SJury Instructions Part I

Page 1
1 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.100 Instruction 1.100 INSTRUCTION TO DEFENDANT(S) ON BOND AT BEGINNING OF TRIAL
As a condition of your release, you must be in the courtroom at all times during this trial unless I excuse you. If you willfully fail to appear, an arrest warrant may be issued for you, and you may be prosecuted for failing to appear. If you are convicted of failing to appear, you can receive an additional term of imprisonment, a fine, or both. In this case that means up to [___________________] additional years in jail and an additional fine of up to $[_______]. If you have posted bond, your bond may be forfeited. In addition, if you willfully fail to appear for any part of this trial, the trial may continue in your absence and you will give up your rights to be present and to participate in the trial during your absence.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in its contents. The specific penalties for failure to appear depend on the substantive charges in the case and are found in D.C. Official Code 23-1327 (2001) and 18 U.S.C. 1346. This instruction should be given at the beginning of trial whenever one or more defendants are on bond or it is anticipated that a defendant may be released on bond during the trial. The instruction should be directed to the defendant(s) out of the presence of the jury. A defendant can waive the requirement that he be present at trial if the trial court determines that the defendant voluntarily failed to appear at trial. Before continuing with a criminal trial in the absence of a defendant, trial courts are required to make findings concerning voluntariness of the defendant's absence, and this duty of inquiry extends throughout the period up to sentencing. Kimes v. U.S., 569 A.2d 104
Page 2 1-I Criminal Jury Instructions for DC Instruction 1.100
(D.C. 1989) . See also Black v. U.S., 529 A.2d 323 (D.C. 1987) (reversible error to take the testimony of rebuttal witnesses and discuss jury instructions in the absence of an involuntarily absent defendant who telephoned the trial judge's chambers indicating that he had to use public transportation to get to the courthouse because someone had taken the battery from his car); Smallwood v. U.S., 407 A.2d 675 (D.C. 1979) (trial court properly proceeded to final judgment on insanity phase of bifurcated trial although defendant had escaped from custody). See generally Crosby v. U.S., 506 U.S. 255 (1993) (Fed. R. Crim. P. 43 prohibits the trial in absentia of a defendant who is not present at the beginning of the trial); Taylor v. U.S., 414 U.S. 17 (1973) (defendant may voluntarily waive right to be present; no warning required); U.S. v. Raper, 676 F.2d 841, 219 U.S. App. D.C. 243 (1982) (trial judge has discretion to decide whether defendant's voluntary absence without good cause is waiver of right to be present); U.S. v. Jones, 514 F.2d 1331, 169 U.S. App. D.C. 90 (1975) (defendant waived his right to be present at trial where he advised counsel he did not care to continue to attend trial). Cross reference: No. 6.602, Failure to Appear.
Page 3
2 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.101 Instruction 1.101 INTRODUCTION AND VOIR DIRE
Good [morning] [afternoon], ladies and gentlemen, and welcome to courtroom _____. I am Judge ___________________, and I will be the presiding judge in this case. You have been called to this courtroom for possible selection in a criminal case entitled ___________________. Would you all please stand so that the Deputy Clerk can swear you in, and then we will proceed. [Oath given .] The purpose of jury selection is to select jurors who have no prior knowledge of the case and no bias toward either side in the case. In short, it is our aim to select a jury that will reach a verdict based solely on the evidence presented in this courtroom and the law as I instruct you. During this process, you will be introduced to the participants in the trial, and I will ask you a series of questions that the lawyers and I think will be helpful to us in selecting a fair and impartial jury. You, of course, are bound by the oath you've just taken to truthfully answer those questions. [ If index cards are used ] You all should now have an index card and a pen or pencil. Please look at your juror badge and write the last three digits from your badge in the upper right-hand corner of your index card. I am now going to ask you a series of _____ [give number] questions. They are all yes/no questions. If you have a "yes" answer to a particular question, please write the number of the question on your card. Don't write "yes" or why you have a "yes" answer; just write the number. I will then bring each of you to the bench and put this husher on. You will give me your card and state your jury number, and I will ask you why you did or did not answer particular questions. We do this at the bench to preserve your privacy. [ If topic sheets are used ] You all should now have a topic sheet and a pen or pencil. Please look at your juror badge and write the last three digits from your badge in the upper right-hand corner of your topic sheet. I am now going to ask you the series of _____ [give number] questions on your sheet. They are all yes/no questions. If you have a "yes" answer to a particular question, please circle the number of the question on your sheet. Don't write "yes" or why you have a "yes" answer; just circle the number. I will then bring each of you to the bench and put this husher on. You will give me your card and state your jury number, and I will ask you why you did or did not answer particular questions.
We do this at the bench to preserve your privacy. We're going to be asking what may appear to you to be some personal questions in an attempt to get your viewpoint about things, and it is important that you be entirely straightforward with us in your responses so that we may more easily select the jury for this case. [ Read questions .]____________________________________ Comment: This instruction was added in the 2008 release for use before jury selection to explain the procedure currently used by most judges in Superior Court and in District Court. The court should select the appropriate portions of the instruction depending upon whether index cards or topic sheets are used.
Page 5
3 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.102 Instruction 1.102 PRELIMINARY INSTRUCTION BEFORE TRIAL
Before we begin the trial, I want to explain some of the legal rules that will be important in this trial. I want to emphasize that these remarks are not meant to be a substitute for the detailed instructions that I will give at the end of the trial just before you start your deliberations. These preliminary instructions are intended to give you a sense of what will be going on in the courtroom and what your responsibilities as jurors will be. [ Insert at this point relevant instructions concerning : 1. Notetaking by Jurors (See Instruction 1.105); 2. Questions by Jurors (See Instruction 1.106); 3. Preliminary Instruction to Jury Where Identity of Alternates is Not Disclosed (See Instruction 1.107); and 4. A Juror's Recognition of a Witness or Other Party Connected to the Case (See Instruction 1.108)]. Now let me explain briefly some of the procedures we will follow and some of the rules of law that will be important in this case. This is a criminal case that began when the [grand jury returned an indictment] [(United States Attorney) (Attorney General of the District of Columbia) filed a charging document called an information with the court]. [ Read or summarize the indictment or information. ]
You should understand clearly that the [indictment] [information] that I just read [or summarized] is not evidence. The [indictment] [information] is just a formal way of charging a person with a crime in order to bring him/her to trial. You must not think of the [indictment] [information] as any evidence of the guilt of the defendant, or draw any conclusion
about the guilt of the defendant just because s/he has been [indicted] [formally charged]. [At the end of the trial, you will have to decide whether or not the evidence presented has convinced you beyond a reasonable doubt that the defendant committed the offense[s] with which he has been charged. The defendant has been charged with [describe charges]. To prove [name of offense], the government must prove beyond a reasonable doubt each of the elements of this offense. The elements of [name of offense] are: [ Read elements of the offenses and any other required instruction relating to the substantive offense.]
