JURY INSTRUCTION DRAFTS - October 2011
If you have questions or comments, please contact please contact Jennifer M. Hauge at cjhauge@dishmail.net.
2012 NDJI-CRIMINAL K - NEW
Criminal Street Gang Crime
Any person who commits [name of crime] as a crime of violence or crime of pecuniary gain for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, or obtain membership into a criminal gang, is guilty of Criminal Street Gang Crime.
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;
2) The Defendant, _________, committed [name of crime] as a crime of [violence] [pecuniary gain];
3) Willfully [for the benefit of] [at the direction of] [in association with] any criminal street gang; and
4) With the intent to [(promote)(further)(assist) in the affairs of a criminal gang] [obtain membership into a criminal gang].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-06.2-01; 12.1-02-02.]
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NDCC 12.1-06.2-02
2012 NDJI-CRIMINAL K - NEW
Encouraging Minors to Participate in Criminal Street Gang
Any person eighteen years of age or older who knowingly or willfully causes, aids, abets, encourages, solicits, or recruits a person under the age of eighteen years to participate in a criminal street gang is guilty of Encouraging a Minor to Participate in a Criminal Street Gang.
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;
2) The Defendant, __________, knowingly or willfully [caused] [aided] [abetted] [encouraged] [solicited] [recruited] a person under the age of eighteen years to participate in a criminal street gang; and
3) The Defendant was eighteen years of age or older.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-06.2-01; 12.1-02-02.]
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NDCC 12.1-06.2-03
2012 NDJI-CRIMINAL K - NEW
Perjury
A person who, in an official proceeding, willfully makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a false statement previously made, when the statement is material, and the person does not believe the statement to be true, is guilty of perjury.
ESSENTIAL ELEMENTS OF THE 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;
2) The Defendant, ____________, in an official proceeding;
3) Willfully [made a false statement under oath or equivalent affirmation] [swore or affirmed the truth of a false statement previously made];
4) [The statement was material]; and
5) The Defendant did not believe the statement to be true.
DEFINITIONS
[Insert relevant definitions 12.1-01-04(22); 12.1-02-02.]
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NDCC 12.1-11-01(1)
NOTE: N.D.C.C. 12.1-11-04(1) states "Whether a falsification is material in a given factual situation is a question of law." But see, U.S. v. Gaudin, 515 U.S. 506 (1995), 115 S.Ct. 2310 (holding materiality is a question of fact).
2012 NDJI-CRIMINAL K - NEW
False Statement, (Official Proceeding)
A person who, in an official proceeding, willfully makes a false statement, whether or not material, under oath or equivalent affirmation, or willfully, swears or affirms the truth of the statement previously made, if he does not believe the same to be true, is guilty of false statement.
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;
2) The Defendant, ____________, in an official proceeding
3) Willfully [made a false statement, whether or not material, under oath or equivalent affirmation] [swore or affirmed the truth of a statement previously made, whether or not material] and,
4) Did not believe the statement to be true;
[5) The Defendant did not retract the falsification in the course of the official proceeding or matter in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding or the matter.]
DEFINITIONS
"Official proceeding" means a proceeding heard or which may be heard before any government agency or branch of public servant authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding. NDCC 12.1-01-04(22).
"Statement" means any representation, but includes a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation. NDCC 12.1-11-04(4); 12.1-11-02.
[Insert relevant definitions 12.1-02-02.]
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NDCC 12.1-11-02(2)
NOTE: See also 12.1-11-04, General Provisions (falsification and defenses) (retraction is a defense).
2012 NDJI-CRIMINAL K - 15.20
False Statements
(Governmental Matter)
A person who, in a governmental matter, [willfully makes a false written statement that is material and that the person did not believe to be true] [intentionally creates a false impression in a written application for a pecuniary or other benefit by omitting information necessary to prevent a material statement from being misleading] [willfully submits or invites reliance on any material writing that [he] [she] knows to be forged, altered, or otherwise lacking in authenticity] [willfully submits or invites reliance on any sample, specimen, map, boundary mark, or other object that [he] [she] knows to be false in a material respect] [willfully uses a trick, scheme, or device that [he] [she] knows to be misleading in a material respect] is guilty of False Statements.
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, ____________;
2) While involved in a government matter [willfully made a false written statement, _______________, which statement was material and which the Defendant did not believe to be true] [intentionally created a false impression in a written application for a pecuniary or other benefit, _______________, by omitting information necessary to prevent a material statement therein from being misleading] [willfully submitted or invited reliance on certain material,_______________, that the Defendant knew to be forged, altered, or otherwise lacking in authenticity] [willfully submitted or invited reliance on a certain sample, specimen, map, boundary mark, or other object, _______________, that the Defendant knew to be false in a material respect] [willfully used a trick, scheme, or device, _______________, that the Defendant knew to be misleading in a material respect].
[3) The Defendant did not retract the falsification in the course of the official proceeding or matter in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding or the matter.]
DEFINITIONS
A matter is a "governmental matter" if it is within the jurisdiction of a government office or agency, or of an office, agency, or other establishment in the legislative or the judicial branch of government. "Statement" means any representation, and includes a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts that are the subject of the representation.
