M. Armstrong
Carried unanimously
Assignments for October 2011
a. NDCC 12.1-06.2, Criminal Street Gangs (chapter) - J. Webb
b. NDCC 12.1-07, Treason - Flag Desecration (chapter) - T. Kolb
c. NDCC 12.1-10, Contempt (chapter) - J. Narum
d. K-3.34, 3.40, 3.80 - M. Armstrong
e. C - 12.05 - M. Armstrong
f. NDCC 12.1-11-01, Perjury - J. Lee
g. NDCC 12.1-11-05, Tampering with Public Records - J. Lee
h. NDCC 12.1-11-06, Public Servant Refusing to Perform Duty - J. Lee
i. NDCC 12.1-11-07, Fraudulent Practice in Urine Testing - J. Lee
j. NDCC 12.1-13, Confidential Information - Conflict of Interest - Impersonation (chapter) - J. Anderson
k. Proposed new instruction for felon in possession of firearm - P. Myerchin
l. In addition, staff will assign a new round of criminal statutes to review for potential instructions.
Next meeting will be June 14, 2011 at WF Maxwells in West Fargo. The meeting will begin at 6:00 pm.
Motion to Adjourn: L. Boschee
Second: A. Boucher
Approved
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529-9617
(701) 522-3360