JURY INSTRUCTION DRAFTS - March 2011
If you have questions or comments, please contact please contact Jennifer M. Hauge at cjhauge@dishmail.net.
2011 NDJI-CIVIL C - New
Duties of Jurors and Conduct
Performance of your duty as a juror is vital to our system of justice. Perform your duty without any fear, favor, or passion, and base your verdict on the evidence. I will give you the applicable law.
You must decide this case based solely on the evidence presented in this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, or the individuals or entities involved. You must not consult dictionaries or other reference materials, search the internet, or use any electronic device to obtain information about this case. Do not obtain information from any source outside the courtroom or visit the scene of any events discussed during trial.
During this trial, you must not talk to anyone, including your family and friends, about the case. You must not communicate with anyone about the case on your cell phone or other wireless devices, through e-mail, text messaging, or any social networking medium, including [list social networking sites]. While you deliberate you will not be allowed to possess any wireless communication device.
The parties have a right to have this case decided only on evidence they know about and that has been presented here in court. If you communicate about the case or do some research, investigation, or experiment that we do not know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and the right to cross-examination. That would not be fair to the parties.
Until you deliberate, please do not discuss the case with anyone or remain within hearing of anyone who is discussing it outside the courtroom.
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NDRCt 10.1(d)
NOTE: Judges may wish to consider adding the following language to their admonitions to jurors: "Do not use the internet or other electronic technology in an attempt to learn information about this case, or communicate with your family, friends, or anyone else about this case."
2011 NDJI-CIVIL C - 80.04
Lay Opinion
[(A witness)(Witnesses)] [who (was)(were) not testifying as (an expert)(experts)] gave testimony in the form of an opinion [or inference] based on having perceived a matter. In deciding the weight and credibility, if any, to be given a witness's opinion [or inference] based on having perceived a matter, you may consider the witness's opportunity to have perceived the matter, the witness's reasons for the opinion [or inference], and all other evidence related to the issue.
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ND R Evid 701
NOTE: The court should not give this instruction for run-of-the-mill lay opinion testimony, like "she looked angry" or "he was driving fast." The court should give this instruction when the lay opinion is more like expert opinion. Use the bracketed phrase about the witness not testifying as an expert if an expert witness has also testified.
2011 NDJI-CRIMINAL K - NEW
Unlawful Creation of Sexually Expressive Image
A person who, knowing of its character and content, and without written consent of an individual depicted in an image, [secretly created or willfully possessed a secretly created sexually expressive image] [distributed or published, electronically or otherwise, a sexually expressive image with intent to cause emotional harm or humiliation to an individual depicted in the sexually expressive image] [distributed or published, electronically or otherwise, a sexually expressive image, after having been given notice by an individual or parent or guardian of the individual who is depicted in a sexually expressive image that the individual, parent, or guardian does not consent to the distribution or publication] is guilty of unlawful creation or possession of a sexually expressive image.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Knowing of its character and content;
4) [Secretly created or willfully possessed a secretly created sexually expressive image] [Distributed or published, electronically or otherwise, a sexually expressive image with intent to cause emotional harm or humiliation to an individual depicted in the sexually expressive image] [Distributed or published, electronically or otherwise, a sexually expressive image, after having been given notice by an individual or parent or guardian of the individual who is depicted in a sexually expressive image that the individual, parent, or guardian does not consent to the distribution or publication].
DEFINITIONS
Sexually expressive image means a photograph or visual representation that exhibits a nude or partially denuded human figure, or sexual conduct.
Nude or partially denuded human figure means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernibly turgid state even if completely and opaquely covered.
[Insert relevant definitions. NDCC 12.1 02 02.]
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NDCC 12.1-27.1-03.3(1)
Note: Section 12.1-27.1-03.3 of the North Dakota Century Code does not authorize any act prohibited by any other law. Under subsection (4), materials sold in the normal course of business or used for law enforcement, medical, or other purposes are exempt from the provisions of the statute.
2011 NDJI-CRIMINAL K - NEW
Unlawful Acquisition and Distribution of Sexually Expressive Image
A person who, knowing of its character and content, acquires and knowingly distributes any sexually expressive image created without the knowledge and consent of the person depicted, is guilty of unlawful acquisition and distribution of a sexually expressive image.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Knowing of its character and content;
4) Acquired and knowingly distributed a sexually expressive image which was created without the consent of the person depicted.
