JURY INSTRUCTION DRAFTS - October 2008
If you have questions or comments, please contact please contact Jennifer M. Hauge at cjhauge@dishmail.net.
October 2008 Drafts
2009 NDJI-CIVIL
INTRODUCTION
The judge will instruct the jury with respect to the function and duties of the jury and the rules of law to be applied in resolving the issues to be decided. NDCC 28-14-10(4) & NDRCivP, Rule 51.
The judge, in opening remarks to the jury, should identify the parties by name and give a brief statement as to the nature of the action and the circumstances out of which the litigation arises, indicating the approximate time and place. See NDJI-Civil C-1.01. This will orient the jury with respect to the instructions that are to follow.
The judge may give a statement of the plaintiff's case, followed by a statement of the defendant's case. If the Defendant pleads a counterclaim, a cross-claim, or a third-party claim, these in turn may be outlined with a summary of the response to the claim. See NDJI - Civil C-1.21, Civil C-1.22.
Legal issues that are solely for determination by the judge and allegations of claim or defense that are unsupported by any evidence will not be outlined to the jury. It is error for the judge to submit issues that are unsupported by evidence to the jury. Schan v. Howard Sober, Inc., 216 NW2d 793, 803 (ND 1974).
For the same reason, it is not advisable to read the pleadings to the jury. Reuter v. Olson, 59 NW2d 830, 833 (ND 1953); Welken v. Conley, 252 NW2d 311, 318 (ND 1977). This will also keep the judge alert to the necessity of translating the legalese of the pleadings into the language of the layperson.
Because the pleadings merely serve to frame the issues upon which evidence may be offered and received, the drafting of the explanation as to the nature of the case and the statement of the claims and defenses should be reserved until the judge has a clear conception of the issues upon which evidence has been received. Of necessity, the judge must skillfully evaluate the evidence received and restate the claims and defenses pleaded in light of the evidence adduced. Illustrations, but not a format, are presented here.
After outlining the pleadings, issues, and burden of proof, the judge will then instruct the jury on the pertinent rules of law applicable to the parties' claims and defenses, and verdict forms to be submitted to the jury.
In giving an instruction, the heading should also be included. This will make the oral delivery of the instructions more understandable and will assist the jury in reviewing the instructions in the jury room.
2009 NDJI-CRIMINAL
INTRODUCTION
In the trial of a criminal action, the Court is required to charge the Jury following the arguments of counsel, unless the Court, for good reasons and in its sound discretion, orders otherwise. NDCC 29-21-01(6); 29-21-02; & NDRCrimP 30
."Although the Jurors have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the Court." NDCC 29-21-04.
Instructions should begin with a brief statement of the nature of the action and the accusation, followed by a synopsis of the charging portion of the Information. These instructions should be followed by several basic instructions explaining the Presumption of Innocence, the Burden of Proof, Reasonable Doubt, Greater Weight of the Evidence, the pertinent laws governing the crime charged, and any Defenses asserted.
The Court should give an Essential Elements of Offense instruction following the statutory description of the crime charged and pertinent definitions and rules prescribed by law. The Essential Elements of Offense instruction should be followed by NDJI K - 5.01, an instruction informing the Jurors of their duty in disposing of the issues.
Next, the court should instruct the Jurors on consideration of the evidence - such as Weight of Evidence and Credibility of Witnesses, Impeachment of Witnesses, and Presumptions. This may be followed by various special instructions, such as Corroboration of Accomplice, Failure of Defendant to Testify, Greater Number of Witnesses, Alibi, Intent, Motive, Limitations on Statements by Defendant, and the like.
Finally, the Court should instruct the Jurors on comments by counsel and the Court, the forms of verdict to be submitted, and the conduct of the Jurors in retirement. See NDJI Criminal K - 5.50, 5.60, and 5.70.
In giving an instruction, the heading should be included. This will make the oral delivery of the instructions more understandable and will assist the Jury in reviewing the instructions in the jury room.
2006 NDJI-CRIMINAL K - 2.30
(2009 - reviewed with no changes)
Included Offense
If you find the Defendant not guilty of the crime of _______________, then you must consider whether the Defendant is guilty of the crime of _______________, a crime that is necessarily included in the offense charged.
