PATTERN JURY INSTRUCTION COMMISSION
OCTOBER 2001 MEETING
The Pattern Jury Instruction Commission met October 4, 2001 at the Heritage Center, Bismarck.
MEMBERS PRESENT: B. Beehler, J. Bekken, J. Greenwood, J. McClintock, J. McLees, T. Purdon, J. Rustad, T. Slorby
MEMBERS ABSENT: S. Plambeck, J. Simonson
J. McClintock, immediate past-chair, called the meeting to order.
Membership: Bradley Beehler, Grand Forks, was introduced as the Commission's new member.
Election: Judge Rustad was nominated to serve as Vice-Chair for the 2001-02 year.
Motion: T. Slorby
Second: J. Bekken
Minutes: Minutes of the June meeting were reviewed.
Motion to approve: J. Bekken
Second: T. Purdon
Financial Report: The 2001-03 budget is $24,697. Through August, expenditures were $1,720 with a balance of $22,977.
a. Publication of the 2001 instructions: SBAND recently filled a position, which has been vacant since an employee left last spring, which will include compiling and preparing the yearly instructions for distribution. The 2001 instructions should be ready for mailing in the near future and availability was advertised in the last issue of the Gavel.
b Handouts: The Commission reviewed the Rules and Procedures. Whether a quorum is needed for meetings was discussed. The consensus was that substantive changes would not be made without a number of members being present, but that a required quorum was not necessary. The Rules state that the Chair will serve for a period of one year and the past Chair will serve as Vice-Chair. The practice, however, has been to have the Vice-Chair serve as Chair the following year.
Motion to amend the Rules and Procedures reflecting that the Chair and Vice-Chair will serve for one year with the Vice-Chair elected at the October meeting. The Vice-Chair will assume the Chair's duties the following October: J. Bekken
Second: K. Brust
c. Interactive video network: Former member Dan Vogel had asked about the feasibility of having PJIC meetings through an interactive video network. Services are available through UND with the North Dakota Interactive Video Network. The contact person is June Piper. Ms. Piper noted that times would be subject to availability, and it would be most feasible to plan for a three to four hour period. The cost would be $90 per hour. Basin Electric has provided video conferencing but the sites to be joined during the meeting need to have compatible systems. They use an outside bridging service. The cost is $60 per hour which does not include the telephone cost or bridging--it covers the room and equipment and arranging the connection. The contact person is Dennis Gad. Members expressed their opinions that it does not seem to present a problem to meet in Bismarck, having the computer facilities available in one room is helpful, and given the number of handouts and ensuing discussion, meeting in person is advantageous at this time.
d. American Experience Table of Mortality: The staff attorney had been contacted by a Minnesota attorney asking where the American Experience Table of Mortality was available. The table is mentioned in NDJI Life Expectancy (70.50) and in Life Expectancy (Wrongful Death) (70.47). According to a contact at the Society of Actuaries, this table is historical. It began in 1858 and gives valuations for life expectancies until 1941. The National Association of Insurance Commissioners provides tables for different products and for life insurance which would include life expectancy. The current table is the CSO, Commissioner's Standard Ordinary. It is available in the library at the headquarters of the Society. The contact person is Jack Luff, Experience Study Actuary, Society of Actuaries, 475 North Martingale, Suite 800, Schaumburg, IL 60173. The general phone number is 847-706-3500. Mr. Luff's extension is 3571 and his fax is 3599. Members have had experience utilizing different tables, for example, one provided in Am. Jur. Kim Brust will write a note for the life expectancy jury instructions suggesting several appropriate sources for life expectancy tables.
e. Meeting Length: In the recent past, meetings have lasted one day instead of the scheduled two days. It was decided to continue to schedule the two days for flexibility.
1. [Duty to Register] [Duty to Inform](Sexual Offender) (K 7.90): J. McClintock responded to a request from Fritz Fremgen and noted revisions that had been made in the 2000 publication.
2. Nonexistence of defenses requiring proof by the prosecution: There had been a request from E.J. Bosch regarding the burden of proof on the non-existence of self-defense as an essential element of the crime. Should this be listed as an essential element? The issue at first concerned the Murder instruction but since it would be applicable to other crimes, T. Purdon was to review where it might be helpful. He reported that, after a review, it would be necessary to list it on basically all criminal instructions. The essential element would be: "The nonexistence of any defense on which you are instructed at the close of the evidence." The discussion was whether this should be included as an element at the beginning of the case because whether there is prima facie evidence of the defense is not known until after testimony. T. Purdon recommended that the element be kept as a separate instruction. The jury is given K - 301, Defense - Burden of Proof, but it is not tied to the elements. Is the jury going to make the connection? Should there be a note saying that this additional element is not included unless there is prima facie evidence of the existence of the defense? K. Brust suggested changing the title of 3.01. J. Bekken proposed "Additional Element - Nonexistence of Defense." T. Slorby noted that it is helpful to have the same elements presented at the beginning and at the end of the case even if it is a general one in the beginning a more specific one at the end of the case. J. Bekken suggested a note about when the additional element is used and perhaps the different ways it is presented.
