PATTERN JURY INSTRUCTION COMMISSION
October 6-7, 2011
1:00 p.m.
Bismarck, ND
MEMBERS PRESENT: J. Anderson, J. Feland, J. Geiger, T. Kolb, J. Lee, D. Lillehaug, J. Vendsel, J. Webb, P. Zuger
MEMBERS ABSENT: M. Armstrong, P. Myerchin, J. Narum
GENERAL BUSINESS
Chair Tracy Kolb called the meeting to order. Justin Hughes, law clerk for the South Central Judicial District, assisted.
Election of Vice-Chair: The vice-chair this year will be a judge. Service is until June 30, 2012 when the vice-chair assumes the position of chair.
Motion to nominate J. Lee: D Lillehaug
Second: J. Webb
Motion to close nominations and cast unanimous vote for J. Lee: J. Geiger
Second: J. Anderson
Approved
Membership: J. Hagerty completed her service on the Commission in June and was not eligible to serve another term. Judicial Conference met in June and appointed J. Feland to fill the position. J. Narum was reappointed to a second term.
Motion to approve: D. Lillehaug
Second: J. Feland
Approved
Financial Report: The 2011-13 PJIC budget is $56,020.00, and the Commission has spent $2,060.00 as of August 31, 2011. This amount is 3.68% of the budget with 8.3% of the biennium having passed.
Motion to approve the financial report: J. Anderson
Second: J. Webb
Approved
Interim Activities
1. Minutes from the June 2011 meeting were prepared and submitted for posting.
2. 2011 jury instruction changes and updates were sent to SBAND for publication. SBAND has been contacted regarding the status of the instructions. Instructions are expected to be available for purchase shortly. It is unknown how soon they will be available on the internet. Staff will be working with SBAND to streamline and expedite the publication process in the future.
3. Notice was received from Judicial Conference that J. Feland of Bismarck was appointed to fill the position held by J. Hagerty, who served three terms and was not eligible for reappointment. J. Narum was appointed to serve a second term.
4. Updated membership rosters were sent to SBAND and the Court Administrator's office.
INSTRUCTIONS
a. NDCC 12.1-06.2, Criminal Street Gangs (chapter) - J. Webb reviewed this chapter to determine if an instruction or series of instructions was needed. No pattern instruction has ever been created and the statute has rarely been charged. Discussion was held whether an instruction is needed for something that possibly may not be used. The general consensus was that no harm can come from having the instruction available.
The short chapter has 4 subsections and jury instructions are appropriate for two. A proposed instruction was introduced and discussed to coordinate with NDCC 12.1-06.2-02. The commission discussed whether to include the culpability of "willful" in the instruction and the best organization structure for the elements.
Motion to approve as currently written: J. Webb
Second: J. Feland
Motion failed
Further discussion was held regarding inclusion of the culpability level "willful."
Motion to approve as revised: J. Geiger
Second: D. Lillehaug
Approved
J. Webb drafted a proposed instruction to accompany NDCC 12.0-06.2-03. The statute states "knowingly or willfully," and discussion was held whether to include the language in the instruction or keep it out to avoid confusing the jury.
Motion to approve as presented: J. Geiger
Second: J. Lee
Approved, 6-3 (J. Anderson, J. Feland and P. Zuger, dissenting)
b. NDCC 12.1-07, Treason - Flag Desecration (chapter) - T. Kolb reviewed this chapter that currently does not have any instructions. T. Kolb feels instructions are not needed in this area because the statutes are 40 years old and appear to have never been tried. The Commission agreed that resources would be better used for other work.
Motion to not create instructions for this chapter: J. Webb
Second: J. Anderson
Approved
c. NDCC 12.1-11-01, Perjury - No instruction currently exists for perjury, so J. Lee drafted a proposed instruction. Discussion was held whether to include the element requiring the statement to be "material." Federal precedent was looked to and the commission discussed how state law does not appear to follow federal precedent (NDCC 12.1-11-04(1) states "material" is a question of law, but federal case law says it is a question of fact under the Constitution). It was decided to refer to the US Supreme Court opinion that directly addresses this issue and determined it is unconstitutional to determine materiality as a question of law.
Motion to approve: J. Webb
Second: J. Feland
Approved
d. K-15.20, False Statement - J. Lee reviewed this instruction while he was drafting the perjury instruction. The statute provides for 2 ways to commit the offense, and the existing instruction only covered one. J. Lee prepared a new instruction covering the other method of committing the offense.
Motion to approve new instruction: J. Feland
Second: D. Lillehaug
Approved
The third element of K-15.20 was amended to be consistent with the new instruction and reflect the actual language of the statute.
Motion to approve: J. Webb
Second: J. Anderson
Approved
e. NDCC 12.1-11-05, Tampering with Public Records - J. Lee reviewed this statute that did not previously have a pattern instruction. He drafted an instruction following the language of the statute.
Motion to approve: J. Feland
Second: J. Vendsel
Approved
f. NDCC 12.1-11-06, Public Servant Refusing to Perform Duty - J. Lee reviewed this statute that did not previously have a pattern instruction. He drafted an instruction following the language of the statute.