DEFINITIONS
Sexually expressive image means a photograph or visual representation that exhibits a nude or partially denuded human figure, or sexual conduct.
Nude or partially denuded human figure means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernibly turgid state even if completely and opaquely covered.
[Insert relevant definitions. NDCC 12.1 02 02.]
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NDCC 12.1-27.1-03.3(2)
Note: Section 12.1-27.1-03.3 of the North Dakota Century Code does not authorize any act prohibited by any other law. Under subsection (4), materials sold in the normal course of business or used for law enforcement, medical, or other purposes are exempt from the provisions of the statute.
2011 NDJI-CRIMINAL K - NEW
Lay Opinion
[(A witness)(Witnesses)] [who (was)(were) not testifying as (an expert)(experts)] gave testimony in the form of an opinion [or inference] based on having perceived a matter. In deciding the weight and credibility, if any, to be given a witness's opinion [or inference] based on having perceived a matter, you may consider the witness's opportunity to have perceived the matter, the witness's reasons for the opinion [or inference], and all other evidence related to the issue.
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ND R Evid 701
NOTE: The court should not give this instruction for run-of-the-mill lay opinion testimony, like "she looked angry" or "he was driving fast." The court should give this instruction when the lay opinion is more like expert opinion. Use the bracketed phrase about the witness not testifying as an expert if an expert witness has also testified.
2011 NDJI-CRIMINAL K - New
Duties of Jurors and Conduct
Performance of your duty as a juror is vital to our system of justice. Perform your duty without any fear, favor, or passion, and base your verdict on the evidence. I will give you the applicable law.
You must decide this case based solely on the evidence presented in this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, or the individuals or entities involved. You must not consult dictionaries or other reference materials, search the internet, or use any electronic device to obtain information about this case. Do not obtain information from any source outside the courtroom or visit the scene of any events discussed during trial.
During this trial, you must not talk to anyone, including your family and friends, about the case. You must not communicate with anyone about the case on your cell phone or other wireless devices, through e-mail, text messaging, or any social networking medium, including [list social networking sites]. While you deliberate you will not be allowed to possess any wireless communication device.
The parties have a right to have this case decided only on evidence they know about and that has been presented here in court. If you communicate about the case or do some research, investigation, or experiment that we do not know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and the right to cross-examination. That would not be fair to the parties.
Until you deliberate, please do not discuss the case with anyone or remain within hearing of anyone who is discussing it outside the courtroom.
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NDRCt 10.1(d)
NOTE: Judges may wish to consider adding the following language to their admonitions to jurors: "Do not use the internet or other electronic technology in an attempt to learn information about this case, or communicate with your family, friends, or anyone else about this case."
2011 NDJI-CRIMINAL K - NEW
Unlawful Killing or Injury of Law Enforcement Support Animal
A person who willfully kills, shoots, tortures, torments, beats, kicks, strikes, mutilates, disables or otherwise injures a law enforcement support animal without justification, is guilty of unlawful killing or injury of a law enforcement support animal.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Willfully [killed] [shot] [tortured] [tormented] [beat] [kicked] [struck] [mutilated] [disabled] [otherwise injured] a law enforcement support animal; and
4) The Defendant did so without justification.
DEFINITIONS
A law enforcement support animal means any animal used by or on behalf of a law enforcement officer in performance of the officer's functions and duties, including crowd control, corrections, arson investigation or search and rescue, regardless of whether the animal is on or off duty.
[Insert relevant definitions. NDCC 12.1 02 02.]
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NDCC 12.1-17-09(1)
2011 NDJI-CRIMINAL K - NEW
Interference With Law Enforcement Support Animal
A person who willfully [harasses, taunts, or provokes a law enforcement support animal] [interferes with a law enforcement support animal while the animal is working] [interferes with the individual handling a law enforcement support animal], is guilty of unlawful interference with a law enforcement support animal.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Willfully [harassed, taunted, or provoked a law enforcement support animal] [interfered with a law enforcement support animal while the animal was working] [interfered with an individual handling a law enforcement support animal].