Every defendant in a criminal case is presumed to be innocent. This presumption of innocence remains with the defendant throughout the trial unless and until s/he is proven guilty beyond a reasonable doubt. The burden is on the government to prove the defendant guilty beyond a reasonable doubt, and that burden of proof never shifts throughout the trial. The law does not require a defendant to prove his/her innocence or to produce any evidence. If you find that the government has proven beyond a reasonable doubt every element of [the] [a particular] offense with which the defendant is charged, it is your duty to find him/her guilty [of that offense]. On the other hand, if you find that the government has failed to prove any element of [the] [a particular] offense beyond a reasonable doubt, you must find the defendant not guilty [of that offense]. As I explain how the trial will proceed, I will refer to the "government" and to the "defense" or the "defendant." When I mention the "government," I am referring to Assistant [United States Attorney] [Attorney General], [Mr.] [Ms.] [name of prosecutor]. When I mention the defendant or the defense, I am referring either to the defendant [Mr.] [Ms.] [name of defendant] or to his/her attorney, [Mr.] [Ms.] name of defense attorney]. As the first step in this trial, the government and the defendant will have an opportunity to make opening statements. The defendant may make an opening statement immediately after the government's opening statement or s/he may wait until the beginning of the defendant's case, or he may choose not to make an opening statement at all. You should understand that the opening statements are not evidence. They are only intended to help you understand the evidence that the lawyers expect will be introduced. After the opening statement or statements, the government will put on what is called its case-in-chief. This means that the government [or name of prosecutor] will call witnesses to the witness stand and ask them questions. This is called direct examination. When the government is finished, the defense may ask questions. This is called cross-examination. When the defense is finished, the government may have brief re-direct examination. After the government presents its evidence, the defendant may present evidence, but s/he is not required to do so. The law does not require a defendant to prove his/her innocence or to produce any evidence. If the defense does put on evidence, [name of defense attorney] will call witnesses to the stand and ask questions on direct examination, [name of prosecutor] will cross-examine, and [name of defense attorney] may have brief re-direct examination. When the defense is finished, the government may offer a rebuttal case, which would operate along the same lines as its case-in-chief. [ The following paragraph should be given when the court gives the final instructions after the closing arguments: At the end of all of the evidence, each side will have an opportunity to make a closing argument in support of its case. The lawyers' closing arguments, just like their opening statements, are not evidence in this case. They are only intended to help you understand the evidence. Finally, at the end of the evidence and after both sides have finished closing arguments, I will tell you in detail about the rules of law that you must follow when you consider what your verdict[s] shall be. Your verdict[s] must be unanimous; that is, all twelve jurors must agree on the verdict[s].]
[ The following paragraph should be given when the court gives the final instructions before the closing arguments: At the end of all the evidence, I will instruct you once more on the rules of law that you are to apply in your deliberations when you retire to consider your verdict in this case. Then each side will have a chance to present closing arguments in support of its case. The statements of the lawyers in their closing arguments, just as in their questions and in their opening statements, are not evidence in this case. They are intended only to help you understand the evidence and what each side claims the evidence shows. Finally, at the end of the closing arguments, I will have a few additional instructions for you before you begin your deliberations. I want to briefly describe my responsibilities as the judge and your responsibilities as the jury. My responsibility is to conduct this trial in an orderly, fair, and efficient manner, to rule on legal questions that come up in the course of the trial, and to instruct you about the law that applies to this case. It is your sworn duty as jurors to accept and apply the law as I state it to you. Your responsibility as jurors is to determine the facts in the case. You--and only you--are the judges of the facts. You alone determine the weight, the effect, and the value of the evidence, as well as the credibility or believability of the witnesses. You must consider and weigh the testimony of all witnesses who appear before you. You alone must decide the extent to which you believe any witness. You must pay very careful attention to the testimony of all of the witnesses because you will not have any transcripts or summaries of the testimony available to you during your deliberations. You will have to rely entirely on your memory [and your notes if you choose to take any]. During this trial, I may rule on motions and objections by the lawyers, make comments to lawyers, question the witnesses, and instruct you on the law. You should not take any of my statements or actions as any indication of my opinion about how you should decide the facts. If you think that somehow I have expressed or even hinted at any opinion as to the facts in this case, you should disregard it. The verdict in this case is your sole and exclusive responsibility. You may consider only the evidence properly admitted in this case. That evidence includes the sworn testimony of witnesses and the exhibits admitted into evidence. If the evidence includes anything other than testimony and exhibits, I will instruct you about these other types of evidence when they are admitted during the trial. During the trial, if the court or a lawyer makes a statement or asks a question that refers to evidence that you remember differently, you should rely on your memory of the evidence during your deliberations. The lawyers in the case may object when the other side asks a question, makes an argument, or offers evidence that the objecting lawyer believes is not properly admissible. You must not hold such objections against the lawyer who makes them or the party s/he represents. It is the lawyer's responsibility to object to evidence that they believe is not admissible. If I sustain an objection to a question asked by a lawyer, the question must be withdrawn, and you must not guess or speculate what the answer to the question would have been. If a question is asked and answered, and I then rule that the answer should be stricken from the record, you must disregard both the question and the answer in your deliberations. You should follow this same rule if any of the exhibits are stricken. You are not permitted to discuss this case with anyone until this case is submitted to you for your decision at the end of my final instructions. This means that, until the case is submitted to you, you may not talk about it even with your fellow jurors. This is because we don't want you making decisions until you've heard all the evidence and the instructions of law. In addition, you may not talk about the case with anyone else. It should go without saying that you
also may not write about the case electronically through any blog, posting, or other communication, including "social networking" sites such as Facebook or Twitter until you have delivered your verdict and the case is over. This is because you must decide the case based on what happens here in the courtroom, not on what someone may or may not tell you outside the courtroom. I'm sure that, when we take our first recess, you will call home or work and tell them you have been selected for a jury. They will undoubtedly ask what kind of case you're sitting on. You may tell them it is a criminal case, but nothing else. Now, when the case is over, you may discuss any part of it with anyone you wish, but until then, you may not do so. Although it is a natural human tendency to talk with people with whom you may come into contact, you must not talk to any of the parties, their attorneys, or any witnesses in this case during the time you serve on this jury. If you encounter anyone connected with the case outside the courtroom, you should avoid having any conversation with them, overhearing their conversation, or having any contact with them at all. For example, if you find yourself in a courthouse corridor, elevator, or any other location where the case is being discussed by attorneys, parties, witnesses, or anyone else, you should immediately leave the area to avoid hearing such discussions. If you do overhear a discussion about the case, you should report that to me as soon as you can. Finally, if you see any of the attorneys or witnesses involved in the case and they turn and walk away from you, they are not being rude; they are merely following the same instruction that I gave to them. It is very unlikely, but if someone tries to talk to you about the case, you should refuse to do so and immediately let me know by telling the clerk or the marshal. Don't tell the other jurors; just let me know, and I'll bring you in to discuss it. Because you must decide this case based only on what occurs in the courtroom, you may not conduct any independent investigation of the law or the facts in the case. That used to mean that you could not conduct any research in books or newspapers or visit the scene of the alleged offense. In this electronic age, it also means you cannot conduct any other kind of research--for example, researching any issue on the internet, asking any questions of anyone via email or text, or otherwise communicating about or investigating the facts or law connected to the case. I want to explain a bit further why there is a ban on internet communications and research concerning the case. Unfortunately courts around the country have occasionally experienced problems with jurors ignoring this rule, sometimes resulting in costly retrials. Generally speaking, these jurors have not sought to corrupt the process, rather they have been seeking additional information to aid them in what is undoubtedly a heavy and solemn responsibility. Nonetheless, there are sound reasons for this rule. In the first place, obviously, not everything one sees on line is true. This includes not only persons responding to whatever postings you may make about the case, but also can involve established websites. For example, a mapping site might not reflect the way a location appeared at the times that are at issue in the case. Furthermore, even items that are technically true can change their meaning and significance based upon context. Both sides are entitled to have the chance to not only dispute or rebut evidence presented by the other side, but also to argue to you how that evidence should be considered within the factual and legal confines of the case. Any secret communications or research by you robs them of those opportunities and can distort the process, sometimes with disastrous results. It is for those reasons, that I instruct you that you should not use the internet to communicate or do research about the case. [ Give Cautionary Instruction on Publicity and Use of the Internet, Instruction 1.202 .] After I submit the case to you, you may discuss it only when I instruct you to do so, and only in the jury room and only in the presence of all your fellow jurors. It is important that you keep an open mind and not decide any issue in the case until after I submit the entire case to you with my final instructions.____________________________________