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NDCC 12.1-01-04(15)
State v. Keller, 2005 ND 86, 695 NW2d 703
NOTE: Use this instruction if the Defendant is charged with a crime that includes a lesser crime described in other sections of the Code and applicable case law. "Included Offense" means an offense:
1) that is established by proof of the same or less than all the facts required to establish commission of the offense charged;
2) that consists of criminal facilitation of or an attempt of solicitation to commit the offense charged; or
3) that differs from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.
Before giving this instruction, the Judge must determine that the lesser crime is an included offense under 12.1-01-04(15). Supplemental instructions as to the essential elements of the lesser crime must be given if applicable. State v. Sheldon, 301 NW2d 604, 609 (ND 1980), cert. denied, 450 US 1002 (1981).
2009 NDJI-CRIMINAL K - 9.03
Robbery (Class C Felony)
Robbery and Crimes of Trespass
A person who, in the course of committing a theft, willfully inflicts or attempts to inflict bodily injury upon another person, or threatens or menaces another person with imminent bodily injury is guilty of Robbery.
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, ______________, was engaged in committing a theft; and
2) In the course of committing the theft, the Defendant willfully [attempted to inflict bodily injury upon another person] [or] [threatened or menaced another person with imminent bodily injury].
DEFINITIONS
An act is deemed "in the course of committing a theft," if it occurs in an attempt to commit a theft, whether or not the theft is successfully completed, or in immediate flight from the commission of, or an unsuccessful effort to commit, the theft.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
* * * * *
NDCC 12.1-22-01 (class C felony)
State v. McKing, 2007 ND 1981, 593 NW2d 342
2009 NDJI-CRIMINAL K - 9.10
Burglary (Class B Felony)
Robbery and Crimes of Trespass
A person is guilty of Burglary if, with intent to commit a crime, that person willfully enters or secretly remains in a building or occupied structure, or a separately secured or occupied portion thereof, at a time the premises are not open to the public and the actor is not licensed, invited, or otherwise privileged to enter or remain, as the case may be. Burglary is a class B felony, if [the offense is committed at night, and is knowingly perpetrated in the dwelling of another] [in effecting entry or while in the premises or in immediate flight from the premises, the actor willfully inflicts or attempts to inflict bodily injury or physical restraint on another person, or willfully menaces another person with the threat of imminent serious bodily injury, or is willfully armed with a firearm, destructive device, or other weapon the possession of which under the circumstances indicated an intent or readiness to inflict serious bodily injury].
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, _______________, willfully entered or secretly remained in [a building or occupied structure] [or] [a separately secured or occupied portion of a building or occupied structure], namely _______________;
2) The premises were not then open to the public;
3) The Defendant was not then licensed, invited, or otherwise privileged to enter or remain in the premises; and
4) The Defendant then and there intended to commit a crime in the premises[.] [; and]
[5) The offense was committed at night, and knowingly perpetrated in the dwelling of another person.] [; or]
[6) The Defendant, in effecting entry or while in the premises or in immediate flight from the premises, [willfully inflicted or attempted to inflict bodily injury or physical restraint on _______________] [willfully menaced _____________ with the threat of imminent serious bodily injury] [was willfully armed with a firearm, destructive device, or other weapon the possession of which under the circumstances indicated an intent or readiness to inflict serious bodily injury].]
DEFINITIONS
A person is "privileged," within the meaning of a burglary statute, if he may naturally be expected to be on the premises often and in the natural course of his duties or habits. Further, a person who is privileged may still commit a burglary if he enters at a time when he would not reasonably be expected to be present or if he goes into a room as to which his privilege does not extend.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-22-06.]