[Insert relevant definitions. NDCC 12.1-02-02.]
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NDCC 12.1-11-02(2)
See also NDCC 12.1-11-04, General Provisions (falsification and defenses)(retraction is a defense).
2012 NDJI-CRIMINAL K - NEW
Tampering With Public Record
A person who knowingly makes a false entry in, or a false alteration of a government record, or who knowingly, without lawful authority, destroys, conceals, removes, or otherwise impairs the veracity or availability of a government record is guilty of tampering with public records.
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,
2) The Defendant, ___________, knowingly [made a false entry in, or false alteration of a governmental record] [without lawful authority destroyed, concealed, removed, or otherwise impaired the veracity or availability of a government record].
DEFINITIONS
"Government Record" means (a) any record, document, or thing belonging to, or received or kept by the government for information or record; (b) any other record, document, or thing required to be kept by law pursuant to a statute.
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NDCC 12.1-11-5(3)
NDCC 12.1-11-05
NOTE: In order for a government record to satisfy the definition of subpart (b) above, the record must be kept by law pursuant to a statute which expressly invokes the sanction of NDCC 12.1-11-05.
2012 NDJI-CRIMINAL K - NEW
Fraudulent Practice in Urine Testing
A person who willfully defrauds a urine test which is designed to detect the presence of a chemical substance or a controlled substance is guilty of fraudulent practice in urine testing.
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
2) The Defendant, ______________, willfully defrauded a urine test; and
3) The urine test was designed to detect the presence of a chemical substance, or a controlled substance.
DEFINITIONS
[Insert relevant definitions. NDCC 19-03.1-01; 12.1-02-02.]
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NDCC 12.1-11-07
2012 NDJI-CRIMINAL K - NEW
Fraudulent Practice in Urine Testing (devices)
A person who knowingly possesses, distributes, or assists the use of the device, chemical, or real or artificial urine advertised or intended to be used to alter the outcome of the urine test designed to detect the presence of a chemical substance, or a controlled substance is guilty of fraudulent practice in urine testing.
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
2) The Defendant, ______________, knowingly [possessed] [distributed] [assisted in the use of];
3) A [device] [chemical] [real or artificial urine];
4) [Advertised] [Intended to be used] to alter the outcome of the urine test.
DEFINITIONS
[Insert relevant definitions. N.D.C.C. 19-03.1-01, 12.1-02-02.]
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NDCC 12.1-11-07
2012 NDJI-CRIMINAL K - NEW
Disclosure of Confidential Information
Provided to Government
A person who in knowing violation of a statutory duty imposed upon him as a public servant, discloses any confidential information which he has acquired as public servant, is guilty of Disclosure of Confidential Information Provided to Government.
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,
2) The Defendant, __________________, willfully disclosed confidential information which he had acquired as a public servant; and
3) The Defendant knowingly did so in violation of the statutory duty imposed as a public servant.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-13-01; 12.1-01-04(27); 12.1-02-02.]
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NDCC §12.1-13-01
2012 NDJI-CRIMINAL K - NEW
Speculating or Wagering on Official Action or Information
(Acquiring Property or Wagering)
A person who, during employment as a public servant or within one year thereafter, in contemplation of official action by that person as a public servant or by a government agency with which the person is or has been associated as a public servant, or in reliance on information to which that person has or had access only in that person's capacity as a public servant,
[acquires a pecuniary interest in property, transaction, or enterprise which may be affected by such information or official action] [speculates or wagers on the basis of such information or official action]
[aids another to [acquire a pecuniary interest in property, transaction, or enterprise which may be affected by such information or official action] [speculate or wager on the basis of such information or official action]],
is guilty of Speculating or Wagering on Official Action or Information.
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;
2) The Defendant, _________, during employment as a public servant or within one year thereafter;
3) In contemplation of or in reliance on [the Defendant's official action as a public servant][official action by a governmental agency the Defendant had been associated with as a public servant] [information the Defendant has or had access to only in the Defendant's capacity as a public servant]; and
[4) Willfully [acquired a pecuniary interest in property, transaction, or enterprise which may be affected by such information or official action] [speculated or wagered on the basis of such information or official action]]
[4) Willfully aided another to [acquire a pecuniary interest in property, transaction, or enterprise which may be affected by such information or official action] [speculate or wager on the basis of such information or official action]].
DEFINITIONS
[Insert relevant definitions. 12.1-01-04(27); 12.1-02-02]
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NDCC 12.1-13-02(1)
2012 NDJI-CRIMINAL K - NEW
Speculating or Wagering on Official Action or Information
(Personal Benefit)
A public servant who takes official action which is likely to benefit the public servant as a result of an acquisition of a pecuniary interest in any property, transaction, or enterprise, or of a speculation or wager, which the public servant made or caused or aided another to make in contemplation of such official action is guilty of Speculating or Wagering on Official Action or Information.