Comment: The 2011 release incorporated additional instructions about the prohibition against the use of the internet during trial. The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee also incorporated the contents of former Instruction 1.05, Cautionary Instruction Before First Recess--Note, into this preliminary instruction and deleted former 1.05 as a separate instruction. See generally U.S. v. Richardson, 817 F.2d 886, 260 U.S. App. D.C. 163 (1987) (court should give instruction regarding contact before evening recess); Calaway v. U.S., 408 A.2d 1220 (D.C. 1979) (trial court's failure on one occasion to admonish jurors to avoid trial publicity did not affect fairness of trial). The D.C. Court of Appeals has made clear that the government is not required to give an opening statement in either a jury or a non-jury trial. See Jackson v. U.S., 515 A.2d 1133, 1134 (D.C. 1986) ("Nor is there a requirement in the common law that a prosecutor make an opening statement, even in a jury trial, although it has long been assumed that the prosecutor would make such a statement."). As a result, the instruction states that the government and the defendant "will have an opportunity to make opening statements." Although the Committee also assumes that the government generally will give an opening, if it does not, the wording of the instruction may need to be slightly modified. The Court also has held that the defendant has a right to make an opening statement in a jury trial. See Hampton v. U.S., 269 A.2d 441, 443 (D.C. 1970) (We "hold, that in a criminal case tried to a jury the defendant has the right to make an opening statement, and that the effective exercise of that right requires that he be allowed the right to withhold making his opening until the close of the government's case."). The 2008 release also added headings for the bracketed paragraphs describing the order of closing arguments and final instructions because some judges give instructions before closing arguments and some instruct after closings. The 2002 revision added text explaining what the juror should do if s/he recognizes a witness or party connected to the case. The Committee concluded that it was useful to include this language in the court's preliminary instruction to assure that the court is alerted as soon as possible during a trial if a juror knows a witness or someone else connected with the case. The court can then immediately take steps to cure the problem, including voir dire of the juror in question and replacement of that juror by an alternate if necessary. See Lyons v. U.S., 683 A.2d 1066 (D.C. 1996) (en banc) (prosecutor's inadvertent failure to identify detective as a witness, when a juror had been acquainted with the detective, resulted in an abridgement of defendant's right to peremptory challenge; but was not plain error). The language, "it is your duty to" find the defendant guilty if the government has proved each element beyond a reasonable doubt has been the law in Superior Court since 1976. Watts v. U.S., 362 A.2d 706 (D.C. 1976) (en banc) (approving an instruction prescribing that the jury be told that where it finds the government to have proved each element of the offense beyond a reasonable doubt, it is the jury's "duty" to find the defendant guilty). See also Baptist v. U.S., 466 A.2d 452 (D.C. 1983) (reaffirming Watts). The U.S. Court of Appeals for the District of Columbia Circuit addressed this issue in U.S. v. Pierre, 974 F.2d 1355, 298 U.S. App. D.C. 5 (1992) , and also concluded that "it was proper for the district court to instruct the jury that it had a duty to find appellant guilty if the government proved beyond a reasonable doubt every element of the offense." Detailed explanations of judicial notice, stipulations, and depositions are not included in this instruction. Instead, jurors are told that if such evidence is admitted during the trial, they will receive an explanation at the appropriate time. See Instruction 1.103. The instruction defining "stipulations," "depositions," and "judicial notice" may be given if such evidence is admitted at trial.
Although this instruction is lengthy, the Committee continues to be strongly of the view, first expressed by the late Judge E. Barrett Prettyman, that it is preferable for the trial judge to give jurors a basic explanation of their duties and responsibilities at the outset of the trial--especially where jurors may be sitting in their first criminal case. See Barrett E. Prettyman, Jury Instructions--First or Last?, 46 A.B.A.J. 1066 (1960). See also U.S. v. Bynum, 566 F.2d 914, 923 (5th Cir. 1978) (giving the jury an instruction similar to Instruction 1.03 was proper and desirable). Where a judge feels it appropriate, selected portions of this instruction may be deleted at the outset of trial and incorporated only in the final instructions. Similarly, other judges may wish to incorporate portions of other instructions into this introductory instruction. This instruction consolidates relevant excerpts of the instructions on Cautionary Instruction on Publicity and Use of the Internet (1.202), Function of the Court (2.101), Function of the Jury (2.102), Jury's Recollection Controls (2.103), Evidence in the Case--Judicial Notice, Stipulations, Depositions (2.104), Statements of Counsel (2.105), Indictment or Information Not Evidence (2.106), Burden of Proof--Presumption of Innocence (2.107), Reasonable Doubt (2.108), Nature of Charges Not to be Considered (2.110), Inadmissible and Stricken Evidence (2.112), Credibility of Witnesses (2.200), and the instructions on substantive offenses. Cross references: No. 1.103, Definitions; No. 1.105, Notetaking by Jurors; No. 1.106, Questions By Jurors; No. 1.107, Preliminary Instruction to Jury Where Identity of Alternates Is Not Disclosed; No. 1.108, A Juror's Recognition of a Witness or Other Party Connected to the Case; No. 1.112, Retrial of a Case; No. 1.202, Cautionary Instruction on Publicity and Use of the Internet.
Page 11
4 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.103 Instruction 1.103 DEFINITIONS
A. STIPULATION OF FACT The government and the defendant[s] may stipulate--that is, agree--to certain facts. You should consider any stipulation of fact to be undisputed evidence. B. STIPULATION OF TESTIMONY The government and the defendant[s] may stipulate--that is, agree--to the testimony a particular witness would have given if s/he had testified in this case. You should consider this stipulated testimony to be exactly what this witness would have said had he or she testified here. C. DEPOSITION A deposition is the sworn testimony given by a witness before trial. The witness is placed under oath to tell the truth, and lawyers for each party may ask questions. The questions and answers are recorded by a court reporter. You may consider deposition testimony in the same way you would consider testimony actually given in court. D. JUDICIAL NOTICE I may take what is called "judicial notice" of public acts, places, facts, and events that I consider to be matters of common knowledge or matters that can be determined easily through undisputed sources. When I take judicial notice of a particular fact, you may [if you choose to do so,] regard that fact as proven evidence. [Because you are the sole judges of the facts, however, you are not required to accept any fact that is judicially noted.] ____________________________________ Comment:
The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction is designed to assist the court in defining certain terms for the jury. See Poulnot v. D.C., 608 A.2d 134 (D.C. 1992) (after discussion of when judicial notice is appropriate, court concluded that trial court erred in taking judicial notice of specific absorption rates of alcohol). The court should give the relevant portion of this instruction when appropriate during trial. The bracketed language in the judicial notice instruction advises the jurors that they are not required to regard matters to which judicial notice is taken as proven evidence. This portion of the instruction must be given in U.S. District Court. See Fed. R. Evid. 201(g); U.S. v. Jones, 580 F.2d 219 (6th Cir. 1978) (given Rule 201(g), the jury in a criminal case is not required to accept judicially noticed facts as proven). The D.C. Court of Appeals apparently has not addressed this issue. Cross references: No. 1.102, Preliminary Instruction Before Trial; No. 2.104, Evidence in the Case--Judicial Notice, Stipulations, Depositions.
Page 13
5 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.104 Instruction 1.104 QUESTION NOT EVIDENCE
Sometimes a lawyer's question suggests the existence of a fact, but the lawyer's question alone is not evidence. Whether or not something is in evidence depends on the witness's answer to the lawyer's question. For example, the lawyer may ask, "The light was green, wasn't it?" and the witness answers, "No." At that point, standing alone, there is no evidence that the light was green. If on the other hand, the witness answers, "Yes," there would be evidence that the light was green.____________________________________ Comment: The Fifth Edition made no changes to this instruction except to remove brackets around the example because the Committee concluded the instruction was better understood with the inclusion of the example. See generally 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 12.08 (5th ed. 2000). This instruction should be given both during trial and in the court's final instructions, where appropriate. See Jenkins v. U.S., 870 A.2d 27, 33 (D.C. 2005) ("By reciting [former] Standard Instruction 1.07, the trial court stated clearly that facts are established by a witness's answer, and not by a lawyer's question. This was a direct, balanced, and neutral response to the jury's first question, as the law requires."); Porter v. U.S., 561 A.2d 994, 996 (D.C. 1989) ("The party posing the question must proffer to the court some facts which support a genuine belief that the witness is biased in the manner asserted ..."); Ali v. United States, 520 A.2d 306 (D.C. 1987) (government may not attempt to manufacture evidence by creating an impression in the jurors' minds through questions that imply the existence of facts; such questions must be grounded in a good faith belief that those facts are susceptible to proof by competent evidence); Davies v. U.S., 476 A.2d 658, 661-62 (D.C. 1984) (trial court found that the prosecutor had a good faith basis for cross-examination, and later instructed the jury that the attorney's questions were not evidence); U.S. v. Sampol, 636 F.2d 621, 658, 204 U.S. App. D.C. 349, 386 (1980) ("The general rule ... is that 'the questioner must be in possession of some facts which support a genuine belief that the witness
committed the offense or the degrading act to which the questioning relates.' "). For a discussion of how a question is not evidence, see U.S. v. Watson, 171 F.3d 695 (D.C. Cir. 1999) (giving of this instruction not sufficient to cure error caused by prosecutor's closing argument which misstated and misquoted witness's testimony; prosecutor's compound question resulted in an ambiguous answer and, thus, the prosecutor's statement in closing that the defense witness had conceded that the owner of the car was the defendant's girlfriend was, in this case, reversible error).
