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jury instruction blog archive

June 2019

New Jersey describes eight recent changes to its civil instructions

On May 29, 2019, the the New Jersey Supreme Court Committee on Model Civil Jury Charges issued a Notice to the Bar describing recent changes and additions to its Model Civil Charges:

  • 2.22 Unlawful Employment Practices Under the New Jersey Law Against Discrimination (LAD) - RETALIATION (N.J.S.A. 10:5-12(d) and -12(r)) (Approved 09/2009; Revised 01/2019)
    This charge is revised to incorporate and reference the amendment to section 12(d) and the new section 12(r) of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, based on the enactment of the Diane B. Allen Equal Pay Act (New Jersey Equal Pay Act).
  • 2.24A New Jersey Equal Pay Act (Approved 03/2019)
    This new charge is created in light of the new Diane B. Allen Equal Pay Act.
  • 2.24B Wage Disparity Under the NJLAD (Formerly 2.24) (Approved 05/1991; Revised 03/2019)
    A Note to Judge is added to incorporate reference to the Diane B. Allen Equal Pay Act ("NJEPA") as well as citation to Perrotta v. Morgan Advanced Materials, PLC, No. 2:18-13825, 2019 U.S. Dist. LEXIS 6745 (D.N.J. Jan. 15, 2019), an unpublished District of New Jersey case that held that the NJ EPA does not apply retroactively. This charge will continue to apply to equal pay claims that predate the effective date of the NJEPA. This charge is redesignated as 2.24B since it is likely to have limited application going forward.
  • 2.41 Worker's Compensation Retaliation (Approved 01/2019)
    This new charge is created to address cases where retaliation for seeking Worker's Compensation benefits is alleged.
  • 5.10A Negligence and Ordinary Care—General (Approved before 1984; Revised 01/2019)
    Reference to Henebema v. S. Jersey Transp. Auth., 403 N.J. Super. 485, 506-07 (App. Div. 2013), affd, 219 N.J. 481 (2014), is added to the Note to Judge to advise where there is a genuine dispute of material fact as to whether one or more of the parties performed a discretionary function (subject to a 'palpably unreasonable standard) or ministerial function (subject to "ordinary negligence principles), N.J.S.A. 59:2-3, N.J.S.A. 59:3-2, both the final jury charge and the verdict sheet must be tailored so the jury can make the appropriate fact findings and evaluate the party's liability exposure using the proper standard of care.
  • 5.12 Gross Negligence (Approved 02/2004; Revised 03/2019)
    Reference to Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344 (2016), is added to the Note to Judge given the Supreme Court's endorsement of the definition of "gross negligence" found within the charge. Additionally, citations to other cases in the Note to Judge defining gross negligence are removed in order to avoid confusion and focus on the Court's language in Steinberg.
  • 5.20A Dangerous Condition of Public Property (Approved 02/1996; Revised 01/2019)
    A Note to Judge is added to instruct the court to omit reference to non -applicable possibilities under the fourth element in an effort to avoid jury confusion. Additionally, reference to Henebema V. S. Jersey Transp. Auth., 403 N.J. Super. 485, 506-07 (App. Div. 2013), aff'd, 219 N.J. 481 (2014), is added to the second Note to Judge to advise where there is a genuine dispute of material fact as to whether one or more of the parties performed a discretionary function (subject to a "palpably unreasonable" standard) or ministerial function (subject to 'ordinary negligence principles"), N.J.S.A. 59:2-3, N.J.S.A. 59:3-2, both the final jury charge and the verdict sheet must be tailored so the jury can make the appropriate fact findings and evaluate the party's liability exposure using the proper standard of care.
  • 5.34 Property Damage in Motor Vehicle Accidents (Approved 10/2009: Revised 01/2019)
    This charge is renamed and revised to include instances where vehicle damage is alleged, but there is no photographic evidence of damage, in light of the published trial court opinion Abdurraheem v. Koch, 456 N.J. Super. 496 (Law Div. 2018).

New and revised New York criminal instructions

The New York History of Criminal Jury Instructions and Model Colloquies lists the following changes for June 2019:

  • Added: Amonitions to and for Multiple Juries
  • Gravity Knife: The prohibition on possession of a gravity knife was repealed. L. 2019, c. 34. Accordingly, the term "gravity knife" has been deleted from the definition of "deadly weapon" and from other instructions that included that term.
  • Added Instructions:
    120.03(3) Vehicular Assault 2 (all-terrain vehicle)
    120.03(3) Vehicular Assault 2 (snowmobile)
    125.12(3) Vehicular Manslaughter 2 (all-terrain vehicle)
    125.12(3) Vehicular Manslaughter 2 (snowmobile)
    130.95(2); 130.95(3); 165-15(12); 190.70; 195.16; 220.65(2); 240.55(1)
  • Revised Instructions: 120.05(3); 130.25(3); 130.67; 140.10(c); 140.10(d); 265.11

"The reason for, and nature of, a revision is normally reported in the first footnote of a charge." Prior versions of these statutes are archive here.

