PATTERN JURY INSTRUCTION COMMISSION
June 14, 2005
MEMBERS PRESENT: J. Anderson, B. Beehler, L. Boschee, A. Boucher, J. Greenwood, J.Hagerty, J. Haskell, S. Plambeck, T. Purdon, J. Webb
MEMBERS ABSENT: R. McLean, J. Simonson
Chair Judge Hagerty called the meeting to order. Computer and clerical assistance was provided by Zachary Pelham, law clerk for the South Central Judicial District.
Guest: William Neumann, Executive Director of SBAND, attended the meeting to discuss publication of the jury instructions. Comments had previously been received concerning technical difficulties and the length of time elapsing before online entry. In the last few months, some technical problems have been corrected, e.g., searching for instructions with numbers ending in double zeros. W. Neumann commented that SBAND will make an effort to enter the instructions expeditiously. J. Hagerty noted that it is difficult to cut and paste the instructions from the website, and he will check on this. SBAND has traditionally published the instructions and would like to continue with responsibility for this service. Instructions have always been published on a yearly basis probably due to the expense of hard copy preparation. With online access, whether it would be possible to publish more frequently was discussed. This would ease the task of online entry and provide up-to-date accessibility. With time allowed for commenting and reviewing drafts, it should be possible to have multiple publications yearly.
Minutes: Minutes of the March 2005 meeting were reviewed.
Motion to approve: J. Haskell
Second: Tim Purdon
Financial Report: The 2003-05 PJIC budget is $26,474. Through April 30, 2005 or 92% of the biennium, the Commission spent $22,011 or 83% of the budgeted amount. J. Hagerty reported that the staff attorney will receive a 4% salary raise for the 2005-07 biennium.
1. Drafts of instructions and minutes of the March meeting were posted. State Court Administration was thanked for meeting preparation.
2. The annual report was submitted.
3. A survey from the Texas State Bar was completed. The Texas Bar has created a task force to review committee processes and is particularly interested in studying the practices of other jurisdictions in preparing jury instructions. A request was made for a copy of results.
Whether action should be taken to revive the study of jury instructions started by Professor Ahlen several years ago was discussed. That this project would require the assistance of specialized expertise and coordination with the law school was determined. The staff attorney will write the law school and indicate that the Commission would be willing to assist research in this area.
1. The civil and criminal instructions scheduled for publication in 2005 were reviewed. References were added to Loss of Consortium. A. Boucher noted that Loss of Child's Companionship should have been deleted previously so this will be done this year.
Motion to approve the 2005 civil and criminal instructions: A. Boucher
Second: J. Haskell
2. How do bifurcated trials affect exemplary damages? J. Greenwood considered this incidental question raised during the discussion of exemplary damages last June. Attorneys have drafted an instruction for the situation but none reported the instruction being used. The instruction may need to be fact-specific. It was decided to wait and see if the situation arises, to review the instruction used, and subsequently to consider whether a pattern instruction is needed or helpful.
3. J. Greenwood reported on State vs. Reyes, a Minnesota Court of Appeals case in which a conviction of selling controlled substances was reversed because the district court erred by failing to include an instruction stating the presumption of innocence and defining proof beyond a reasonable doubt in its final instructions to the jury. J. Greenwood noted that North Dakota Supreme Court Rule 30 states that after the jury is sworn, the court may instruction the jury concerning duties, conduct, and legal principles. It requires the court to instruct the jury immediately before or after the arguments of counsel. The judges present indicated different preferences for when the jury is instructed. S. Plambeck informed the Commission that Minnesota does not give the jurors written instructions for referral and that may be why the instructions are required to be repeated.
4. A recent North Dakota case, State v. Keller, analyzes the law on lesser-included offenses. The case will be added as a cite to K - 2.30, Included Offense. The rule in homicide differs, however, as the lesser included instruction must be given if self-defense is pleaded. T. Purdon will review the homicide section for the October meeting.
5. A new instruction, Instigation of False Imprisonment, was presented by Zachary Pelham, J. Hagerty's law clerk. The instruction is based on the Wishnatsky v. Berquist case, and the question previously discussed was whether "knowingly" should be included. Z. Pelham reported that "knowingly" is not used in Wishnatsky but is in all the cased it relies upon. This is an intentional tort so "knowingly" is appropriate.
Motion to approve: A. Boucher
Second: B. Beehler
An unlawful arrest is not defined, and S. Plambeck will prepare an instruction concerning what makes an arrest unlawful for October.
6. L. Boschee presented a new instruction, Negligent Infliction of Emotional Distress for Plaintiff's Own Safety. Negligent Infliction of Emotional Distress for the Safety of Another which was approved for publication in 2005 is a refinement of this tort, and both torts are similar. Muchow v. Lindblad and Restatements (Second) Law of Torts was reviewed. Invasion of the Plaintiff's own interest may be physical and the situation that frightens or shocks resulting in physical harm. There is no ND caselaw on the second, and RS § 436(1) was cited in a note. Whether there can be reasonable risks of physical injury was discussed. RS § 436 (15) was reviewed. What are the boundaries of this claim? There must be physical harm following the fright or shock, a physical manifestation of emotional distress. An example is the situation in post traumatic stress cases.
Motion to approve: T. Purdon
Second: J. Webb
Approved (S. Plambeck, A. Boucher, J. Anderson dissenting)
L. Boschee reviewed Intentional Infliction of Emotional Distress, C - 20.00 through 20.50 and concluded that no changes are necessary.
The October meeting is scheduled for October 6th, beginning at 1 p.m., and October 7th, beginning at 9 a.m.
Lynn A. Kerbeshian