PATTERN JURY INSTRUCTION COMMISSION
June 16, 2006
Ramada Plaza Suites, Fargo, ND
MEMBERS PRESENT: J. Anderson, B. Beehler, L. Boschee, A. Boucher, J. Greenwood, J. Hagerty, R. McLean, J. Simonson, J. Webb
MEMBERS ABSENT: J. Haskell, S. Plambeck, T. Purdon
Chair Brad Beehler called the meeting to order.
Membership: Attorney S. Plambeck's three terms on the Commission have expired so there will be one new appointment to the Commission beginning with the 2006-07 year. The staff attorney will confirm reappointments for members whose terms expire June 2006 but are eligible for reappointment: Attorney Ron McLean, Judge Simonson, and Judge Webb.
Minutes: Minutes of the March 2006 meeting were reviewed.
Motion to approve: J. Hagerty
Second: J. Simonson
Financial Report: The 2005-07 PJIC budget is $27,314. Through April 30, 2006 or 42% of the biennium, the Commission spent $10,743 or 39% of the budgeted amount.
Motion to approve financial report: J. Simonson
Second: J. Anderson
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. Several corrections to the online pattern jury instructions were reported and completed.
4. Comments regarding the self-defense element which was added to the homicide instructions were received from attorney F. Fremgen.
5. Bill Neumann, Executive Director of SBAND, suggested that the Commission might want to consider the possibility of finalizing the instructions twice a year instead of annually. Initially the online instructions would be updated with the paper and disc updates completed annually. If staff time permitted, and record-keeping issues were resolved, eventually the paper and disc copies could also be updated twice yearly. Following discussion, the consensus of the Commission was that the once yearly publication allowed more adequate time for feedback and review before publication and having the online instructions differ from the published copy could be confusing.
The civil and criminal instructions scheduled for publication in 2006 were reviewed.
A third element, "[T]he Defendant did not act in self-defense," was added to the homicide instructions (K - 6.01, 6.02, 6.03, 6.15, 6.20, and 6.30). J. Webb indicated that he was not able to attend the March meeting when these were approved. He would approve the instruction but does not think that there should be a separate element for self-defense and would have dissented to including the State's burden of proof on self-defense as a third element. J. Hagerty noted that State v. Olander identifies it as an element. J. Webb remarked that it can be used as an instruction or it could be included with the general self-defense instructions. That the Defendant did not act in self-defense must be proved by the State but only if there is a sufficient showing by the evidence. It is only used if needed. J. Anderson concurred. However, Olander used the word "element," and it was considered prudent to leave the item as an element in with the brackets and note. The note was revised to read "[if] there is evidence supporting a claim of self-defense, use bracketed element number three," that is, it was stated in the positive rather than negative.
Motion to approve amended note: R. McLean
Second: L. Boschee
It is usually clear prior to giving the instructions if the defense of self-defense is going to be raised. It would be relevant in assault cases also.
The notes in C - 16.00, 16.05, and 16.10 referred the user to C - 16.11. C - 16.11 was tabled for further discussion so that specific reference was deleted.
Motion to approve 2006 drafts with amendments for publication: J. Hagerty
Second: J. Webb
Staff Attorney Position
L. Kerbeshian indicated that she will be resigning following the 2006-07 year. A job announcement will be posted on the Supreme Court website, in the Gavel, and at the law school. S. Holewa will be notified of the pending change. L. Boschee, A. Boucher, and J. Hagerty will form a subcommittee with J. Hagerty serving as chair. They will propose a candidate at the October meeting. If approved, the new staff person could attend the March meeting for experience.
Motion to approve the search committee: R. McLean
Second: J. Simonson
The October meeting will be October 5th (Thursday afternoon) and 6th (Friday morning), 2006.
1. False Imprisonment Unlawfulness of Arrest, New (A. Boucher)
2. Waterways, C - 10.00, 10.40, and 10.50 (J. Greenwood)
3. Gross Sexual Imposition (J. Greenwood)
4. Liability for Snow and Ice, all political subdivisions and the State except for municipalities, New (A. Boucher and T. Purdon)
5. Eminent Domain section, C - 75.00 excluding C - 75.01 and C - 75.04 (B. Beehler)
6. Criminal Closing Instructions, K - 5.00 (J. Haskell)
7. Bailment, C - 52.00, 52.05. and 52.08 (J. Hagerty)
8. Presumption of Innocence and Burden of Proof, K - 1.05 (T. Purdon)
9. Strict Products Liability review, C - 21.00 21.40 (L. Boschee)
10. Legal Entities, C - 55.12, 55.14, and 55.50; Partnership (duties of corporate officers and directors) (R. McLean)
11. 1986 Presumptions, C - 80.60, 80.62, 80.64, and 80.66 (A. Boucher)
12. Other Personal Crimes, 1985-86 K - 8.00 (J. Anderson))
13. 1986 Criminal Introductory Instructions - Special Situations, K - 2.00 (J. Simonson)
14. Negligent Infliction of Emotional Distress (Muchow type), New (R. McLean)
Motion to adjourn: J. Simonson
Second: J. Webb
Lynn A. Kerbeshian
2575 So. 35th St.
Grand Forks, ND 58201