Page 15
6 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.105 Instruction 1.105 NOTETAKING BY JURORS
A. PRELIMINARY INSTRUCTION WHEN NOTETAKING IS PERMITTED When you took your seats, you probably noticed that each of you had a notebook and pencil waiting for you. That is because I permit jurors to take notes during trial if they wish. Whether you take notes or not is entirely up to you. Many people find that taking notes helps them remember testimony and evidence; others find it distracts them from listening to the witnesses. You will be permitted to take your notebooks back with you into the jury room during deliberations. You should remember, however, that your notes are only an aid to your memory. They are not evidence in the case, and they should not replace your own memory of the evidence. Those jurors who do not take notes should rely on their own memory of the evidence and should not be influenced by another juror's notes. Other than during your deliberations, the notebooks will remain locked in the courtroom during recesses and overnight. You will not be able to take the notebooks with you as you come and go and you will not be permitted to take them home with you overnight. At the end of the trial, when you come back to the courtroom to deliver your verdict, your notebooks will be collected, and the pages torn out and destroyed. No one, including myself, will ever look at any notes you have taken, so you may feel free to write whatever you wish. B. FINAL INSTRUCTION WHEN NOTETAKING IS PERMITTED During the trial, I have permitted those jurors who wanted to do so to take notes. You may take your notebooks with you to the jury room and use them during your deliberations if you wish. As I told you at the beginning of the trial, your notes are only to be an aid to your memory. They are not evidence in the case, and they should not replace your own memory of the evidence. Those jurors who have not taken notes should rely on their own memory of the evidence. The notes are intended to be for the notetaker's own personal use. ____________________________________ Comment:
In Yeager v. Greene, 502 A.2d 980 (D.C. 1985) , the D.C. Court of Appeals upheld the discretion of the judge to permit jurors to pose written questions to witnesses and sub silentio upheld a trial judge's discretion to permit juror notetaking. See also Murphy v. U.S., 670 A.2d 1361 (D.C. 1996) (no abuse of discretion in the trial court's decision to permit jurors to take notes and use them in their deliberations). Federal appellate courts that have considered the question have also held that it is within a trial judge's discretion to allow juror notetaking: U.S. v. Oppon, 863 F.2d 141 (1st Cir. 1988) ; U.S. v. Bertolotti, 529 F.2d 149 (2d Cir. 1975) ; U.S. v. Maclean, 578 F.2d 64 (3d Cir. 1978) ; U.S. v. Polowichak, 783 F.2d 410 (4th Cir. 1986) ; Fortenberry v. Maggio, 664 F.2d 1288 (5th Cir. 1982) ; U.S. v. Johnson, 584 F.2d 148 (6th Cir. 1978) ; U.S. v. Braverman, 522 F.2d 218 (7th Cir. 1975) ; U.S. v. Bassler, 651 F.2d 600 (8th Cir. 1981) ; U.S. v. Vaccaro, 816 F.2d 443 (9th Cir. 1987) ; U.S. v. Riebold, 557 F.2d 697 (10th Cir. 1977) . Most state courts recognize a judge's discretion to permit juror notetaking as well. See Sonja Larsen, Taking and Use of Trial Notes by Jury, 36 A.L.R.5th 255 (1996) . If the court does permit juror notetaking, it may wish to utilize this instruction, which is adopted from an instruction cited favorably in Yeager, 502 A.2d at 988-89 n.4 . The judge should give Part A of this instruction at the beginning of trials where notetaking is permitted and Part B at the conclusion of such trials. Some courts choose to give the instruction immediately after giving Instruction 2.103, Jury's Recollection Controls. The 2008 release modified this instruction to simplify the language and make it it easier to understand. Because most courts now permit juror notetaking, the 2008 release also modified this instruction to delete Part C for use by courts that did not permit notetaking. If courts that do not permit notetaking decide that some explanation is necessary, they may wish to give the following instruction:
INSTRUCTION WHEN NOTETAKING IS NOT PERMITTED Some of you may have served as jurors in cases where judges have permitted you to take notes during the trial. However, I do not follow that practice. I do not permit jurors to take notes during the trial because I think it is important for you to watch the witnesses carefully as they testify and to remember what they say. Your observations of the way a witness testifies may in fact be one of the most important factors you will use in deciding whether or not to believe a witness. Because I believe it is extremely difficult to take proper notes and hear all of what the witness says and watch how he or she says it, I do not permit jurors to take notes.
Page 17
7 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.106 Instruction 1.106 QUESTIONS BY JURORS
Generally, only the lawyers and I ask witnesses questions. Occasionally, however, a juror thinks that an important question has not been asked. As a juror, you must be an impartial judge of the facts, not an advocate for either side in this proceeding. While I am not encouraging any of you to pose questions to the witnesses, if during the course of the trial you feel an important question has not been asked, you may write out that question on a piece of paper. You may not ask a question orally at any time during a trial. In addition, you may not discuss the questions with any fellow jurors or anyone else. You should submit your question to the court after the lawyers are finished with their questioning of the witness, but before the witness leaves the witness stand. Once a witness has left the witness stand and been excused, that witness will not be recalled to respond to a juror's question. After consulting with the lawyers, I will determine whether the question relates to a fact or facts about which the witness can properly testify. If it is proper, I will ask the question. If I do not ask the question, that means I have decided that the question is not a legally proper one. The juror posing it should not guess or speculate about what the answer might have been, and must not consider the question or discuss it with other jurors during deliberations. If I decide the question relates only to a legal issue, I may decide to wait until final instructions and answer the question then.____________________________________ Comment: In the Fifth Edition, the Committee retained the admonition to jurors that they must remain impartial but deleted the rest of the final paragraph of the instruction which had informed the jurors that their questions were only to help understand the testimony, clarify evidence, or seek information; but not to discredit or argue with a witness. The Committee decided that portion of the paragraph was misleading in that it set up a false dichotomy between "getting information" and assessing the credibility of the witness who is providing the information. See Davis v. Alaska, 415 U.S. 308, 316 (1974) ("truth" of a witness's testimony is ascertained not only by "delving into the witness' story" but also by assessing whether the witness should be discredited, for reasons of bias or otherwise).
In Yeager v. Greene, 502 A.2d 980 (D.C. 1985) , the District of Columbia Court of Appeals upheld a trial court's exercise of discretion to permit jurors to pose written questions to witnesses. Thus, a trial court in the District of Columbia Superior Court has discretion to permit jurors to pose written questions to witnesses during trial. Other federal and state courts have also approved this practice. See Opinion of Superior Court Judge Henry Greene in Yeager, 502 A.2d 980 at n.18; see generally Plummer v. U.S., 870 A.2d 539, 543 (D.C. 2005) ("procedures used by the trial judge ... including her explanation of the process to the jurors, were essentially the same as those used by the judge in Yeager, and at least implicitly approved by this court"; noting that it might have been better if the court had decided not to ask certain questions but finding no reversible error). The U.S. Court of Appeals for the D.C. Circuit addressed this issue in U.S. v. Rawlings, 300 U.S. App. D.C. 380, 522 F.3d 403 (D.C. Cir. 2008) , and advised trial judges to permit this practice only sparingly and to consider on a case-by-case basis whether and to what extent jury questions are appropriate, balancing the potential benefit of such questions against the dangers. The Committee recommends that if a juror's question is posed by the court, the attorneys be permitted to ask follow-up questions.