Motion to rename K - 3.01, Additional Element of Offense - Nonexistence of Defense and to cite Olander: T. Purdon
Second: J. Bekken
3. Possession (K - 22.42): J. Bekken had originally raised a question about the possession instruction. Should "knowingly" in the statement "[a] person who knowingly has direct physical control over an object is in actual possession of it" be replaced by "willingly." T. Purdon reviewed the question and suggested that no change is necessary. This is a general possession instruction. Two instructions would be given--the general possession instruction and one specific to what is possessed. This general instruction is used with all types of possession cases--alcohol, firearms, stolen goods, etc. It is broader than possession of just controlled substances. The mens rea for possession of controlled substances is willfully. J. Bekken concurred. The word "intent" in "[a] person who knowingly has the ability and intent to exercise control over an object is in constructive possession of it" was discussed. In Interest of K.S., 500 NW2d 603, 606 (ND 1993) and City of Wahpeton v. Wilkie were reviewed. It was suggested that the word "intent" be replaced with "power." Whether a separate instruction for minor in possession is needed was discussed. In the possession instruction are ability, intention, and power all needed? Are ability to possess and power to possess different? T. Purdon will add a note about minor in possession.
4. Motive (K - 5.35): J. McLees reviewed a request from J. Holum. Suggesting that the words "an abiding conviction to a moral certainty" be removed. These words had previously been removed from the Proof Beyond a Reasonable Doubt instruction.
Motion to use language consistent with the Proof Beyond a Reasonable Doubt instruction: B. Blazer
Second: K. Brust
5. Loss of Consortium (C - 18.00): K. Brust reviewed a request from M. Williams for clarification on whether the loss of consortium claim is independent or derivative. Mr. Williams suggested that the jury instruction adopted the position that a claim is derivative while the case law suggests that the consortium claim is independent. After looking at the cases, Swenson v. Raumin and Meyer v. ND Workers Comp. Bureau, K. Brust stated that he believes the instruction correctly states the law. The instruction is really addressing causation, that is, there has to be an injury to the spouse before there can be a claim for loss of consortium. There is no reason to make changes. A cite to Wald v. City of Grafton will be added to the references.
6. Unlawful Possession of Drug Paraphernalia (K - 22.00): J. Greenwood noted that the references are now in chapter 19 so that this instruction needs revising.
7. Ordinary Negligence (C - 2.05): J. McLees reviewed the statutory basis for defining negligence as slight, ordinary, or gross. The discussion continued about whether the word "ordinary" is necessary in this instruction. There is an instruction titled gross negligence so is it necessary to use the work ordinary? Is it confusing to define all three term? Is the goal to state instructions according to black letter or to be wordsmiths, attempting to make them more understandable for jurors? Whether "ordinary" should be in parentheses following "negligence" or in brackets preceding "negligence" was discussed. The use of "ordinary" was not consistent throughout the instruction.
Motion to delete "ordinary" from the title and from the quotation beginning the
instruction, leaving the quotation marks around "negligence": B Blazer
Second: B. Beehler
8. Malice (C - 2.30): D. Vogel had written proposing that the malice instruction be revised to reflect that a finding of actual malice is required and presumed malice is eliminated. B. Blazer noted that the change is reflected in the note to Exemplary Damages (C - 72.00). The Malice instruction is in the general tort concept section and in the damages section. She will review and update the cites for C - 2.30.
9. Violation of Statutory Duty: This instruction was approved last year but tabled at the June meeting. S. Plambeck had noted that the instruction should also encompass rules, codes, etc. Whether the violation may be considered as evidence of negligence or is evidence of negligence was discussed. Larson v. Kubisiak states that the violation is evidence of negligence but not negligence per se. Is it properly called statutory duty? T. Slorby perceived a difference between violation of a statute and violation of statutory duty. This instruction was formerly included in the ordinary negligence instruction but since it was tabled, there is currently no instruction on violation of statutory duty. T. Purdon noted that it will be necessary to get this instruction ready for the next publication. The question remaining was whether there should be additional language about other applications besides statutes. B. Beehler will work on this.
Motion to table: J. Bekken
Second: T. Purdon
10. Momentary Forgetfulness of Danger: This was adopted as a separate instruction and will follow Assumption of Risk.
Motion to approve: K. Brust
Second: T. Slorby
K. Brust will review the three assumption of risk instructions. B. Blazer began reviewing four instructions which refer to contributory negligence. She noted that there are many jury instructions which have not been reviewed for accuracy or for new cites since 1986. The staff attorney will divide and assign all of the 1986 instructions to members for review.
Future Meetings: The next meeting will be March 7th and 8th at the Heritage Center.
a. Life Expectancy (C - 70.50) and Life Expectancy (Wrongful Death) (C - 70.47)--note with suggestions for life expectancy tables (K. Brust)
b. Additional Element of Offense - Nonexistence of Defense (J. Bekken, T. Purdon)--note
c. Constructive Possession (K - 22.42)--note about minors in possession (J. Bekken)
d. Preventing Arrest or Discharge of Other Duties (J. Greenwood)
e. Special Offenders (Clark v. State) (J. Greenwood)
f. Tortious Interference With Contract (S. Plambeck, J. Simonson)
g. Actual Fraud, Constructive Fraud, and Deceit (S. Plambeck)--review; a note explaining the differences
h. Malice (C - 2.30) (B. Blazer)--review for newer cites
i. Violation of Statute (B. Beehler)--expanding the application to rules, codes, etc.
j. Assumption of Risk, Assumption of Risk (By Passenger), and Assumption of Risk (Strict Products Liability): (K. Brust)--update the language and cites and check for accuracy
k. References to Contributory Negligence (B. Blazer)
l. Accidents Involving Death or Personal Injuries --Elements of the Offense (J. Rustad)
m. Carrying a Concealed Weapon (J. Rustad)
n. Assault (J. Simonson)
o. Ultimate Outcome (J. Simonson)--the effect of the fault percentages--Sollin v. Wangler, 2001 ND 96
p. 1986 Instructions--to be assigned
Motion to adjourn: B. Blazer
Second: J. Bekken
Lynn A. Kerbeshian
2575 So. 35th St.
Grand Forks, ND 58201
(701) 775-6220 e-mail: NDPJI@yahoo.com