* * * * *
NDCC 12.1-22-02
State v. Haugen, 458 NW2d 288 (ND 1990)
2009 NDJI-CRIMINAL K - 9.12
Burglary (Class C Felony)
Robbery and Crimes of Trespass[In the event you find the Defendant not guilty of the crime of Burglary, a class B felony, then you must consider whether the Defendant is guilty of the crime of Burglary, a class C felony, an offense that is necessarily included in the offense charged.][A person is guilty of Burglary, a class C felony, if, with intent to commit a crime, that person willfully enters or secretly remains in a building or occupied structure, or a separately secured or occupied portion thereof, at a time the premises are not open to the public and the actor is not licensed, invited, or otherwise privileged to enter or remain, as the case may be.][Burglary is a class C felony if the [offense was not committed at night and was not knowingly perpetrated in the dwelling of another] [in effecting entry or while in the premises or in immediate flight there from, the actor did not willfully inflict or attempt to inflict bodily injury or physical restraint on another, or willfully menace another with the threat of imminent serious bodily injury] [was not willfully armed with a firearm, destructive device, or other weapon, the possession of which under the circumstances would indicate an intent or readiness to inflict bodily injury].]
ESSENTIAL ELEMENTS OF INCLUDED 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, _______________, willfully entered or secretly remained in a building or occupied structure] [or] [a separately secured or occupied portion of a building or occupied structure], namely, _______________;
2) The premises were not then open to the public;
3) The Defendant was not then licensed, invited, or otherwise privileged to enter or remain in the premises; and
4) The Defendant then and there intended to commit a crime in the premises.
DEFINITIONS
A person is "privileged," within the meaning of a burglary statute, if he may naturally be expected to be on the premises often and in the natural course of his duties or habits. Further, a person who is privileged may still commit a burglary if he enters at a time when he would not reasonably be expected to be present or if he goes into a room as to which his privilege does not extend.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-22-06.
* * * * *
NDCC 12.1-22-02
State v. Haugen, 458 NW2d 288 (ND 1990)
NOTE: If the first bracketed paragraph is used, the second bracketed paragraph should be omitted and the third paragraph should be used. If the Defendant is charged with a class C felony, the first and third paragraphs should be omitted. Only the second bracketed paragraph is required.
2009 NDJI-CRIMINAL K - 9.30
Breaking Into or Concealment Within a Vehicle (Class B Felony)
Robbery and Crimes of Trespass
A person is guilty of Breaking Into or Concealment Within a Vehicle, if, with knowledge of not being licensed or privileged to do so, and while armed with a firearm, destructive device, or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury, the person [forcibly enters a vehicle, vessel, or aircraft] [with the intent to commit a crime, willfully enters a vehicle, vessel, or aircraft, without the use of force] [with intent to commit a crime, enters a vehicle, vessel, or aircraft lawfully, and willfully hides in a vehicle, vessel, or aircraft].
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) acting willfully;
3) [forcibly entered a [vehicle] [vessel][aircraft], namely, __________ ][without the use of force, but with the intent to commit a crime, entered a [vehicle] [vessel] [aircraft] namely, ____________] [with intent to commit a crime, lawfully entered a [vehicle] [vessel] [aircraft] and willfully hid in a ] [vehicle] [vessel] [aircraft] namely, _______________];
4) The Defendant did so with knowledge of not being licensed or privileged to do so; and5) The Defendant was armed with a [firearm] [destructive device] [other weapon], the possession of which under the circumstances indicated an intent or readiness to inflict serious bodily injury.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
* * * * *
NDCC 12.1-22-04 (class B felony)
2009 NDJI-CRIMINAL K - 9.32
Breaking Into or Concealment Within a Vehicle (Class C Felony)
Robbery and Crimes of Trespass
A person is guilty of breaking into or concealment within a vehicle, if, with knowledge of not being licensed or privileged to do so, [the person [forcibly enters a vehicle, vessel, or aircraft] [with the intent to commit a crime, willfully enters a vehicle, vessel, or aircraft, without the use of force] [with intent to commit a crime, enters a vehicle, vessel, or aircraft lawfully, and willfully hides in a vehicle, vessel, or aircraft].
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, _______________, [forcibly entered into a certain [vessel] [vehicle] [aircraft], namely, _______________] [without the use of force, but with the intent to commit a crime, willfully entered a [vehicle] [vessel] [aircraft] namely ____________] [with intent to commit a crime, lawfully entered a [vehicle] [vessel] [aircraft] and willfully hid in a certain [vehicle] [vessel] [aircraft], namely, ___________________].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02.]