Page 19
8 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.107 Instruction 1.107 PRELIMINARY INSTRUCTION TO JURY WHERE IDENTITY OF ALTERNATES IS NOT DISCLOSED
You have probably noticed that there are [fourteen (14)] [insert number] of you sitting in the jury box. Only twelve (12) of you will retire to deliberate in this matter. Before any of you even entered the courtroom, we randomly selected the alternates' seats. I will not disclose who the alternate jurors are until the end of my final instructions just before you begin your deliberations. As any seat might turn out to be an alternate's seat, it is important that each of you think of yourselves as regular jurors during this trial, and that all of you give this case your fullest and most serious attention.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The bracketed language may be used when the court has more than two alternates. This instruction is designed for cases where the trial court has decided not to disclose the identity of the alternate jurors at the beginning of the trial. There is some thought that by avoiding pre-designated alternates, all jurors may feel more a part of the process and might be more likely to pay better attention. Although alternates are not identified to the jury, they must be identified to counsel, and be selected in accordance with D.C. Code 23-105, Super. Ct. R. Crim. P. 24, and Fed. R. Crim. P. 24(c).
Page 20
9 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.108 Instruction 1.108 A JUROR'S RECOGNITION OF A WITNESS OR OTHER PARTY CONNECTED TO THE CASE
At the beginning of the jury selection process, you were introduced to some witnesses in person. Others were identified to you only by name. If, at any time during this trial, you suddenly realize that you recognize or might know any witness, lawyer, someone who is mentioned in the testimony or evidence, or anyone else connected with this case in any way, you should raise your hand immediately and ask to speak with me.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The first two sentences may need to be modified slightly depending upon how the witnesses are identified for the jury. This instruction informs the jurors of the need to alert the court when they realize during the trial that they know a witness or someone connected to the case. See Lyons v. U.S., 683 A.2d 1066 (D.C. 1996) (en banc) (prosecutor's inadvertent failure to identify detective as a witness, when a juror had been acquainted with the detective, resulted in an abridgement of the defendant's right to peremptory challenge; but was not plain error). This instruction can either be inserted in Instruction 1.102, Preliminary Instruction Before Trial, or given at any other appropriate time. This instruction is intended to assure that the court is alerted as soon as possible during a trial that a juror knows a witness or someone otherwise connected with the case. The court can then immediately take steps to cure the problem, including voir dire of the juror in question and replacement of that juror by an alternate if necessary.
Cross reference: No. 1.102, Preliminary Instruction Before Trial.
Page 22
10 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.109 Instruction 1.109 ROLE OF INTERPRETER FOR JUROR--PRELIMINARY INSTRUCTION
During trial, juror in seat number [insert number] will be assisted by a sign-language interpreter. The interpreter is not a member of the jury and is not to participate in any way other than as necessary to interpret for juror in seat number [insert number]. Even if you can communicate in both English and sign language, you must leave all interpretation to the court-appointed sign-language interpreter during the trial. The interpreter is the only person permitted to interpret for the juror. You should not speak to the interpreter, not even socially in the jury room on breaks in the trial. The interpreter's job is to assist juror in seat number [insert number] and s/he will not think you are rude for not speaking to him/her and you should not think the interpreter rude for not speaking to you, other than in his/her role as interpreter.____________________________________ Comment: This is a new instruction in the Fifth Edition. A juror's use of the services of an interpreter has not been addressed previously in the jury instructions. Cross references: Instruction 1.110, Witness's or Defendant's Use of Interpreter--Preliminary Instruction; Instruction 1.204, Witness's or Defendant's Use of Interpreter--Before Witness or Defendant Testifies; Instruction 2.506, Role of Interpreter for Juror--Final Instruction; Instruction 2.507, Witness's or Defendant's Use of Interpreter--Final Instruction.
Page 23
11 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.110 Instruction 1.110 WITNESS'S OR DEFENDANT'S USE OF INTERPRETER--PRELIMINARY INSTRUCTION
[A witness] [Name of defendant] [may] [will] use the services of a [name of foreign language] [sign-language] interpreter in this trial. The interpreter is provided by the court and is a neutral participant in this trial. You should not be biased for or against anyone who uses an interpreter. Do not permit the fact that [a witness] [name of defendant] is using the services of an interpreter to influence you in any way.____________________________________ Comment: This is a new instruction in the Fifth Edition. The issue of a witness's or defendant's use of an interpreter has not been addressed previously in the Jury Instructions. The right to the services of an interpreter in the District of Columbia is governed by the "Interpreters for Hearing-Impaired and Non-English Speaking Persons Act of 1987." D.C. Official Code 2-1901 et seq. (2001). See Rivera v. U.S., 941 A.2d 434, 442 (D.C. 2008) (citing Ramirez v. U.S., 877 A.2d 1040, 1042 n. 2 (D.C. 2005)) . Under the federal statute, interpreters are also provided to those who speak only or primarily a language other than English or who are hearing impaired when parties are brought before the court in actions instituted by the United States and the court assesses the party to need such assistance. 28 U.S.C. 1827(d)(1). When a case involves a witness or defendant who will be communicating through an interpreter, it may be appropriate to ascertain during voir dire whether prospective jurors speak the language other than English that will be used in the proceeding, and whether they harbor any views, positive or negative, about people who cannot communicate readily in English.
Cross references: No. 1.109, Role of Interpreter for Juror--Preliminary Instruction; No. 1.204, Witness's or Defendant's Use of Interpreter--Before Witness or Defendant Testifies; No. 2.506, Role of Interpreter for Juror--Final Instruction; No. 2.507, Witness's or Defendant's Use of Interpreter--Final Instruction.
Page 25
12 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.111 Instruction 1.111 DEFENDANT'S SELF-REPRESENTATION
[Name of defendant] has the constitutional right to choose not to have counsel and to represent himself/herself. [This includes the right to discharge counsel in the middle of a trial and represent himself/herself.] You are to draw no inference whatsoever from the defendant's decision to represent himself/herself [with the help of an attorney advisor].____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The Fifth Edition made no changes to this instruction. This instruction should be given at the outset of trial where a defendant chooses to represent himself. The bracketed language in the second sentence should be used when a defendant discharges counsel during trial and subsequently represents himself. Self-representation is a right only if asserted prior to trial and not during trial. U.S. v. Washington, 359 U.S. App. D.C. 185 . 353 F.3d 42, 46 (2004) . In assessing a midtrial request for self-representation, the court should weigh prejudice to defendant against delay, disruption, and inconvenience to the trial. Garris v. U.S., 465 A.2d 817, 820 (D.C. 1983) . The bracketed language in the last sentence should be used when a defendant is appointed an attorney advisor. See generally Faretta v. California, 422 U.S. 806, 834-35 (1975) (although Sixth Amendment grants a defendant the right to represent him or herself at trial; trial judge may terminate self-representation by an accused who deliberately engages in serious and obstructionist misconduct, and may appoint standby counsel, even over defendant's objection, to assist defendant; defendant should be made aware of dangers and disadvantages of self-representation before waiving right to counsel); U.S. v. Gewin, 471 F.3d 197, 199, 374 U.S. App. D.C. 74 (2006) (trial court must engage defendant in "short discussion on the record" about dangers and disadvantages of self-representation before defendant may validly waive right to
counsel); McClinton v. U.S., 817 A.2d 844, 849, 855 (D.C. 2003) (before defendant waives right to counsel, court should inform defendant about nature of charges, range of permissible punishments, possible defenses, and circumstances in mitigation of charges); U.S. v. Weisz, 718 F.2d 413, 231 U.S. App. D.C. 1 (1983) (the right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se); Hsu v. United States, 392 A.2d 972, 983-84 (D.C. 1978) (before defendant waives right to counsel, court should inform defendant about possible pitfalls of self-representation, including consequences of taking, or not taking, the witness stand, inadequately conducting voir dire, and failing to make objections to evidence and jury instructions); Gurley v. U.S., 353 A.2d 8, 11 (D.C. 1976) (conviction reversed where defendant was without counsel at trial and record did not reflect waiver of right to counsel); U.S. v. Dougherty, 473 F.2d 1113, 1124, 154 U.S. App. D.C. 76, 87 (1972) (dicta indicating defendant may constructively waive his right to self-representation if he engages in disruptive behavior); McKaskle v. Wiggins, 465 U.S. 168, 176 (1984) (Faretta does not absolutely bar stand-by counsel's unsolicited participation in trial). But see U.S. v. Tarantino, 846 F.2d 1384, 269 U.S. App. D.C. 398 (1988) (a defendant does not have a constitutional right under the Sixth Amendment to combine self-representation with representation by counsel).
