PATTERN JURY INSTRUCTION COMMISSION
March 1-2, 2012
1:00 p.m.
Bismarck, ND
MEMBERS PRESENT: M. Armstrong, J. Feland, J. Geiger, T. Kolb, J. Lee, P. Myerchin, J. Nelson, J. Vendsel, P. Zuger
MEMBERS ABSENT: J. Anderson, D. Lillehaug, J. Webb
GENERAL BUSINESS
Chair Tracy Kolb called the meeting to order. Justin Hughes, law clerk for the South Central Judicial District, assisted.
Minutes:
Minutes of the October 2011 meeting were reviewed. M. Armstrong was removed from the "Members Present" area.
Motion to approve amended minutes: J. Geiger
Second: J. Feland
Approved
Financial Report:
The 2011-13 PJIC budget is $56,020.00, and the Commission has spent $9223.08 as of January 31, 2012. This amount is 16.46% of the budget with 29.17% of the biennium having passed.
Motion to approve the financial report: P. Myerchin
Second: P. Zuger
Approved
Interim Activities
1. Minutes and drafts from the October 2011 meeting were prepared and submitted for posting.
2. Staff worked closely with SBAND to prepare the 2011 JIGS for publication. SBAND decided this year to make the JIGS available in electronic format rather than print. It was also decided that JIGS should be PDF's rather than Word docs. After much struggling to maintain formatting during the conversion, the files are complete and the 2011 JIGS should soon be available for purchase.
3. 2011 JIGS were made available on SBAND website in early December. SBAND has hired a new person to work with the website and the JIGS, everything should be smoother next year.
4. J. Narum resigned from the Commission in November. J. Nelson, of Williston, was appointed to complete J. Narum's term, which runs through 2014.
5. Updated membership rosters were sent to the Court Administrator's office.
6. The Docket, a Supreme Court publication, requested an article about PJIC. Staff and Chairwoman T. Kolb worked together to draft the article in early January.
INSTRUCTIONS
a. NDCC 12.1-17.1, Offenses Against Unborn Children - P. Myerchin reviewed this chapter and determined instructions should be created. He drafted instructions mirroring the Murder, Manslaughter, Negligent Homicide and Assault chapters.
a. The first proposed instruction addressed knowing or intentional murder of an unborn child. Discussion was held regarding the bracketed self-defense element and it was decided to leave it in. Discussion was also held about including a Note at the bottom. The Commission feels Notes are useful for the user and should be included when necessary.
Motion to approve: J. Feland
Second: J. Vendsel
Approved
b. Extreme Indifference was the next proposed instruction. Language was amended to mirror the language of the statute.
Motion to approve: J. Feland
Second: J. Vendsel
Approved
c. The third proposed instruction addressed death during the commission of a crime. Discussion was held regarding the culpability level. Language was moved around to increase understanding.
Motion to approve: J. Lee
Second: J. Geiger
Further discussion was held regarding the culpability level of the murder and the felony offense.
J. Lee withdrew his motion.
Motion to table until October so everyone has a chance to research the issue: J. Geiger
Second: M. Armstrong
Approved
D. Lillehaug was assigned the Homicide instructions for October. P. Myerchin will work with him since the homicide and unborn child instructions will mirror each other. J. Feland will also provide input.
d. P. Myerchin suggested users be directed to the affirmative defense instruction already in place at K-6.10 rather than creating a new, identical one for this section. The Commission decided to amend the existing instruction to include murder of an unborn child.
Motion to approve: J. Feland
Second: J. Lee
Approved
e. The next instruction addresses Manslaughter of an Unborn Child. It was drafted to mirror the Manslaughter instruction already in place at K-6.20, including the references. The culpability level for manslaughter is reckless.
Motion to approve: J. Lee
Second: J. Geiger
Approved
f. Negligent Homicide of an Unborn Child was presented next. Again, the instruction was drafted to mirror the Negligent Homicide instruction at K - 6.30. The definition of "negligent" is included in K - 6.30. The committee agreed it is a cumbersome instruction, but that is the statutory definition. It was decided to remove it from the new instruction because the definition of "negligent" would be read in a different instruction.