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;
2) The Defendant, _____________________, while a public servant, willfully took official action likely to benefit the Defendant; and
3) The action was taken as a result of [the Defendant's acquisition of pecuniary interest in any property, transaction, or enterprise] [a speculation or wager the Defendant made or caused, or aided another to make].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04; 12.1-02-02]
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NDCC 12.1-13-02(2)
2012 NDJI-CRIMINAL K - NEW
Impersonating Officials
A person who falsely pretends to be [a public servant, other than a law enforcement officer, and acts as if to exercise the authority of such public servant] [a public servant or a former public servant and thereby obtains a thing of value] [a law enforcement officer] is guilty of Impersonating Officials.
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,
2) The Defendant, _____________________, willfully and falsely pretended to be [a public servant other than a law enforcement officer and acted as if to exercise the authority of such public servant] [a public servant or a former public servant and thereby obtained a thing of value] [a law enforcement officer].
DEFINITIONS
[Insert relevant definitions. 12.1-01-04; 12.1-02-02.]
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NDCC 12.1-13-04
NOTE: It is no defense to prosecution that the pretended capacity did not exist or the pretended authority could not legally or otherwise have been exercised or conferred. NDCC 12.1-13-04(2).
2012 NDJI-CRIMINAL K - NEW
Interception of Wire or Oral Communications
A person who intentionally intercepts any wire or oral communication by use of electronic, mechanical, or other devices is guilty of the unlawful interception of wire or oral communications.
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,
2) The Defendant, ___________________________, intentionally intercepted any wire or oral communication; and
3) The interception was accomplished by use of any electronic, mechanical, or other device.
DEFINITIONS
[Insert relevant definitions. 12.1-15-04; 12.1-02-02]
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NDCC 12.1-15-02
2012 NDJI-CRIMINAL K - NEW
Disclosure or Use of Wire or Oral Communications
A person who intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication, is guilty of the offense of the Unlawful Disclosure or Use of Wire or Oral Communications.
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,
2) The Defendant, ___________________________, intentionally [disclosed to any person] [used] the contents of any wire or oral communication;
3) Knowing that the information was obtained through the interception of a wire or oral communication.
DEFINITIONS
[Insert relevant definitions. 12.1-15-04; 12.1-02-02]
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NDCC 12.1-15-02
2012 NDJI-CRIMINAL K - NEW
Trafficking in Intercepting Devices
A person who within this state manufactures, assembles, possesses, transports, or sells an electronic, mechanical, or other device, knowing that the design of such device renders it primarily useful for the purpose of the secret interception of wire or oral communications is guilty of the offense of Unlawful Trafficking in Intercepting Devices.
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;
2) The Defendant, ___________________________, willfully [manufactured] [assembled] [possessed] [transported] [sold] an electronic, mechanical or other device;
3) Knowing the design of the device rendered it primarily useful for the purpose of the secret interception of wire or oral communications.
DEFINITIONS
[Insert relevant definitions. 12.1-15-04; 12.1-02-02]
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NDCC 12.1-15-03(1)
NOTE: See NDCC 12.1-15-03(3) for exceptions which may be an affirmative defense.
2012 NDJI-CRIMINAL K - NEW
Advertising in Intercepting Devices
A person who places in a newspaper, magazine, handbill, or other publication published in this state, an advertisement of an electronic, mechanical, or other device, knowing that the design of such device renders it primarily useful for secret interception of wire or oral communications, or knowing that such advertisement promotes the use of such device for secret interception of wire or oral communications is guilty of the offense of Advertising in Intercepting Devices.
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;
2) The Defendant, ___________________________, willfully placed an advertisement in a newspaper, magazine, handbill, or other publication that was published in this state;
3) The advertisement was for an electronic, mechanical or other device; and
4) Knowing [the design of the device rendered it primarily useful for secret interception of wire or oral communications] [the advertisement promoted the use of the device for secret interception of wire or oral communications].
DEFINITIONS
[Insert relevant definitions. 12.1-15-04; 12.1-02-02]
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NDCC 12.1-15-03(2)
NOTE: See NDCC 12.1-15-03(3) for exceptions which may be an affirmative defense.
2012 NDJI-CRIMINAL K - NEW
Interception of Correspondence
A person, knowing that a letter, postal card, or other written private correspondence has not yet been delivered to the person to whom it is directed, and knowing that he does not have the consent of the sender or receiver of the correspondence, damages or destroys the correspondence with intent to prevent its delivery, opens or reads sealed correspondence with intent to discover its contents, or knowing that sealed correspondence has been opened or read with the intent to discover its contents and intentionally divulges its contents, in whole or in part, or a summary of any portion of it, is guilty of the offense of Interception of Correspondence.
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;
2) The Defendant, ___________________________, knowing a letter, postal card or other written correspondence had not yet been delivered to the person to whom it was directed and knowing the Defendant did not have the consent of the sender or receiver of the correspondence;
3) The Defendant [damaged or destroyed the correspondence with the intent to prevent its delivery] [opened or read sealed correspondence with the intent to discover its contents] [knew that the sealed correspondence had been opened or read with the intent to discover its contents and then intentionally divulged its contents in whole or in part or a summary of any portion of it].
DEFINITIONS
[Insert relevant definitions. 12.1-15-04; 12.1-02-02]
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NDCC 12.1-15-05