DEFINITIONS
A law enforcement support animal means any animal used by or on behalf of a law enforcement officer in performance of the officer's functions and duties, including crowd control, corrections, arson investigation or search and rescue, regardless of whether the animal is on or off duty.
[Insert relevant definitions. NDCC 12.1 02 02.]
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NDCC 12.1-17-09(2)
2011 NDJI-CRIMINAL K - NEW
Harboring a Runaway Minor
Public Crimes, Obstruction
A person is guilty of harboring a runaway minor if that person willfully harbors a runaway minor with knowledge that the child is being sought by a law enforcement authority [and the person is not providing a temporary sanctuary].
ESSENTIAL ELEMENTS OF CRIME
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month][day][year], in _______County, North Dakota,
2) The Defendant, ________;
3) Willfully harbored a runaway minor;
4) Knowing that the child was being sought by a law enforcement agency;
[and, 5) the Defendant was not providing a temporary sanctuary to the runaway minor.]
[In determining whether a defendant was providing a temporary sanctuary to the runaway minor, (1) the runaway minor must be seeking refuge from a physically, sexually, or mentally abusive person, and (2) the duration of the sanctuary cannot exceed 72 hours.]
A runaway minor is defined as an unemancipated minor who is voluntarily absent from the minor's home without the consent of the minor's [parent] [parent entitled to custody] [legal guardian] with the intention of evading the direction or control of the [parent][legal guardian].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02]
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NDCC 12.1-08-10
2011 NDJI-CRIMINAL K - New [3.5_]
Use of Deadly Force
Presumption of Fear of Death or Serious Bodily Injury
A person is presumed to have held a reasonable fear of imminent death or serious bodily injury to [him/her]self or another when using deadly force if:
a. The person against whom the deadly force was used [was in the process of unlawfully and forcibly entering] [had unlawfully and forcibly entered and remains within] [or] [had removed or was attempting to remove another against his/her will from] a [dwelling] [place of work] [or] [occupied motor home or travel trailer]; and
b. The person who uses deadly force knew or had reason to believe that an [unlawful and forcible entry] [or] [unlawful and forcible act] was occurring or had occurred.
This presumption may be rebutted by proof beyond a reasonable doubt that the person who used the deadly force did not have a reasonable fear of imminent death or serious bodily injury to [him/her]self or another.
[This presumption does not apply if:]
[The person against whom the deadly force was used had the right to be in or is a lawful resident of the [dwelling] [place of work] [or] [occupied motor home or travel trailer], including an owner, lessee, or titleholder, and there is not a temporary or permanent domestic violence protection order or any other order of no contact against the person against whom deadly force was used.
[The person removed or sought to be removed is [a child] [a grandchild] [or] [is otherwise in the lawful custody or under the lawful guardianship of] of the person against whom deadly force was used.]
[The person who uses deadly force was [engaged in the commission of a crime] [or] [using the [dwelling] [place of work] [or] [occupied motor home or travel trailer] to further the commission of a crime.]
[The person against whom deadly force was used was a law enforcement officer who entered or attempted to enter a [dwelling] [place of work] [or] [occupied motor home or travel trailer] in the performance of official duties [and provided identification, if required, in accordance with any applicable law or warrant from a court] [or] [if the person using force knew or reasonably should have known that the person against whom the deadly force was used was a law enforcement officer].
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NDCC 12.1-05-07.1
See also: K-3.34, Reasonableness of Accused's Belief; K-3.55, Limits on Use of Excessive or Deadly Force; K-3.80, Excuse (Necessary and Appropriate Conduct); K-3.40, Defense of Others; K-5.18, Presumption.
NOTE: Subsection (3) of NDCC 12.1-05-07.1 indicates the presumption does not apply if the court makes certain findings. The commission takes no position on whether the word "court" in subsection (3) of section 12.1-05-07.1 means the judge or the jury.
2011 NDJI-CRIMINAL K - NEW
Tampering With Informant(s) in a Criminal Investigation
A person who, believing another may have information relating to an offense, [deceives such other person] or [employs (force), (threat), or (bribery)] with intent to hinder, delay, or prevent communication of such information to a law enforcement officer, is guilty of tampering with an informant(s) in a criminal investigation.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Believed another person may have had information relating to an offense;
4) [Deceived such other person] [or] [Employed (force), (threat), or (bribery)]; and
5) Intended to hinder, delay, or prevent communication of such information to a law enforcement officer.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02.]