Motion to approve: J. Feland
Second: P. Zuger
Approved
g. Aggravated Assault of an Unborn Child was drafted to mirror the Aggravated Assault instruction (K - 8.01).
Motion to table the instruction and the next based on the culpability issue: J. Vendsel
Second: J. Geiger
Approved
b. Proposed new instruction for felon in possession of firearm - P. Myerchin was assigned the task of drafting a new instruction based on NDCC 62.1-02-01(1). The statute has many different crimes based on the type of crime, age of the accused, etc. P. Myerchin proposed 4 different instructions, one each for 62.1-02-01(1)(a-d).
a. The first instruction is based on 62.1-02-01(1)(d) and applies when the defendant is under 18. These offenses are strict liability so no culpability level is required.
Motion to approve: J. Lee
Second: J. Vendsel
Approved
b. Unlawful Possession of a Firearm (Mental Disability) mirrors 62.1-02-01(1)(c). The statute states it does not apply to a person who has not suffered from the mental illness for the previous three years. The Commission questioned whether this was an element of the offense or an affirmative defense. P. Myerchin agreed to look more deeply before October.
Motion to table until October: P. Myerchin
Second: J. Vendsel
Approved
Motion to approve: J. Vendsel
Second: P. Zuger
Approved
d. The last instruction addresses an individual convicted of a felony offense involving violence or intimidation (NDCC 62.1-02-01(1)(a)). Language to mirror the statute was used, but the group felt it was cumbersome and would not be read to a jury. The primary goal is to draft instructions that are understandable to jurors. The statute requires the felony to have been one "involving violence or intimidation" and the Commission discussed whether this was a question or law or fact.
Motion to approve: P. Myerchin
Second: P. Zuger
Approved
Motion to authorize Staff to amend the previous instruction to mirror this one: J. Lee
Second: M. Armstrong
Approved
c. NDCC 12.1-10, Contempt (chapter) - P. Zuger reviewed this chapter to determine if instructions were needed. He drafted some proposed instructions based on the statutes. The defense was originally drafted as a separate instruction, but it could be included as bracketed language in the other instructions. The judges have never seen criminal contempt charged so the question was raised of whether instructions are even needed. Creating a pattern instruction does not hurt, and having the instructions available would be useful if it ever is charged.
Motion to not create jury instructions for 12.1-10-02(1) (Failure to Appear): M. Armstrong
Second: J. Lee
Approved
Motion to not create an instruction for 12.1-10-02(2) (Failure to Comply with Lawful Order): J. Lee
Second: P. Zuger
Approved
Motion to not create an instruction 12.1-10-03 (Refusal to Testify): M. Armstrong
Second: P. Myerchin
Approved
Motion to not create an instruction for 12.1-10-04 (Hindering Proceedings by Disorderly Conduct): P. Zuger
Second: J. Lee
Approved
a. 12.1-10-05, Disobedience of Judicial Order, is charged more often and a pattern instruction may be useful.
Motion to approve: M. Armstrong
Second: P. Myerchin
Approved
Motion to not adopt an instruction for 12.1-10-06: P. Zuger
Second: J. Geiger
Approved
d. K - 3.34, 3.40, 3.80 - M. Armstrong was asked to review these existing instructions. The law has not changed but some editorial changes may increase accuracy and understanding.
a. K - 3.34 (Self Defense (Reasonableness of Accused's Belief)) - Discussion was held regarding the term "apprehended." The instruction was drafted under the guidance of a Court opinion and the applicable statute. This is a subjective standard. References to definitions will not be included because the words are defined from the Defendant's viewpoint, not the legal definition.
Motion to approve: P. Myerchin
Second: J. Feland
Approved
e. Review of 2011 criminal legislation - J. Feland reviewed changes to criminal laws from the 2011 session. K - 7.01 includes definitions of Sex Offenses, but only those found in 12.1-20-02. J. Feland amended the instruction to include definitions of all Sex Crimes from the other areas of the code.
