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Alaska revises its contracts instructions

The Alaska Court System has thoroughly revised its Article 24 ("Contracts") jury instructions. The prior versions of these instructions are archived here.

(11/27/22) (permalink)

 

Unofficial Second Circuit jury instructions?

As most of you know, not every circuit has civil and criminal pattern jury instructions. The Sixth and Tenth Circuits have criminal, but not civil, pattern instructions. The First and Fourth Circuits have unofficial instructions that are "quasi official" in the sense that they are linked on official court Web sites. Until recently, the Second Circuit had no pattern instructions at all. All of this is explained on the federal pattern instruction list on the trialdex front page.

However, the Vermont District Court Web site recently added a Recommended Jury Instructions page with links to Civil and Criminal instructions. The Civil link goes to a 35-page PDF of civil instructions, with no cover sheet or other hint about authorship. The Criminal link is "under construction."

The trialdex federal pattern instruction list has been updated to link the new page. This should be a great resource for folks practicing in the Second Circuit, especially after the criminal instructions get posted.

(11/15/22) (permalink)

 

RIP litigation tools

Over the years I have experimented with a number of "litigation tools"; notably infographics and a federal criminal statute tracker. The number of page views they have attracted was not high enough to justify the time investment in keeping them current, so I have removed them from the site. For the curious, they are archived here.

(11/04/22) (permalink)

 

The Seventh Circuit Criminal Jury Instructions have been updated

Last year the Seventh Circuit posted "2021 Proposed Revisions/Additions" to the 2021 Seventh Circuit Criminal Jury Instructions on its Web site. Those proposed instructions appear to have now been folded into the official instructions, so that the link now reads "The William J. Bauer Pattern Criminal Jury Instructions (2022 updates)."

You can view these changes by looking at the 2021 Proposed Revisions/Additions (they appear in redline/strikeout). By the way, this link no longer appears on the Seventh Circuit site, but the file is still there.

They have also posted a set of 2022 Proposed Revisions to the Pattern Criminal Jury Instructions (once again, with the changes in redline/strikeout). The proposed changes are to:

• 18 U.S.C. § 201(b)(1)(A) – Giving a Bribe – Elements (new instruction)
• 18 U.S.C. § 201(b)(2)(A) – Accepting a Bribe – Elements (new instruction)
• 18 U.S.C. § 666(a)(1)(B) – Accepting a Bribe (changes to instruction and comment)
• 18 U.S.C. § 981(a)(1)(A) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(1) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(2) – Forfeiture Instruction (change to instruction)
• 18 U.S.C. § 982(a)(3) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(4) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(5) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(6) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(7) – Forfeiture Instruction (changes to instruction and comment)
• 18 U.S.C. § 982(a)(8) – Forfeiture Instruction (change to instruction)
• 21 U.S.C. § 853 – Drug Forfeiture – Elements (changes to instruction and comment

So ... you are well advised, at a minimum, to start your trial preparation with the official instructions (which have the 2021 proposed revisions folded in), and then consult the 2022 Proposed Revisions for the instructions listed above (I assume that in most cases a trial court would be inclined to give the proposed revised instruction).

(11/01/22) (permalink)

 

September 2022 changes to Ninth Circuit Model Civil Jury Instructions

The Ninth Circuit has posted the September 2022 revised version of its Model Civil Jury Instructions. The changes are as follows:

• The Comment to Instruction 9.0 (CIVIL RIGHTS ACTIONS—42 U.S.C. § 1983——Introductory Instruction) has added a Good-Faith Defense section.
• The Comment to Instruction 9.1 (Section 1983 Claim—Introductory Instruction) now cites the discussion of the governmental nexus test from Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1170-73 (9th Cir. 2022) (holding that school board members engaged in state action when they operated social media pages on which they discussed official business with members of public and posted about budgetary issues, school board meeting dates, school safety and security issues, and other topics).
• Instructions 9.9 (Particular Rights—First Amendment—Public Employees—Speech) and 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff) add this paragraph at the end:

  If the plaintiff establishes each of the foregoing elements, the burden shifts to the defendant to demonstrate that the defendant would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff. If you find that the defendant is able to demonstrate this, you must find for the defendant. If you find that the defendant is not able to demonstrate this, you must find for the plaintiff.

• The Comment to Instruction 9.11 now cites Prison Legal News v. Ryan, 39 F.4th 1121 (9th Cir. 2022) (applying Turner standard to prison rule prohibiting inmates from receiving mail containing sexually explicit material).
• The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) now has a number or references to Seidner v. de Vries, 39 F.4th 591 (9th Cir. 2022).
• The Comment to Instruction 9.28 (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Failure to Protect) now ends:

  Thus, it may be appropriate to let the jury decide, with an additional instruction, whether deference to officials is warranted, when there is a genuine dispute of material fact over whether the prison policies or practices were unnecessary, unwarranted, or exaggerated. See id. at 1190, citing Mendiola–Martinez v. Arpaio, 836 F.3d 1239, 1257 (9th Cir. 2016).