Vermont revises its criminal trespass instruction

On April 4, 2019, Vermont revised the Reporter's Note for unlawful trespass to incorporate a reference to the State v. Pixley, 2018 VT 110.


Colorado Criminal Reporter's Online Update

The Colorado Criminal Reporter's Online Update is an informal publication that compiles notes about case law developments that may show up later in the state's annual updates of its criminal instructions. I have added a note about this page to this site's links to Colorado instructions.

Connecticut adopts an "implicit bias" instruction, and revises payment card instructions

The following revisions were approved by Connecticut's Criminal Jury Instruction Committee on May 2, 2019:

  • The existing instruction on sympathy and bias has been replaced with two new instructions, 2.10-3A Sympathy and 2.10-3B Implicit Bias. "The new standalone instruction on implicit bias significantly expands and brings up to date the brief reference to implicit bias that appeared in the existing instruction on sympathy and bias."
  • Recent legislation has modernized and expanded payment card statutes to include debit cards and digital wallets. The instructions at 10-2.2 et seq. "have been revised to reflect those changes, and other corrections and edits have been made as needed."

An older copy of the instructions is archived here.

The adoption of an "implicit bias" instruction is a notable development. Illinois adopted a civil instruction on implicit bias last year. California's civil bias instruction warns against implicit bias. The federal circuits have not promulgated one, but the Comment to the Illinois instruction notes that:

Federal courts in other states, such as the Western District of Washington, have added a short video addressing the topic. See Understanding the Effects of Unconscious Bias, at, along with instructions.

The WD Washington video is available for viewing at the link. It goes beyond the language of the instructions noted above, with an "attorney" telling the jurors the results of "studies."

Illinois revises three homicide instructions

On April 26, 2019, Illinois revised three of its homicide instructions:

  • 7.15 (Causation In Homicide Cases Excluding Felony Murder) has some additional language apparently occasioned by People v. Nere, 115 N.E.3d 205, 425 Ill.Dec. 650 (2018).
  • 7.27 (Definition Of Drug Induced Homicide—Delivery Of Controlled Substances), and 7.28 (Issues In Drug Induced Homicide—Delivery Of Controlled Substances) have been amended to add references to "absorption," and to delete all the language about the weight of the controlled substances.

An older copy of the instructions is archived here.

Michigan defines proximate cause, updates No-Fault First-Party Benefits Action instruction

In April 2019 Michigan added new M Civ JI 15.01A (Definition of The Proximate Cause), and revised M Civ JI 35.01 (No-Fault First-Party Benefits Action: Explanation of Statute).

An older copy of the instructions is archived here.

Michigan revises criminal child abuse, adds perjury instruction

There were two June 2019 changes to the Michigan criminal instructions:

  • M Crim JI 20.38c (Child Sexually Abusive Activity—Possessing or Accessing) was was amended to "clarify that it applies when the defendant possesses or accesses child sexually abusive material for viewing it himself or herself."
  • New M Crim JI 14.2a was adopted "to accommodate an amendment to the perjury statute, MCL 750.423, providing for signing a document or record 'under penalty of perjury.'"

An older copy of the instructions is archived here.


Government loses in Rehaif; must prove knowledge of status in § 922(g) cases

The Supreme Court has issued its decision in Rehaif v. United States, No. 17-9560 (U.S., Jun. 21, 2019). As is sometimes the case, the most intestesting stuff is in the dissent.

First, a bit of background. I wrote about this case twice in April, because it was pretty clear which direction the case was headed.

Justice Breyer writes for a 7-2 majority. The holding:

A federal statute, 18 U.S.C. § 922(g), provides that "[i]t shall be unlawful" for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are "illegally or unlawfully in the United States." Ibid. A separate provision, § 924(a)(2), adds that anyone who "knowingly violates" the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word "knowingly." Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word "knowingly" applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

The Court "express[es] no view, however, about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue here." But it is pretty clear that Rehaif will apply to the much more common ex-con in possession cases.

One interesting example from the opinion: "Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is 'punishable by imprisonment for a term exceeding one year.' §922(g)(1) (emphasis added)."

Justice Alito, dissenting, notes that Rehaif "overturns the long-established interpretation of an important criminal statute, 18 U.S.C. § 922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today's decision is no minor matter."