* * * * *
NDCC 12.1-22-04 (class C felony)
2009 NDJI-CRIMINAL K - 9.35
Stowing Away
Robbery and Crimes of Trespass
A person is guilty of stowing away if, with knowledge of not being licensed or privileged to do so, the person willfully and secretly remains aboard [a] [an] [vehicle] [vessel] [train] [aircraft] with intent to obtain transportation.
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, _______________, willfully and secretly remained aboard [a] [an] [vehicle] [vessel] [train] [aircraft] with intent to obtain transportation; and
2) The Defendant did so knowing that the Defendant was not licensed or privileged to do so.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02.]
* * * * *
NDCC 12.1-22-05
2009 NDJI-CRIMINAL K - 9.40
Definitions (Burglary - Breaking and Entering Offenses)
Robbery and Crimes of Trespass
"Occupied structure" means a structure or vehicle [in which any person lives or carries on business or other calling] [that is used for overnight accommodation of persons]. Such a structure or vehicle is deemed to be "occupied" regardless of whether a person is actually present.
"Storage structure" means any structure, truck, railway car, or aircraft that is used primarily for the storage or transportation of property.
"Highly secured premises" means any place that is continuously guarded or where display of visible identification is required of persons while they are on the premises.
"Dwelling" means any building or structure, though movable or temporary, or a portion thereof, that is for the time being a person's home or place of lodging.
"Night" means the period between thirty minutes past sunset and thirty minutes before sunrise.
"Premises" means all or any part of a building or real property, or any structure, vehicle, or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein.
* * * * *
NDCC 12.1-05-12, 12.1-22-06
2009 NDJI-CRIMINAL K - 19.05
Lottery
(Participation in Lottery)
A person who knowingly [sells, purchases, receives, or transfers a chance to participate in a lottery] [disseminates information about a lottery with intent to encourage participation in the lottery] is guilty of Participation in Lottery.
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) Knowingly [sold, purchased, received, or transferred a chance to participate in a lottery] or [disseminated information about a lottery intending to encourage participation in the lottery] as follows: _______________.
DEFINITIONS
"Lottery" is a plan for the distribution of a thing of value, whether tangible or intangible, to a person or persons selected by chance from among participants, some or all of whom have given a consideration for the chance of being selected.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-28-01, 12.1-02-02.]
* * * * *
NDCC 12.1-28-02
Midwestern Enters, Inc. v. Stenehjem, 2001 ND 67, 625 NW2d 234
NOTE: The fact that a lottery is to take place outside of North Dakota or is lawful outside North Dakota is no defense to a charge for acts occurring in North Dakota.
19852009 NDJI-CRIMINAL K - 19.10
Gambling as a Business
A person who engages or participates in the business of gambling is guilty of Gambling as a Business. A person who [willfully conducts a wagering pool or lottery] [willfully receives wagers for or on behalf of another person] [alone or with others, willfully owns, controls, manages, or finances a gambling business] [knowingly leases or otherwise permits a place to be regularly used to carry on a gambling business or maintains a gambling house] [willfully maintains a coin-operated gaming device on any place or premises occupied by that person] [is a public servant who willfully shares in the proceeds of a gambling business, whether by way of a bribe or otherwise] is guilty of Gambling as a Business.
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) [Willfully conducted a wagering pool or lottery] [Willfully received wagers for or on behalf of another person] [Alone or with others, willfully owned, controlled, managed, or financed a gambling business] [Knowingly leased or otherwise permitted a place to be regularly used to carry on a gambling business or maintain a gambling house] [Willfully maintained a coin-operated gaming device on any place or premise the Defendant occupied] [Was a public servant who willfully shared in the proceeds of a gambling business by way of a bribe or otherwise] as follows: _______________.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-28-01, 12.1-28-02.]
* * * * *
NDCC 12.1-28-02
NOTE: Insert the correct definition of gambling from the bracketed language. The definition of coin-operated gaming device is contained in NDCC 12.1-28-02(45) and NDJI K - 19.12.