  In Fierro v. Smith, 39 F.4th 640 (9th Cir. 2022), the Ninth Circuit provided a framework for determining whether a deference instruction should be given. First, the instruction should be given if there is no genuine dispute that two conditions are met: (1) the treatment challenged by the prisoner was provided pursuant to a security-based policy, and (2) the treatment was a necessary, justified, and non-exaggerated response to security needs. Fierro v. Smith, F.4th at 648. Second, the deference instruction should not be given if there is no genuine dispute that neither of the two conditions are met. Id. Third, “if there is a genuine dispute whether deference is appropriate, a court has the option either to give no deference instruction at all or to explain to the jurors that it is their choice whether to give deference.” Id.

• The Introduction to the Comment to Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship)now notes that adult children have a right to familial assocation, and cites Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998). Part II.A. quotes from David v. Kaulukukui, 38 F.4th 792 (9th Cir. 2022). A sentence in the second paragraph of Part II.B. has been altered to read "But that Fourth Amendment standard is less demanding than the 'shocks the conscience' standard that applies to substantive due process familial association claims under the Fourteenth Amendment brought by the parent or child of the victim. Much of the text of II.B.1. is deleted, and "police officers" is replaced by "government officials." The text in the latter part of Part II.B.2. has been altered as follows:

  Herrera shows .... Accordingly, no reasonable jury could conclude that the aide’s conduct did not shock the conscience, and it therefore did not give rise to a parents’ Fourteenth Amendment claim rights were violated. See id.; see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011) (holding that school teacher did not violate student’s Fourteenth Amendment rights by failing to protect the student from having sex with another student in restroom, because there was no proof that teacher knew about any immediate risk).

  In cases where the victim is a detainee and the plaintiff is the victim or the victim’s estate, the Ninth Circuit has applied an objective standard for the deliberate indifference inquiry. See Castro v. County of Los Angeles, 833 F.3d 1060, 1070-71 (9th Cir. 2016) (en banc). Under that standard, a pretrial detainee can maintain a Fourteenth Amendment claim by proving the conduct was objectively unreasonable. See id. at 1071. The objective standard has been extended to cases where the detainee is in an immigration facility, see Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (per curiam), and where the detainee alleges that state officials failed to provide medical care, see Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122-24 (9th Cir. 2018). See Instructions 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force), 9.30 (Particular Rights—Fourteenth Amendment— Pretrial Detainee’s Claim re Conditions of Confinement/Medical Care), 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect), and 9.32A (Particular Rights—Fourteenth Amendment—Due Process—Civil Commitment).

• The Comment to Instruction 9.34 (Qualified Immunity) now cites J.K.J. v. City of San Diego, 42 F.4th 990 (9th Cir. 2021), and Seidner v. de Vries.
• The Comments to Instructions 10.1 (Civil Rights—Title VII—Disparate Treatment—Without Affirmative Defense of “Same Decision”) and 10.2 (Civil Rights—Title VII—Disparate Treatment—With Affirmative Defense of “Same Decision”) delete citations to Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1021 (9th Cir. 2021).
• The Spectrum of Marks section of Instruction 15.10 (Infringement—Elements—Validity—Unregistered Mark—Distinctiveness—Strength as a Likelihood of Confusion Factor) adds a fifth category of trademarks: "fanciful (also inherently distinctive)." The rest of the Instruction and Comment are rewritten accordingly.
• The Comment to Instruction 15.11 (Infringement—Elements—Validity—Distinctiveness—Secondary Meaning) now discusses P & P Imports LLC v. Johnson Enterprises, LLC, 46 F.4th 953 (9th Cir. 2022). It also notes that "[w]hen a mark is not in the public domain, a showing of secondary meaning requires a mark to be associated in common thought, not merely with the thing produced, but with the source or origin of the production, even if anonymous."
• Instruction 15.19 (Infringement—Likelihood of Confusion—Factor—Strength of Trademark Strength as a Factor for Evaluating Likelihood of Confusion) has been rewritten to include discussions of fanciful marks and generic names. The Comment indicates that this was done to reflect the holding in Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 631-32 (9th Cir. 2005).
• Instruction 15.26 has been renumbered as 15.25A. The remaining instructions in that Chapter are renumbered accordingly (e.g., 15.27 has been renumbered as 15.26).
• The paragraph re willfulness in the Comment to Instruction 15.29 (formerly 15.30) (Trademark Damages—Defendant’s Profits) has been replaced with the following:

  “[A] trademark defendant’s mental state is a highly important consideration in determining whether an award of profits is appropriate.” Romag Fasteners, Inc. v. Fossil, Inc., 140 S. Ct. 1492, 1497 (2020). However, a plaintiff need not show that a defendant acted with a particular mental state, such as willfulness, in order to be entitled to an award of profits. See id.; Harbor Breeze Corporation v. Newport Landing Sportfishing, Inc., 28 F.4th 35, 38 (9th Cir. 2022).

The prior version is archived here.