He predicts that "the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for § 922(g) convictions. Applications for relief by federal prisoners sentenced under § 922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review."

Alito further notes that "[s]erious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his continued presence in the country was illegal."

Finally, there is the Old Chief issue; if a defendant challenges the knowledge element in ex-con cases, the government should be permitted to prove the nature of the prior crime.

One final thought. Is there an "ostrich defense"? A "knowingly" element can be proved by showing "willful blindness," but that's not an easy thing to prove. The government must show that the defendant subjectively believed that there was a high probability that a fact existed and took deliberate actions to avoid learning of that fact. Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011).


New and revised civil jury instructions from California

The Judicial Council of California extensively revised its Civil Jury Instructions (called CACI, pronounced "casey") in May. Accordingly, the CACI Web page now has two links:

I normally like to explain or highlight all of the individual changes in a state's instructions, but there are just too many of them in this case (the list of changed sections is seven pages long).

If you want to look at older versions of particular revised instructions, prior copies of the CACI Web site are archived here.


Special maritime and territorial jurisdiction of the United States

The power of Congress to enact criminal statutes must be grounded in the Constitution. United States v. Lopez, 514 U.S. 549, 552 (1995). In other words, every criminal statute must have a jurisdictional "hook." There should be some obvious federal interest. In some cases the hook will be an interstate or foreign commerce element, supported by Article I § 8 of the Constitution. In many cases other cases, though, this jurisdictional "hook" will be that the crime was committed "special maritime and territorial jurisdiction of the United States" (SMTJ), which are the places listed in 18 U.S.C. § 7:

  • Section 7(1) and (2) Maritime or High Seas Jurisdiction
  • Section 7(3) Territorial Jurisdiction
  • Section 7(5) Aircraft Jurisdiction
  • Section 7(7) Places Outside the Jurisdiction of Any Nation
  • Section 7(8) Foreign Vessels en route to and from the United States
  • Section 7(9) Premises of United States diplomatic, consular, military, and other government missions located overseas with respect to offenses committed by or against United States nationals

For example, the jurisdictional hook in 18 U.S.C. § 111 federal assaults is that they are committed against federal officers and employees. "[A] mere general policy of deterring assaults would probably prove to be an undesirable or insufficient basis for federal jurisdiction; but where Congress seeks to protect the integrity of federal functions and the safety of federal officers, the interest is sufficient to warrant federal involvement." United States v. Feola, 420 U.S. 671, 677 n.9 (1975). But the general federal assault statute, 18 U.S.C. § 113 requires proof that the assault was committed "within the special maritime and territorial jurisdiction of the United States."

These places are often described as "federal enclaves." Bear in mind that the federal government may own land without having jurisdiction over it. The issues can be complex, and a determination may hinge on whether the property was acquired before 1940. See United States v. Davis, 726 F.3d 357, 364 (2d Cir. 2013); 40 U.S.C. § 3112. Local U.S. Attorneys Offices know the history of their enclaves, and will come to court ready to prove jurisdiction.

The status of the enclave is an issue for the court, not the jury, although the jury may have to make a finding that the crime occurred on the enclave. "While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury." Model Crim. Jury Instr. 9th Cir. 8.1 Comment (2019). In any event, the government does not have to prove a mental state regarding jurisdictional elements. See Feola, id.

Special rules govern territorial jurisdiction in crimes involving Indians or Indian Country. See 18 U.S.C. § 1152 (Indian Country Crimes Act) and 18 U.S.C. § 1153 (Major Crimes Act).


Did the Eighth Circuit err in a bankruptcy fraud instruction?

As noted here the other day, there is no generally applicable federal attempt statute. The statute must specifically include attempt language, or the crime may not be prosecuted as an attempt.

Title 18 U.S.C. § 152 provides an example. The statute sets out in separate paragraphs nine ways to commit bankruptcy fraud. The word "attempt" appears in paragraph (6) ("knowingly and fraudulently gives, offers, receives, or attempts to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof for acting or forbearing to act in any case under title 11"), but nowhere else in the statute. One would conclude from that scheme that the government can prosecute for attempted bankruptcy fraud under paragraph (6), but not otherwise.

Paragraph 152(1) criminalizes knowingly and fraudulently concealing property that was part of the bankruptcy estate. It says nothing about attempt, so the government cannot prosecute it as an attempt. One can imagine examples of attempted concealment that would not constitute concealment. A suspect who acts while under surreptitious surveillance does not "conceal" anything. Or consider a circumstance where the suspect falsely denies the existence of a bank account to a custodian who knows for certain that account exists. Finally, what if the defendant attempts to conceal something he that he thinks is part of the bankruptcy estate, but isn't? In each case, the suspect is attempting to conceal, but does not conceal property of the estate. There is attempted concealment, but not concealment, and consequently not a crime under paragraph 152(1).