1985 2009 NDJI-CRIMINAL K - 19.12
Coin-Operated Gaming Device
(Definition)
"Coin-operated gaming device" means any machine that is a so-called "slot" machine that operates by means of the insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine, to receive cash, premiums, merchandise or tokens; or a machine similar to the machine described above and which is operated without the insertion of a coin, token, or similar object.
[The term "coin-operated gaming device" does not include a bona fide vending or amusement machine in which gambling features are not incorporated, or an antique "slot" machine twenty-five years old or older that is collected and possessed by a person as a hobby and not maintained for the business of gambling.]
* * * * *
NDCC 12.1-28-02 (4)
See also NDCC 53-04-01 (definition of vending or amusement machine)
Midwestern Enters, Inc. v. Stenehjem, 2001 ND 67, 625 NW2d 234
2009 NDJI-CRIMINAL K - 20.10
Obscene Performance
A person who willfully presents or directs an obscene performance for pecuniary gain, or willfully participates in any portion of a performance which contributes to the obscenity of the performance as a whole, is guilty of Obscene Performance.
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) Willfully [ [directed] or [presented] an certain obscene performance, namely _______________, for pecuniary gain] [participated in any portion of a certain obscene performance, namely _______________, which portion contributed to the obscenity of the performance as a whole.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-14, 12.1-02-02, 12.1-27.1-01(5) and (9).]
* * * * *
NDCC 12.1-27.1-01(2)
2009 NDJI-CRIMINAL K - 20.15
Participating in Obscene Performance
In Liquor Establishment
A person who willfully participates in an obscene performance in an establishment licensed to sell alcoholic beverages, regardless of whether that participation is for compensation, is guilty of Participating in an Obscene Performance.
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) willfully participated in an certain obscene performance, namely _______________; and
3) The performance occurred in _______________, an establishment licensed to sell alcoholic beverages.
DEFINITIONS
[Insert relevant definitions from. NDCC 12.1-02-02, NDCC 12.1-27.1-01(5), (9), (10), and (11).]
* * * * *
NDCC 12.1-27.1-01(3) (second sentence)
2009 NDJI-CRIMINAL K - 20.18
Permitting an Obscene Performance
In a Liquor Establishment
A person who, as the owner or manager of an establishment licensed to sell alcoholic beverages, willfully permits an obscene performance in the establishment, is guilty of Permitting An Obscene Performance in a Liquor Establishment.
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) willfully permitted an obscene performance in _______________;,
3) in an establishment licensed to sell alcoholic beverages; and
4) The Defendant was the owner or manager of the establishment.
DEFINITIONS
[Insert relevant definitions from. NDCC 12.1-02-02, NDCC 12.1-27.1-01(5), (9), (10), and (11).]
* * * * *
NDCC 12.1-27.1-01(3) (first sentence)
2009 NDJI-CRIMINAL K - 1.01
Charge to Jury
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF _______________ ___________ JUDICIAL DISTRICT
State of North Dakota
-vs- CRIMINAL NO.
_______________, CHARGE TO JURY
Defendant.
MEMBERS OF THE JURY:
This is a criminal action brought to this Court by the filing of an [Information] [Complaint] [Citation] charging the Defendant, ____________, with having committed the crime of ____________ within ____________ County, North Dakota, on the ____ day of ____________, ____. The [Information] [Complaint] [Citation] charges the offense to have been committed as follows:
(Copy charging part of [Information] [Complaint] [Citation] here.)
2009 NDJI-CRIMINAL K - 7.66
Prostitution
A person who willfully is an inmate of a house of prostitution or is otherwise engaged in sexual activity as a business, willfully solicits another person with the intention of being hired to engage in sexual activity, or willfully agrees to engage in sexual activity with another for money or other items of pecuniary value is guilty of Prostitution.
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 was an inmate of a house of prostitution or was otherwise engaged in sexual activity as a business][willfully solicited another person with the intention of being hired to engage in sexual activity] [or] [willfully agreed to engage in sexual activity with another for money or other items of pecuniary value].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-20-02, 12.1-29-05.]
* * * * *
NDCC 12.1-29-03