Page 27
13 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial A. Before Trial 1-I Criminal Jury Instructions for DC Instruction 1.112 Instruction 1.112 RETRIAL OF A CASE
The fact that [name of defendant] has been tried before should be of no concern to you and should not influence your deliberations in any way. You must reach your verdict based only on the evidence presented in this trial.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction should be included in the court's preliminary instruction before trial only where it is apparent at the outset of the second trial that proceedings during the first trial will be mentioned. See 1.102, Preliminary Instruction Before Trial. Where no reference to the first trial is anticipated, there is no need for the instruction and it should not be given unless such a reference unexpectedly occurs. See Carsey v. U.S., 392 F.2d 810, 812, 129 U.S. App. D.C. 205, 207 (1967) (fair trial most likely achieved if judge gives cautionary instruction at the outset of a retrial if the first trial is going to be mentioned). See generally 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 10.08 (5th ed. 2000); Arthur v. Bordenkircher, 715 F.2d 118, 119 (4th Cir. 1983) (defendant in state trial was denied effective assistance of counsel when his attorney consented to an instruction stating that he had been tried before and the prior conviction had been reversed on appeal).
Page 28
14 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial B. During Trial 1-I Criminal Jury Instructions for DC Instruction 1.200 Instruction 1.200 LIMITING INSTRUCTIONS--NOTE
I. WHEN REQUESTED BY A PARTY Previous editions have listed limiting instructions which may be given both during trial and as part of final instructions in a section concerning mid-trial instructions. Because of the importance assigned to giving such instructions as part of the final instructions, the Committee has elected to place such instructions in the sections on final instructions. The Committee suggests that it may be appropriate to give the below instructions during the trial, as well as during final instructions, when a party requests them and the circumstances warrant: 2.211 Effect of Refusal of Witness to Answer Question* 2.212 2.214 2.215 2.216, Alt. A 2.218 2.220 2.308 2.310 2.311 2.321 Invocation of Fifth Amendment Privilege Against Self-Incrimination Cross-Examination of Character Witness* Expert Testimony Evaluation of Prior Inconsistent Statement of a Witness* Impeachment by Proof of Conviction of a Crime--Witness Impeachment by Proof of Conviction of a Crime--Defendant Evidence Admitted Against One Defendant Only Transcripts of Tape Recordings* Translation of Foreign Language Document or Recording Other Crimes Evidence*
* Instructions which existing case law suggests should be given upon request. II. SUA SPONTE INSTRUCTIONS Decisions by both the U.S. Court of Appeals for the District of Columbia and the District of Columbia Court of Appeals
have significantly affected the trial judge's obligation to give sua sponte limiting instructions. Superior Court
The District of Columbia Court of Appeals has recommended, as a general rule, that limiting instructions be given promptly sua sponte, if necessary. Williams v. U.S., 549 A.2d 328, 334 n.14 (D.C. 1988) ; Jones v. U.S., 477 A.2d 231, 242 (D.C. 1984) ; Sweet v. U.S., 449 A.2d 315, 319 (D.C. 1982) . The District of Columbia Court of Appeals, however, has refused to adopt a per se rule that the trial court must give an immediate limiting instruction sua sponte whenever the issue arises. Johnson v. U.S., 387 A.2d 1084, 1087 (D.C. 1978) (en banc) (overruling in part Lofty v. U.S., 277 A.2d 99 (D.C. 1971)) . To the contrary, the Court sitting en banc, has held "that in any case--without exception--in which evidence has been properly admitted for a specific purpose and the defense has not requested an instruction limiting jury consideration of it to that use, the trial court's failure to instruct in that manner on its own initiative is reviewable only for plain error." Gilliam v. U.S, 707 A.2d 784, 785 (D.C. 1998) (en banc). Thus, the failure to give a sua sponte instruction must be "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Jones v. U.S., 477 A.2d 231, 242 (D.C. 1984) (quoting Watts v. U.S., 362 A.2d 706, 709 (D.C. 1976)) . See also Nixon v. U.S., 728 A.2d 582 (D.C. 1999) (trial court's failure sua sponte to give a limiting instruction regarding the purpose for which an expert's testimony was received did not constitute reversible error); Hill v. U.S., 600 A.2d 58, 63-64 (D.C. 1991) (trial court's failure sua sponte to instruct the jury on the limited purpose for which the Drew evidence was admitted did not constitute plain error); Thompson v. U.S., 546 A.2d 414, 426 (D.C. 1988) (Limiting instructions will "reduce, if not dissipate, the danger of unfairness and prejudice. In weighing probative value against prejudicial effect, courts should inquire as to whether the risk of prejudice has been or can be meaningfully reduced by the trial judge's instructions."); Stewart v. U.S., 490 A.2d 619, 625 (D.C. 1985) (trial court did not commit plain error when it failed sua sponte to instruct the jury on the limited purpose for which a prior inconsistent statement was admitted); but see Lucas v. U.S., 436 A.2d 1282, 1285 (D.C. 1981) (reversing after trial court failed sua sponte to give a limiting instruction concerning the government's impeachment of its own witness finding that it was "impossible to conclude that substantial rights were not affected"). U.S. District Court
The U.S. Court of Appeals in U.S. v. Rhodes, 62 F.3d 1449, 314 U.S. App. D.C. 117 (1995) , vacated on other grounds, 517 U.S. 1164 (1996) , made clear that in federal court, Fed. R. Evid. 105 places the burden upon defense counsel to request a limiting instruction. "[B]ecause Rule 105 commands that an appropriate limiting instruction shall be available 'upon request,' we conclude that we cannot impose on district courts the obligation to give such an instruction sua sponte." Id. at 1454 . The Rhodes Court explicitly noted that to the extent that its holding was inconsistent with U.S. v. Copelin, 996 F.2d 379, 302 U.S. App. D.C. 113 (1993) , and like cases, they were overruled. See also U.S. v. Ruffin, 40 F.3d 1296, 309 U.S. App. D.C. 265 (1994) (if the court conditionally admits Rule 404(b) evidence and the condition is not satisfied, the burden rests on the opposing party to renew its objection; court need not strike the evidence and instruct the jury sua sponte); U.S. v. Lewis, 693 F.2d 189, 224 U.S. App. D.C. 74 (1982) (interpreting U.S. v. McClain, 440 F.2d 241, 142 U.S. App. D.C. 213 (1971) , and its progeny, the court decided that no per se rule existed requiring a trial judge to give an immediate, unrequested cautionary instruction. Rather, trial counsel must request a limiting instruction whenever the need exists; reversible error arises if the trial court fails to grant such a request); 1 Weinstein, Evidence 105[5] (1986) (discussing Fed. R. Evid. 105).