However, Eighth Circuit Model Criminal Instruction 6.18.152A tells jurors that they can convict under paragraph (1) where the defendant "attempted to conceal" the property. This language, the Judicial Committee asserts, "should be used where an attempted concealment was unsuccessful. It is no defense that the defendant's attempt to conceal was unsuccessful. See United States v. Cherek, 734 F.2d 1248, 1254 (7th Cir. 1984); United States v. Porter, 842 F.2d 1021, 1024 (8th Cir. 1988)."

Cherek says that "[e]ven if the asset is not ultimately determined to be property of the estate under the technical rules of the Federal Bankruptcy Code, Section 152 properly imposes sanctions on those who preempt a court's determination by failing to report the asset." But this is likely dicta. There was a genuine issue about whether the property was part of the bankruptcy estate, and the case was affirmed on plain-error review. Even more to the point, the assertion cannot possibly be true; the statute says "conceals ... any property belonging to the estate of a debtor." 18 U.S.C. § 152(1) (emphasis added).

Porter has nothing to say about the issue.

An attempt requires a substantial step, so proof of "attempt" looks very much like proof of an unsuccessful concealment. It is certainly true that an unsuccessful concealment can amount to a concealment. Paragraph § 152(1) prosecutions, almost by definition, involve botched concealments. The defendant hides property, and somebody finds it. That is an unsuccessful concealment in the normal understanding of the term.

But, as the examples above illustrate, it is more than an attempt. Note also that factual impossibility is not a defense to attempt, but is almost certainly a defense to concealing.

The Committee should have been clarified this issue in a separate definition of "conceal," not by adding "attempted concealment" to the elements list. Congress could have made attempted concealment a crime, but did not do so.

None of the other circuits include "attempted concealment" in the elements section of their § 152(1) model instructions.


Federal attempt crimes

Those accustomed to state criminal practice, where attempt is an optional theory for almost any crime, might be surprised to learn that there is no generally applicable federal attempt statute. In fact, most federal crimes cannot be charged as attempts. The statute must specifically include attempt language, or the crime may not be prosecuted as an attempt.

The United States Code does not define "attempt," but courts have adopted the 1962 Model Penal Code definition: (1) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial step" toward commission of the intended offense which strongly corroborates the actor's criminal intent.

Some circuits have their own definitions for "substantial step." The Ninth Circuit, for example, defines a substantial step as requiring that the defendant's act or actions "demonstrate that the crime will take place unless interrupted by independent circumstances." Model Crim. Jury Instr. 9th Cir. 5.3. The Tenth Circuit defines "substantial step" as "something beyond mere preparation. A substantial step is an act which, in the ordinary and likely course of events, would lead to the commission of the particular crime. The step must be a strong indication of the defendant's criminal intent, and must unequivocally mark the defendant's acts as criminal. It should demonstrate commitment to the crime charged." Pattern Crim. Jury Instr. 10th Cir. 1.32.


Accomplice liability

Accomplice liability for federal crimes is described in 18 U.S.C. § 2(a). Many discussions of this issue (also referred to as "aid and abet") begin by quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), which defines it as occurring when one who "associate[s] himself with the venture ... participate[s] in it as something that he wishes to bring about ... [and] seek[s] by his action to make it succeed."

The most important case, though, is Rosemond v. United States, 572 U.S. 65 (2014). It confirms that, while any aid on any element is sufficient, there must be proof of a state of mind extending to the entire crime. Rosemond was a § 924(c) prosecution that held that the prosecution must prove that the accomplice knew in advance that the other person would use or carry a firearm in relation to crime of violence or drug trafficking crime.

A review of the pattern jury instructions turns up one unsettled issue. There is something called the "natural and probable consequences doctrine" that states that if the defendant was an accomplice to an offense, the defendant is criminally responsible for all crimes committed by the principal that were the "natural and probable consequence" of the original crime. This is a matter of some controversy. See Rosemond, id. n.7. In modern federal cases it would be unusual to see this theory pursued without proof of the defendant's knowledge that the principal intended to commit the additional crimes.

There are two closely related theories of liability. One is causing another to commit a crime, described at 18 U.S.C. § 2(b). There is some overlap between these two subsections of § 2. Subsection 2(b) is used in cases with innocent intermediaries. It also requires a willful mental state.

The other related theory of liability is Pinkerton liability, which we'll talk about later.


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