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NDCC 12.1-09-02
Note: It is an affirmative defense in a prosecution under this section based on bribery that any consideration for a person's refraining from instigating or pressing the prosecution of an offense was to be limited to restitution or indemnification for harm caused by the offense. Pursuant to NDCC 12.1-01-03(3), an affirmative defense must be proved by the Defendant by a preponderance of the evidence and is not an element of the offense charged. See NDJI K - 4.30, Affirmative Defense - Burden of Proof.
2011 NDJI-CRIMINAL K-NEW
Tampering With Physical Evidence
A person who, [believing an official proceeding is pending or about to be instituted,] [believing process, demand, or order has been issued or is about to be issued], alters, destroys, mutilates, conceals, or removes a record, document, or thing with intent to impair its true form or availability [in such official proceeding] [for the purposes of such process, demand, or order], is guilty of tampering with physical evidence.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) [Believed an official proceeding was pending or about to be instituted,] [Believed process, demand, or order had been issued or was about to be issued];
4) Altered, destroyed, mutilated, concealed, or removed a record, document, or thing; and
5) Intended to impair its true form or availability [in such official proceeding] [for the purposes of such process, demand, or order]. [; and
6) The Defendant's acts substantially obstructed, impaired, or perverted the prosecution for a felony.]
DEFINITIONS
Process, demand, or order means process, demand, or order authorized by law for the seizure, production, copying, discovery, or examination of a record, document, or thing.
[Insert relevant definitions. NDCC 12.1-02-02.]
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NDCC 12.1-09-03
2011 NDJI-CRIMINAL K - NEW
Unlawful Harassment of and Communication With Juror
(Active Juror)
A person who, with intent to influence the official action of a juror, communicates directly or indirectly with the juror other than as part of the proceedings in a case, or harasses or alarms the juror is guilty of unlawful harassment of and communication with a juror.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Intended to influence the official action of the juror; and
4) [Communicated directly or indirectly with the juror, other than as part of the proceedings in a case] [Harassed or alarmed the juror].
DEFINITIONS
"Juror" means a grand juror or a petit juror and includes a person who has been drawn or summoned to attend as a prospective juror, and any referee, arbitrator, umpire, or assessor authorized by law to hear and determine any controversy.
Conduct directed against the juror's spouse or other relative residing in the same household with the juror shall be deemed conduct directed against the juror.
[Insert relevant definitions. NDCC 12.1-02-02.]
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NDCC 12.1-09-04
2011 NDJI-CRIMINAL K - NEW
Unlawful Harassment of and Communication With Juror
(Former Juror)
A person who, with the intent to harass or annoy a former juror because of the verdict returned by the jury or the participation of the juror in the verdict, [communicates directly or indirectly with the juror in a manner that intimidates the juror] [conveys a threat of injury or damage to the juror's property or person], is guilty of unlawful harassment of and communication with a former juror.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Intended to harass or annoy a former juror because of the verdict returned by the jury or the participation of the juror in the verdict; and
4) [Communicated directly or indirectly with the juror in a manner that intimidated the juror] [Conveyed a threat of injury or damage to the juror's property or person].
DEFINITIONS
"Juror" means a grand juror or a petit juror and includes a person who has been drawn or summoned to attend as a prospective juror, and any referee, arbitrator, umpire, or assessor authorized by law to hear and determine any controversy.
Conduct directed against the juror's spouse or other relative residing in the same household with the juror shall be deemed conduct directed against the juror.
[Insert relevant definitions. NDCC 12.1-02-02.]
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NDCC 12.1-09-04
2011 NDJI-CRIMINAL K - NEW
Eavesdropping on Jury Deliberations
A person who, intentionally [records the proceedings of a jury while such jury is deliberating or voting] [listens to or observes the proceedings of any jury of which he is not a member while such jury is deliberating or voting], is guilty of eavesdropping on jury deliberations.
ESSENTIAL ELEMENTS OF OFFENSE CHARGED
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota,
2) The Defendant, _______________;
3) Intentionally; and
4) [Recorded the proceedings of a jury while such jury is deliberating or voting] [Listened to or observed the proceedings of any jury of which he is not a member while such jury is deliberating or voting].