Motion to not adopt the proposed instruction: J. Geiger
Second: J. Vendsel
Call the question - J. Webb
Approved 7-2
g. NDCC 12.1-11-07, Fraudulent Practice in Urine Testing - J. Lee proposed an instruction to follow this statute. The group feels instructions are needed because this is charged in the larger cities. Two instructions will be created, one for using the device and one for possessing or distributing the device.
Motion to approve the first instruction: J. Webb
Second: J. Feland
Approved
The second instruction applies to the person who possess or distributes the device.
Motion to approve the second instruction: J. Webb
Second: D. Lillehaug
Approved
h. NDCC 12.1-13, Confidential Information - Conflict of Interest - Impersonation (chapter) - J. Anderson reviewed this chapter which currently does not have instructions. He drafted proposed instructions for the commission to review. The first proposed instruction is Disclosure of Confidential Information Provided to Government (NDCC 12.1-13-01).
Motion to approve: J. Lee
Second: J. Feland
Approved
The second proposed instruction is Speculating or Wagering on Official Action or Information (NDCC 12.1-13-02(1)). Language was tweaked to follow the statute.
Motion to approve: J. Lee
Second: J. Feland
Approved
The third proposed instruction is Speculating or Wagering on Official Action or Information (Personal Benefit) (NDCC 12.1-13-02(2). Language was edited for ease of use and to mirror the statute.
Motion to approve: J. Feland
Second: J. Geiger
Approved
The fourth instruction is Conflict of Interest (NDCC 12.1-13-03). Discussion was held regarding use of "voluntary" in the statute. "Voluntary" is not statutorily defined, and the Commission was not comfortable with providing an instruction where the definition and culpability level could not be stated.
Motion to not create an instruction at this time because "voluntary" is not statutorily defined: J. Lee
Second: J. Geiger
Approved
The fifth proposed instruction is Impersonating Officials (NDCC 12.1-13-04). A note was added to reference subsection (2) of the statute.
Motion to approve: J. Feland
Second: D. Lillehaug
Approved
i. NDCC 12.1-15, Defamation - Interception of Communications (chapter) - J. Geiger reviewed the criminal defamation chapter which currently does not have instructions. He did not recommend creation of an instruction for Criminal Defamation, NDCC 12.1-15-01, because it is rarely charged and most people who feel they have been wronged use the civil remedy.
Motion to not adopt an instruction: J. Anderson
Second: D. Lillehaug
Approved
J. Geiger drafted three instructions for NDCC 12.1-15-02, Interception of Wire or Oral Communications - Eavesdropping. Interception of Wire or Oral Communications - NDCC 12.1-15-02(1)(a). Language was edited to mirror the statute.
Motion to approve: J. Anderson
Second: J. Feland
Approved
The next instruction mirrors NDCC 12.1-15-02(1)(b), Disclosure or Use of Wire or Oral Communications.
Motion to approve: J. Anderson
Second: J. Feland
Approved
The third instruction for this section covers Eavesdropping, NDCC 12.1-15-02(2). Discussion was held how Eavesdropping is never charged and the Commission feels any instruction created would never be used.
Motion to not adopt an instruction: J. Anderson
Second: J. Feland
Approved
The next instruction was proposed for NDCC 12.1-15-03, Traffic in Intercepting Devices. Culpability level was discussed. An instruction was drafted to mirror NDCC 12.1-15-03(1). "Surreptitious" was changed to "secret" to increase juror understanding.
Motion to approve: J. Feland
Second: J. Anderson
Approved
NDCC 12.1-15-03(2) addresses advertising intercepting devices. An instruction was proposed, Advertising in Intercepting Devices. Language was edited to mirror the statute and brackets were added for ease of use. A note was added referencing defenses available in the statute.
Motion to adopt and add defenses note to previous instruction: J. Anderson
Second: D. Lillehaug
Approved
The final proposed instruction comes from NDCC 12.1-15-05, Interception of Correspondence. Language was edited to mirror the statute and brackets were added for ease of use.
Motion to approve: J. Feland
Second: J. Anderson
Approved
j. Liability of Agricultural Employers who are not required to carry worker's comp - D. Lillehaug was presented this issue by a member of the practicing bar. Production agricultural employers are not required to obtain worker's compensation insurance, so if an employee is injured, the production employer faces liability. The commission discussed whether an instruction is needed and what such an instruction would entail. D. Lillehaug agreed to look further into the issue before the March meeting.
k. Motion to authorize Staff to work with SBAND to streamline JIG publication process: J. Lee
Second: J. Anderson
Approved
Assignments for March
a. NDCC 12.1-17.1, Offenses Against Unborn Children (chapter) - P. Myerchin
b. Proposed new instruction for felon in possession of firearm - P. Myerchin
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 12.1-16, Homicide (most of chapter) - D. Lillehaug
g. Employer Liability of Production Agriculture Employers - D. Lillehaug
h. Review of 2011 criminal legislation - J. Feland
i. Failure to Register as a Sex Offender - J. Feland
Motion to Adjourn: J. Anderson
Second: P. Zuger
Approved
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529-9617
(701) 522-3360