PATTERN JURY INSTRUCTION COMMISSION
MARCH 1998 MEETING
The Pattern Jury Instruction Commission met March 5, 1998 in Bismarck at the Heritage Center, State Capitol. Keithe Nelson coordinated the meeting location and computer assistance.
| MEMBERS PRESENT Brenda Blazer | MEMBERS ABSENT Ronald Reichert |
GENERAL BUSINESS
Minutes. Minutes of the December 1997 meeting were reviewed.
Motion to approve: J. Hagerty
Second: J. McClintock
Approved
Financial Report. Of $23,000, PJIC has spent $5,307 to date, leaving $17,693.
Purchase of West Disk. J. Hagerty proposed purchasing the North Dakota case law, statutes, etc. on disk for the use of the staff attorney. The disk would be available to the attorney for research between meetings and brought to the meeting for use there. J. Hagerty had been bringing her own disk to the meetings for the Commission's use.
Motion to approve: J. Hagerty
Second: M. Stenehjem
Approved
Review of Interim Activities. Professor Michael Ahlen will speak at the June meeting and report preliminary information solicited from law students regarding the understandability of common jury instructions.
The minutes and drafts of instructions were posted on the Supreme Court website.
Correspondence from Justice Mary Maring indicated that the Gender Fairness Implementation Committee has recommended that PJIC consider strengthening jury instructions which require jurors to act in a bias-free manner, revise instructions for gender inclusive language, and review all instructions be reviewed to determine whether they are clear or strong enough in prohibiting gender bias. Judge Vukelic's response to Justice Maring indicating the Commission's work on these items was reviewed.
Instructions.
1. Statements by Counsel and Judge (PJI 1700). In the paragraph, "If counsel have made any statements as to the law which are not supported by these instructions, you should 'wholly' disregard those statement." Why the word "wholly" is bracketed and whether it is necessary was discussed. It was removed.
Motion to approve: J. McLees
Second: J. Simonson
Approved
2. Statements by Counsel and Judge (PJI 2119). "Wholly" was removed from this corresponding criminal instruction.
Motion to approve: M. McClintock
Second: J. Simonson
Approved
3. Direct and Circumstantial Evidence (PJI 1640). A 1997 case was cited using the medium-neutral case citation. This was discussed. J. Hagerty provided copies of Rule 11.6.
Motion to approve: M. Stenehjem
Second: J. McClintock
Approved
4. Direct and Circumstantial Evidence (PJI 2108). Law clerk Paul Myerchin prepared a memorandum addressing when a "Direct and Circumstantial Evidence" instruction should be given in a criminal case. He reported that North Dakota law suggests that it is proper for the trial court to instruct the jury on circumstantial evidence when the State's case rests wholly or substantially on circumstantial evidence, but the US Supreme Court and the 8th Circuit disagree because it may be confusing and the reasonable doubt instruction should be sufficient.. Whether there is support for a note indicating that the instruction should be given only when the prosecution's case rests wholly or substantially on circumstantial evidence was discussed. Cites would be Oliver and Holland. This was moved and seconded by D. Vogel and J. Simonson. In further discussion, J. McLees questioned whether the word person should be used instead of accused. J. Simonson prefers using plaintiff and defendant. J. Hagerty prefers using the specific name. The motion was amended to eliminate the note.
Motion to approve: D. Vogel
Second: J. Simonson
Approved
5. Sympathy, Prejudice, Emotion (PJI 1706). That one "should" be fair and impartial, etc. was changed to "must." Entitlement to the "same" treatment was changed to entitlement to "fair" treatment.
Motion to approve: J. Simonson
Second : D. Vogel
Approved
6. Sympathy, Prejudice, Emotion (PJI criminal). The criminal instruction will be identical to PJI 1706.
Motion to approve: J. Simonson
Second: M. Stenehjem
Approved
7. Weight and Credibility (PJI 2101 and PJI 1600). The instruction uses the words "bias or prejudice" and whether these are the same was discussed. J. Simonson suggested leaving both.
Motion to approve: J. McClintock
Second: K. Brust
Approved
8. Joint Ventures (PJI 910). The Commission discussed whether an automobile trip would be a joint venture. Is the time of the occurrence necessary? The position of the brackets was discussed: [between the parties at the time of the occurrence], [between the parties] [at the time of the occurrence], or [between [the parties] at the time of the occurrence]. The Commission selected [between the parties] [at the time of the occurrence]. The jury is told that this is a question of fact which must be decided. Is it necessary to tell them when there would be a special verdict? K. Brust suggested leaving it in because in commercial cases there may not be a special verdict.
Motion to approve: S. Plambeck
Second: M. Stenehjem
Approved (with B. Blazer dissenting)
9. Partnership (PJI 920). Coowners was hyphenated.
Motion to approve: J. Simonson
Second: J. McClintock
Approved
10. Liability of a Partner (PJI 925). Copartners was hyphenated.
Motion to approve: J. McLees
Second: M. Stenehjem
Approved
11. Simple Assault (PJI 2402). "Person" will be used in the general description of the crime, and "defendant" in the essential elements.
Motion to approve: J. McLees
Second: K. Brust
Approved
12. Definition--Severe Emotional Distress (PJI 651). The word "transitory" was discussed. Synonyms proposed were "temporary" and "momentary." The vote on "temporary was four in favor and four opposed. The phrase "as distinguished from trivial or transitory was eliminated.