(10/30/22) (permalink)

 

September 2022 changes to Ninth Circuit Model Criminal Jury Instructions

The Ninth Circuit has posted the September 2022 revised version of its Model Criminal Jury Instructions. The changes are as follows:

• The Comment to Instruction 4.8 (Knowingly) now ends with a citation to United States v. Jaimez, 45 F.4th 1118, 1123 (9th Cir. 2022) (money laundering conspiracy).
• Instruction 6.32 (Venue) is new.
• The Comment to Instruction 12.4 (Controlled Substance—Distribution or Manufacture) adds this paragraph at the end:

  In prosecutions involving a physician charged with distributing controlled substances not “as authorized,” if the defendant produces evidence that his or her conduct was “authorized,” the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner. Ruan v. United States, 142 S.Ct. 2370, 2376 (2022).

• The Comment to Instruction 12.5 (Controlled Substance—Conspiracy to Distribute or Manufacture) now sites Jaimez.
• The Comment to Instruction 14.22 (Firearms–Using, Carrying, or Brandishing in Commission of Crime of Violence or Drug Trafficking Crime) has been rewritten, apparently to reflect United States v. Taylor, 142 S.Ct. 2015, 2020 (2022), Young v. United States, 22 F.4th 1115 (9th Cir. 2022), and United States v. Mathews, 37 F.4th 622 (9th Cir. 2022).
• The reference to "18 U.S.C. § 924(c)(2) (drug trafficking crime)" in the second-to-last paragraph of the Comment to Instruction 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime) has been stricken.
• One of the paragraphs in Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) has been revised as follows:

  [Not every seizure of a person against his or her will is a kidnapping. To decide whether such a seizure in this case amounts to a [seizure] [confinement] [detention] [asportation], kidnapping, you should consider the following factors:

• The Comment to Instruction 18.7 (Money Laundering) now cites Jaimez.
• Instruction 18.7A (Money Laundering Conspiracy) is new.
• The Comment to Instruction 18.14 (RICO—Pattern of Racketeering Activity) now cites Jaimez.
• The Comment to Instruction 20.18 (Sexual Exploitation of Child) now cites United States v. Mendez, 35 F.4th 1219 (9th Cir. 2022) (surreptitious filming of minor engaged in sexually explicit conduct satisfies “use” element).
• The discussions of United States v. Rashkovski, 301 F.3d 1133 (9th Cir. 2002), and United States v. Lopez, 4 F.4th 706 (9th Cir. 2021), in the Comment to Instruction 20.29 (Using or Attempting to Use the Mail or a Means of Interstate Commerce to Persuade or Coerce a Minor to Travel to Engage in Prostitution or Sexual Activity) have been rewritten, and the reference to United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007), has been removed.

Prior versions of these instructions are archived here.

(10/29/22) (permalink)

 

September 2022 changes to Massachusetts District Court Criminal Model Jury Instructions

Massachusetts has posted September 2022 changes to some of its District Court Criminal Model Jury Instructions. The changed instructions are:

• 2.120 Function of the jury; what is evidence; credibility of witnesses
• 6.210-Assault and battery on a police officer or public employee (G.L. c. 265, § 13D)
• 6.215 Assault and battery on a correction officer or correctional facility employee
• 7.360 Intimidating a witness, juror, court official or law enforcement officer (G.L. c. 268, s. 13B)
• 7.635 Failure to surrender a revoked or suspended license to carry firearms or firearm identification card, or a firearm, rifle, shotgun or machine gun
• 7.665 Discharging of a firearm within 500 feet of a building
• 8.525 Larceny by stealing from a person 60 or older/disabled

The prior versions of these instructions are archived here.

(10/28/22) (permalink)

 

Jury instruction news from Arizona

The Arizona State Bar has published a 6th Edition (Updated October 20, 2022) of its Criminal Revised Arizona Jury Instructions (RAJI). The 5th Edition is archived here.

They have also posted a May 2022 revised version of its PERSONAL INJURY DAMAGES 1 (Measure of Damages) instruction. The prior version is archived here.

(10/24/22) (permalink)

 

Third Circuit revises Comment to ADA instruction

The Third Circuit added a new paragraph to the Comment to an ADA Instruction this week. The last paragraph of the "Substantially Limits" section of the Comment to Instruction 9.2.1 (ADA Definitions—Disability) now reads:

In making the determination as to the degree of limitation imposed by an impairment, the instructions several times direct the jury to compare the plaintiff to “most people in the general population.” The Third Circuit recently confirmed this in a case involving a claimed learning disability but refined the notion of general population to focus on individuals of plaintiff’s age and educational experience. Ramsay v. Nat'l Bd. of Med. Exam'rs, 968 F.3d 251, 258 (3d Cir. 2020) (approving a district court’s reliance on diagnostic information “based upon a comparison between the individual and others in the general population who are of similar age and have received age-appropriate education.”).

(10/07/22) (permalink)

 

September 2022 CALCRIM Supplement

The California Judicial Council has posted a September 2022 Supplement to the California Criminal Jury Instructions (CALCRIM). The changes, which are extensive, are listed here.

(10/01/22) (permalink)