Page 30
15 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial B. During Trial 1-I Criminal Jury Instructions for DC Instruction 1.201 Instruction 1.201 CAUTIONARY INSTRUCTION--PHOTOGRAPHS OF THE DEFENDANT
ALTERNATIVE A: PHOTOGRAPHS GENERALLY You have heard evidence concerning photographs of [name of defendant]. The police can obtain photographs of people in many different ways, such as from newspapers, school records and yearbooks, employers, driver's license files, and friends or members of a person's family. Therefore, simply because the police have obtained a person's picture does not mean that s/he has ever been arrested or charged with a crime. ALTERNATIVE B: PHOTOGRAPHS THAT ARE CLEARLY ARREST PHOTOGRAPHS I have admitted into evidence an arrest photograph of [name of defendant] that was [part of an array of photographs] shown to witness[es] in this case. As I am certain you know, an arrest is not the same thing as a conviction for a crime. Indeed, charges may be dropped against arrested persons even before they are brought into court. Therefore, simply because the police have a person's picture does not mean that s/he has ever been convicted of a crime. The photograph was admitted into evidence because viewing the actual photograph[s] shown to the witness[es] may assist you in determining the accuracy of the [witness's] [witnesses'] identification and for no other reason. You may not consider [name of defendant]'s prior arrest as any evidence of his/her guilt as to this or any other crime. Furthermore, you must not speculate in any way as to why s/he might have been arrested and what if anything happened to the charge. ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. These instructions should be given only at the defendant's request in circumstances where photographs of the defendant have been held admissible.
The admissibility of photographs depends upon the circumstances of each case. As to possible circumstances involving admissibility of photographs of the defendant, see U.S. v. Jackson, 509 F.2d 499, 166 U.S. App. D.C. 166 (1974) ; Barnes v. U.S., 365 F.2d 509, 124 U.S. App. D.C. 318 (1966) (in this case, introduction of mug shots, even where altered by adhesive tape, was prejudicial error); Williams v. U.S., 481 A.2d 1303 (D.C. 1984) (admission of "mug shots" is permissible if government has a demonstrable need to introduce photographs, the manner of their introduction does not draw attention to their source and the photographs in and of themselves do not imply prior criminal record); Khaalis v. U.S., 408 A.2d 313 (D.C. 1979) (no error in use of "mug shots" when care was taken to avoid the photos being seen by the jury and the photos were never introduced into evidence or otherwise seen by the jury); Letsinger v. U.S., 402 A.2d 411 (D.C. 1979) (admission of a defendant's "mug shots" not reversible error if: (1) government has a demonstrable need to introduce such photographs, (2) photographs in and of themselves do not imply a criminal record, and (3) manner of their introduction does not draw attention to their source); Brown v. U.S., 387 A.2d 728 (D.C. 1978) (even though references to "photographs" had slight if any probative value and were outweighed by the prejudice to the defendant which might have conveyed to the jury the impression that the defendant had a criminal record, the testimonial references to "photographs" did not rise to the level of plain error); Williams v. U.S., 382 A.2d 1 (D.C. 1978) (reversible error to introduce mug shots into evidence where photograph conveyed inherent implication of criminal activity and government did not need photograph to establish fair pretrial identification); Wilson v. U.S., 357 A.2d 861 (D.C. 1976) . Cf. Coleman v. U.S., 379 A.2d 710 (D.C. 1977) . The 2002 edition deleted references to "mug shots" because there are virtually no circumstances where any reference to the term "mug shot" is appropriate. Alternative instructions are provided. Alternative A should be used, at a defendant's request, when the photograph is not clearly an arrest photograph. The text of this instruction has also been changed to add categories of innocent sources from which photographs might be obtained and to indicate that the police "obtained" rather than "had" the defendant's photograph, thus ameliorating the inference that the defendant's photograph was part of the police files at the time of his or her arrest. Alternative B is provided for those cases in which the court has decided that the photographs are admissible and the photographs are clearly arrest photographs. It should be given only at the defendant's request. Cross reference: No. 1.200, Limiting Instructions--Note.
Page 32
16 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial B. During Trial 1-I Criminal Jury Instructions for DC Instruction 1.202 Instruction 1.202 CAUTIONARY INSTRUCTION ON PUBLICITY AND USE OF THE INTERNET
In some cases, although not necessarily this one, there may be reports in the newspaper or on the radio, internet, or television concerning the case while the trial is going on. If there should be such media coverage in this case, you may be tempted to read, listen to, or watch it. You must not read, listen to, or watch such reports because you must decide this case solely on the evidence presented in this courtroom. If any publicity about this trial inadvertently comes to your attention during trial, do not discuss it with other jurors or anyone else. Just let me or my clerk know as soon after it happens as you can, and I will then briefly discuss it with you. You may not communicate with anyone not on the jury about this case. This includes any electronic communication such as email or text or any blogging about the case. In addition, you may not conduct any independent investigation during deliberations. This means you may not conduct any research in person or electronically via the internet or in another way.____________________________________ Comment: The Fifth Edition added the second paragraph to this instruction to emphasize to the jurors that they must not use the internet to investigate anything in connection with the case or to communicate with anyone about the case. With reference to such an instruction generally, see U.S. v. Richardson, 817 F.2d 886, 260 U.S. App. D.C. 163 (1987) ; Seeney v. U.S., 563 A.2d 1081 (D.C. 1989) (while the better practice would be to repeat such instructions, at least briefly, before overnight recesses and especially at the start of a weekend, failure to do so did not constitute plain error); Schoeneman v. U.S., 317 F.2d 173, 178, 115 U.S. App. D.C. 110, 115 (1963) ; 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 10.02, pp. 51-53, 11.08, pp. 92-96 (5th ed. 2000). See also Welch v. U.S., 466 A.2d 829 (D.C. 1983) (sequestering of jury during trial and deliberations, together with careful voir dire examinations, minimized impact of pre-trial publicity and provided defendant with an impartial jury which was able to
decide the case solely on the evidence presented at trial); Calaway v. U.S., 408 A.2d 1220 (D.C. 1979) (trial court which continually gave jury publicity warnings in four and one-half days of trial but failed to warn the jury on first full day of deliberations, satisfied rule that trial court should invariably admonish jurors to avoid trial publicity in nonsequestered jury cases, and court's omission of such an instruction on one occasion during trial did not affect fairness of the trial); Khaalis v. U.S., 408 A.2d 313 (D.C. 1979) (in prosecutions for murder, kidnapping, and assault arising out of the "Hanafi" take-overs of three buildings, the trial court did everything in its power to minimize the effect on the jury of prejudicial publicity during trial by sequestering the jury immediately upon its selection and instructing the jury not to read about or discuss the case). Cross reference: No. 1.102, Preliminary Instruction Before Trial.
Page 34
17 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial B. During Trial 1-I Criminal Jury Instructions for DC Instruction 1.203 Instruction 1.203 WHERE CHARGES ARE DISMISSED MID-TRIAL
A. DISMISSAL OF CHARGES AGAINST CO-DEFENDANT The charges against [name of co-defendant(s)] are no longer pending and thus are of no further concern to you. These charges should not in any way influence your verdict as to the remaining defendant(s). [You must base your verdict only on the evidence that has been admitted that relates to the remaining defendant(s).] B. DISMISSAL OF SOME, BUT NOT ALL, CHARGES AGAINST THE DEFENDANT Certain charges against [name of defendant] are no longer pending and thus are of no further concern to you. The charges that remain against [name of defendant] are [list remaining charges]. The fact that other charges are no longer pending should not in any way influence your verdict as to the charges that remain in the case. ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. In most cases, the evidence will not have been admitted in support of only the dismissed charges. In those cases in which it has, the court should instruct the jury concerning exactly what evidence should be discarded rather than instructing the jury to determine that for themselves. See U.S. v. McCord, 509 F.2d 334, 166 U.S. App. D.C. 1 (1974) (en banc) (no abuse by trial court in refusing to declare mistrial after five of seven defendants pleaded guilty, where court gave limiting instructions that jury was not to draw any inference from determination of the cases of the other defendants); U.S. v. Thornton, 498 F.2d 749, 162 U.S. App. D.C. 207 (1974) (no error where trial court granted motion for judgment of acquittal on three counts where a jury was instructed not to be influenced with respect to innocence or guilt of
defendant by any ruling made during course of the trial); U.S. v. Harris, 437 F.2d 686, 141 U.S. App. D.C. 253 (1970) .