Motion to approve: J. Simonson
Second: D. Vogel
Approved
The Restatement was reviewed. It states that no reasonable person "could" endure the distress whereas the ND instruction had said "should." This was changed.
Motion to approve: S. Plambeck
Second: D. Vogel
Approved
This instruction will be presented for final approval in June.
13. Permissible Conduct (PJI 656). Whether this instruction should be defined by the negative example was discussed. The desire to use positives rather than negatives for clarity was mentioned.
Motion to approve: J. Simonson
Second: J. McClintock
Approved (J. McLees dissenting)
14. Driving Under the Influence (PJI 2940). Why option "b" is needed was discussed: Prosecutors like it if they do not have a breathalyser to qualify under option "a." The present tense was used.
Motion to approve: M Stenehjem
Second: J. McClintock
Approved
Whether to use "person" or "defendant was discussed with "person" selected.
Motion to approve: J. McLees
Second: J. Simonson
Approved
15. Essential Elements of Offense (PJI 2944). The note stating to use subparts [c] and [d] when pertinent was eliminated. The introductory phrase, "any of the following," was changed to "any one of the following."
Motion to approve: M. Stenehjem
Second: D. Vogel
Approved
16. Actual Physical Control (PJI 2945). "Person" will be used in the general instruction. "Motor" is to be deleted from "motor vehicle."
Motion to approve: J Simonson
Second: M. Stenehjem
Approved
17. Essential Elements of Offense (PJI 2946). The note was eliminated, and the introductory phrase will be "any one of the following."
Motion to approve: J. McLees
Second: J. Simonson
Approved
18. Assault. Judge Schmalenberger had written the Commission suggesting that an Assault instruction was needed. The Commission reviewed the restatement and BAJI. They discussed why it was not titled "Battery." It is not in the statute. ND only has a criminal assault instruction. . The criminal instruction combines assault and battery. Further discussion was postponed.
19. Murder (PJI 2201). The words, "the burden of proof resting upon the State" will be changed to "the State's burden of proof is" in all instructions.
Motion to approve: J. Simonson
Second: J. McLees
Approved
20. Criminal Mischief (PJI 2604): The only change was corrected numbering.
Motion to approve: J. Simonson
Second: J. McLees
Approved
21. Criminal Trespass (PJI 2520, 2521, and 2522). This instruction reflects a change in the law in which the legislature added that it is criminal trespass if one stays on property after being told to leave. The problem of using the word "person" three times in the first sentence of 2522 was discussed.
Motion to approve: K. Brust
Second: D. Vogel
Approved
22. Disarming Law Enforcement Officer (new).
Motion to approve: D. Vogel
Second: J. McLees
Approved
23. Endangering a Vulnerable Adult (new).
Motion to approve: J. Simonson
Second: J. McLees
Approved
24. Gross Sexual Imposition (PJI 2302). The Commission decided that numbers from one to ten would be written out and from eleven on, the numerals would be used. This instruction was tabled.
25. Continuous Sexual Abuse of a Child (new). Stylistic changes were made.
Motion to approve: J. Hagerty
Second: M. Stenehjem
Approved
26. Corruption of Minors (PJI 2307). Minor style changes were made.
Motion to approve: J. Simonson
Second: J. Hagerty
Approved
27. Sexual Assault (PJI 2323, 2325). These instructions were tabled for further review.
28. Comparative Fault. D. Vogel, S. Plambeck, and K. Brust presented a review of their work. Ten points of discussion were noted: the scope of fault, the propriety of jury instructions and arguments on the effect of percentages, enhanced injury cases, failure to mitigate, liability for subsequent care, liability for pre-existing condition, the seat belt defense, statutory basis for continuing to give an instruction on negligent failure to warn or design and a second instruction on a strict liability failure to warn or design in a products liability action, and application of the comparative fault act to intentional acts. The need to get people thinking in terms of fault rather than negligence was presented, and that it has been difficult to get away from old methods. . Part of the mission of the Commission is to educate. J. Hagerty suggested that this subcommittee write an article for the Gavel. Fault and Special Verdict will be discussed at the October meeting. Comments on fault can be sent to the staff attorney for distribution.
29. Supplier's Duty to Warn (PJI 414). D. Vogel reported that this instruction is tabled pending the new Restatement.
ADMINISTRATIVE DETAILS
June Meeting. The June meeting will be in conjunction with the state bar association's annual meeting in Grand Forks.
Assignments.
J. Hagerty will prepare a sample style sheet for the criminal instructions for the June meeting.
In October, the following will be presented:
Responsibility for Joint Conduct--J. McClintock
Note-taking--J. Vukelic
Terrorizing--J. Vukelic
Instruction References--J. Vukelic
Assault-Battery--J. McClintock
Gross Sexual Imposition--J. Simonson
Solicitation--J. Simonson
Sexual Assault--J. McLees
Fault/Special Verdict--S. Plambeck, D. Vogel, K. Brust
Insurance-Bad Faith--M. Stenehjem
Respectfully submitted,
__________________________
Lynn A. Kerbeshian
Staff Attorney
2812 B 17th Avenue So.
Grand Forks, ND 58201
(701) 772-0159
e-mail: jkerbesh@mail.med.und.nodak.edu