DEFINITIONS
"Jury" means grand jury or petit jury, and "juror" means grand juror or petit juror.
[Insert relevant definitions. NDCC 12.1-02-02.]
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NDCC 12.1-09-05
Note: The Defendant may be entitled to an instruction under NDJI K -3.01 if the evidence during the course of trial establishes a basis for the inapplicability defenses stated at NDCC 12.1-09-05(2).
2011 NDJI-CRIMINAL K - 3.55
Limits on Use of Excessive or Deadly Force
A person is not justified in using more force than is necessary and appropriate under the circumstances.
Deadly force is justified:
[if it is expressly authorized by law or occurs in the lawful conduct of war.]
[if it is used in lawful self-defense, or in lawful defense of others and the force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence.
The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the person menaced. The use of deadly force is not justified unless the person honestly and reasonably believed that safe retreat from the attacker was not possible.
A person seeking to protect someone else must try to cause that person to retreat or otherwise comply with the requirements of this provision before using deadly force, if safety can be obtained thereby. But, 1) a public servant justified in using force in the performance of duties or a person justified in using force in a public servant's assistance need not desist from the efforts because of resistance or threatened resistance by or on behalf of the person against whom the action is directed, and 2) no person must retreat within or from one's dwelling or place of work unless the person was the original aggressor or is assailed by someone known to also dwell or work there. If the facts and circumstances attending a person's use of deadly force against an assailant who is a cohabitant are sufficient to create an honest and reasonable belief that safe retreat from the assailant is not possible, use of deadly force is justified, and a failure to retreat is of no consequence.]
[if it is used by a person in possession or control of a dwelling or place of work, or a person who is licensed or privileged to be there, if the force is necessary to prevent commission of arson, burglary, robbery, or a felony involving violence upon or in the dwelling or place of work, and the use of force other than deadly force for those purposes would expose anyone to substantial danger of serious bodily injury.]
[if it is used by a public servant authorized to effect arrests or prevent escapes, if the force is necessary to effect an arrest or to prevent an escape from custody of a person who has committed or attempted to commit a felony involving violence, or is attempting to escape by the use of a deadly weapon, or has otherwise indicated the person is likely to endanger human life or to inflict serious bodily injury unless apprehended without delay.][if it is used by a guard or other public servant and the force is necessary to prevent the escape of a prisoner from a detention facility, unless the guard or other public servant knows that the prisoner is not a person who has committed or attempted to commit a felony involving violence, or is attempting to escape by the use of a deadly weapon, or has otherwise indicated a likelihood to endanger human life or inflict serious bodily injury unless apprehended without delay.
A detention facility is any place used, pursuant to Court Order, for the confinement of a person 1) charged with or convicted of an offense, 2) charged with being or adjudicated a juvenile delinquent, 3) held for extradition, or 4) otherwise confined pursuant to Court Order.]
[if it is used by a duly licensed physician, or a person acting at a physician's direction, if the force is necessary to administer a recognized form of treatment to promote the physical or mental health of a patient and the treatment is administered 1) in an emergency; 2) with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the patient's parent, guardian, or other person entrusted with the patient's care and supervision; or 3) by order of a Court of competent jurisdiction.]
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NDCC 12.1-05-07
State v. Leidholm 334 NW2d 811, 818, 820-21 (ND 1983)
NOTE: See NDJI K - 3.34, Reasonableness of Accused's Belief.
1985 NDJI-CRIMINAL K - 16.15
(2011 - reviewed with no changes)
Preventing Exercise of Civil Rights
A person, whether or not acting under color of law, who by force, threat of force, or by economic coercion, intentionally [injures, intimidates, or interferes with another because that person is about to exercise civil rights or because that person has exercised civil rights] [intimidates or prevents another from aiding a third person to exercise that person's civil rights], is guilty of Preventing Exercise of Civil Rights.
ESSENTIAL ELEMENTS OF OFFENSE
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, whether or not acting under color of law, by force, threat of force, or by economic coercion;
2) Intentionally [injured, intimidated, or interfered, with _______________, because _______________ was exercising or was about to exercise civil rights, or because _______________ had exercised civil rights] [intimidated or prevented _______________, from aiding _______________, a third person, to exercise that person's civil rights], as follows: _______________.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02]
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NDCC 12.2-14-05