Motion to approve: J. Lee
Second: J. Geiger
Approved
Motion for Staff to add a note to K - 7.01 to all Sex Offense instructions: J. Lee
Second: P. Myerchin
Approved
K - 14.01 and 14.00 - "And" was changed to "or" in the Refusing to Halt statute, so the instructions were amended accordingly.
Motion to approve: J. Lee
Second: P. Zuger
Approved
Motion to amend K - 14.01 to combine elements 2 and 3: J. Feland
Second: J. Geiger
Approved
f. Failure to Register as a Sex Offender - J. Feland suggested changes to K - 20.27 to include statutory language added during the last session. A note was added to direct users to the definitions of K - 7.01. The group agreed the instruction needs further review (two instructions may be required) and will be assigned to J. Feland for October.
g. K - 17.20 was affected by changes to NDCC 12.1-31-01. The new language was added.
Motion to approve: P. Myerchin
Second: P. Zuger
Approved
h. NDCC 12.1-20-12.2 (Surreptitious intrusion); NDCC 12.1-20-24 (Facilitation of Sexual Acts in Public ) - J. Vendsel
a. J. Vendsel recommends no instruction for NDCC 12.1-20-24.
Motion: J. Geiger
Second: M. Armstrong
Approved
i. NDCC 12.1-23-08.1 (Removal of Identification Marks), -08.2 (Possession of Altered Property), -08.4 (Duplication of Keys) - T. Kolb reviewed these three statutes because there are no current instructions. All statutes are nearly 40 years old and have no annotations. T. Kolb recommends no instructions are necessary.
Motion to adopt recommendation: P. Myerchin
Second: J. Geiger
Approved
j. NDCC 12.1-21.1, Animal Research Facility Damage (chapter) - J. Geiger reviewed this chapter and recommends no instructions. The statutes have been around for 20 years and have never been charged.
Motion to adopt recommendation: M. Armstrong
Second: J. Lee
Approved
6. New Business
a. PJIC Policy Review - the policies of the Commission are included in the members' packets at every meeting. The policies have not changed in at least 5 years. The Commission looked over the policies and thought they still were valid. No changes were made.
b. Juror Instruction Poster - Washington State has created a poster reminding jurors not to use technology or outside resources. The poster is hung on the wall in each jury deliberation room to serve as a constant reminder to jurors. The Commission discussed whether something similar would be helpful in North Dakota. The consensus was to revise it to mirror North Dakota's admonition and discuss it again in October. Judge Nelson will work on it for the October meeting.
c. Use of "do" in verdict forms - The verdict forms include the word "do" (as in "we the jury 'do' find ________"). The language is cumbersome and seems unnecessary. The Commission agreed the verdict forms should be re-worked. It was also suggested to create verdict forms for special findings. J. Lee agreed to look at them for October.
d. Time and location of June meeting - The SBAND annual meeting will be June 14-15 in Grand Forks. The Commission has held a dinner meeting the night before the annual meeting in the past. The group agreed on Whitey's in East Grand Forks at 12:30 on Friday, June 15. Staff will make the arrangments.
Assignments for October 4-5, 2012
a. NDCC 12.1-16, Homicide (most of chapter) - D. Lillehaug
b. Murder of Unborn Children instructions - P. Myerchin
c. Employer Liability of Production Agriculture Employers - D. Lillehaug
d. NDCC 12.1-21-04 (Release of Destructive Forces); NDCC 12.1-21-06.1 (Interference with Telephone During Emergency Call) - J. Webb
e. NDCC 12.1-23-13 (Distribution and Use of Theft Detection Shielding Devices); NDCC 12.1-23-14 (Detention of Persons Suspected of Unlawful Use or Removal of Theft Detection Devices) - J. Anderson
f. K - 12.05 - M. Armstrong
g. K - 5.16, in light of State v. Nakvinda, 2011 ND 217 - J. Lee
h. K - 3.40, 3.80 - M. Armstrong
i. K - 20.27 (Failure to Register as a Sex Offender) - J. Feland
Motion to Adjourn: J. Vendsel
Second: J. Lee
Approved
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529-9617
(701) 522-3360