Page 36
18 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. I. Instructions Before and During Trial B. During Trial 1-I Criminal Jury Instructions for DC Instruction 1.204 Instruction 1.204 WITNESS'S OR DEFENDANT'S USE OF INTERPRETER--BEFORE WITNESS OR DEFENDANT TESTIFIES
I have appointed a qualified interpreter to assist [name of witness] [name of defendant] during his/her testimony. The interpreter will interpret only what is said and will not add, omit, or summarize anything. The interpreter in this case is [name of interpreter]. The oath will now be administered to the interpreter. Oath to Interpreter Do you swear or affirm to accurately interpret from English to [language to be used] and from [language to be used] to English to the best of your ability? Non-English Testimony You are about to hear testimony from [name of witness] [name of defendant] who will be testifying in [language to be used] through the official court interpreter. Although some of you may know [language to be used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of his/her testimony. If, however, during the testimony you have a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, you must rely only upon the official English interpretation as provided by the court interpreter and not your own interpretation. You should also understand that witnesses may nod their heads during interpretation, and that this does not necessarily indicate agreement or an affirmative answer. It may merely indicate that the witnesses are following the translation.
[American Sign Language uses body language and certain facial expressions to convey information in ways that might be misunderstood by those who do not sign or understand this language. They are integral parts of communicating in American Sign Language, similar to the way that vocal tones and inflections give meaning to spoken words. You should be cautious about assuming a particular meaning from observing body language or facial expressions.] You should not consider the mere fact that [name of witness] [name of defendant] has been provided an interpreter in evaluating his/her credibility. You must evaluate interpreted testimony as you would any other testimony. That is, you must not give interpreted testimony any greater or lesser weight than you would if the witness had spoken English. [The fact that the court has provided an interpreter to [name of witness] [name of defendant] does not mean that the court has made a ruling on the extent of his/her ability to speak or understand the English language. Use of an interpreter should not be considered evidence in this case.]____________________________________ Comment: This is a new instruction in the Fifth Edition. The issue of a witness's or defendant's use of an interpreter has not been addressed previously in these jury instructions. The first bracketed paragraph should be given when the non-English testimony is American Sign Language. The bracketed final paragraph should only be given when the ability of the witness or defendant to speak or understand English is at issue in the case. This instruction should only be given when a witness or defendant testifies, not when proceedings are interpreted for a defendant and s/he does not testify. The right to the services of an interpreter in the District of Columbia is governed by the "Interpreters for Hearing-Impaired and Non-English Speaking Persons Act of 1987." D.C. Official Code 2-1901 et seq. (2001). See Rivera v. U.S., 941 A.2d 434, 442 (D.C. 2008) (citing Ramirez v. U.S., 877 A.2d 1040, 1042 n. 2 (D.C. 2005)) . Under federal statute, interpreters are also provided to those who speak only or primarily a language other than English or who are hearing impaired when parties are brought before the court in actions instituted by the United States and the court assesses the party to need such assistance. 28 U.S.C. 1827(d)(1). When a case involves a witness or defendant who will be communicating through an interpreter, it may be appropriate to ascertain during voir dire whether prospective jurors speak the language other than English that will be used in the proceeding, and whether they harbor any views, positive or negative, about people who cannot communicate readily in English. Cross references: No. 1.109, Role of Interpreter for Juror--Preliminary Instruction; No. 1.110, Witness's or Defendant's Use of Interpreter--Preliminary Instruction; No. 2.506, Role of Interpreter for Juror--Final Instruction; No. 2.507, Witness's or Defendant's Use of Interpreter--Final Instruction.
Page 38
19 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.100 Instruction 2.100 FURNISHING THE JURY WITH A COPY OF THE INSTRUCTIONS
I will provide you with a [copy] [tape] of my instructions. During your deliberations, you may, if you want, refer to these instructions. While you may [refer] [listen] to any particular portion of the instructions, you are to consider the instructions as a whole and you may not follow some and ignore others. If you have any questions about the instructions, you should feel free to send me a note. Please return your instructions to me when your verdict is rendered.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The practice of furnishing the jury with a copy of the court's written instructions, while not universally followed in this jurisdiction, has been strongly endorsed:
[I]t is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also handed over to the jury. This course is required in some states, and is widely practiced. U.S. courts are free to follow it. We see no good reason why the members of the jury should always be required to debate and rely upon their several recollections of what a judge said when proof of what he said is readily available. The question should be determined by the judge in his discretion. No doubt instructions which he reads and hands over to the jury may make a stronger impression than other instructions which are not reduced to writing. This difference may or may not be important. When the judge thinks that is likely to distort the charge as a whole or unfairly favor one party, he may solve the problem either by declining to give or declining to hand over any written instructions, or by reducing his entire charge to writing and reading it to the jury.
Page 39 1-II Criminal Jury Instructions for DC Instruction 2.100
Copeland v. U.S., 152 F.2d 769, 770, 80 U.S. App. D.C. 308, 309 (1945) (citations omitted). See also Smith v. U.S., 454 A.2d 822, 826 (D.C. 1983) (providing jury with tape recording of trial court's instructions did not violate defendant's constitutional right to be present at all phases of trial); Carrado v. U.S., 210 F.2d 712, 722-23, 93 U.S. App. D.C. 183, 193 (1953) . Furnishing the jury with a written copy of the court's instructions has been upheld in numerous other federal and state jurisdictions. See Annotation, Propriety and Prejudicial Effect of Sending Written Instructions With Retiring Jury in Criminal Case, 91 A.L.R.3d 382 (1979 & Supp. 2004) (complete review of state and federal cases approving this practice). The American Bar Association also endorses the general practice of sending instructions into the jury room with a deliberating jury. See ABA Standards for Criminal Justice, Trial by Jury, 15-4.1(a) (commentary) (2d ed. 1980 & Supp. 1986). Some courts have also approved the practice of sending a tape recording of the jury instructions into the jury room. See, e.g., U.S. v. Watson, 669 F.2d 1374, 1386 n.9 (11th Cir. 1982) ; U.S. v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973) (en banc); U.S. v. McEvers, 619 F.Supp. 882, 885 (N.D. Ill. 1985). Contra People v. Small, 327 N.W.2d 504, 505 (Mich. 1982) (the practice of tape recording the jury charge for use by the jury should not be encouraged, but does not constitute reversible error); Wagner v. State, 76 Wis. 2d 30, 250 N.W.2d 331 (Wis. 1977) (same as Small). The court should read all the instructions to the jury. See U.S. v. Perry, 479 F.3d 885, 892, 375 U.S. App. D.C. 238, 245 (2007) ("We agree with our sister circuits that a trial judge must read aloud jury instructions in their entirety."). Courts should provide the jury with copies of all instructions read by the court and any additional instructions given at the request of a deliberating jury. The court should preserve, with the case file, a copy of all instructions furnished to the jury until the time for filing a notice of appeal has elapsed. For further discussion of this subject, see 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 9.01 (5th ed. 2000); ABA Standards, Trial By Jury, supra ; Wright, 2A Federal Practice and Procedure, Criminal 483 (3d ed. 2000). Cross reference: No. 2.600, Court Interaction with Jury During Deliberations--Note.
Page 40
20 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.101 Instruction 2.101 FUNCTION OF THE COURT
My function is to conduct this trial in an orderly, fair, and efficient manner; to rule on questions of law; and to instruct you on the law that applies in this case. It is your duty to accept the law as I instruct you. You should consider all the instructions as a whole. You may not ignore or refuse to follow any of them.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. Instructions must be considered as a whole, and no one instruction should be considered in isolation from the rest. Watts v. U.S., 362 A.2d 706, 709 (D.C. 1976) (en banc) (citing Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)) . Both the Superior Court and the U.S. District Court have rejected assertions that juries are entitled to an instruction apprising them of their "right" to nullify the law. See U.S. v. Washington, 277 U.S. App. D.C. 184, 705 F.2d 489 (1983) (the fact that juries can abuse their power and return verdicts contrary to the law and instructions of the court, and thus nullify the criminal law, does not mean that courts must give such an instruction to the jury); Reale v. U.S., 573 A.2d 13 (D.C. 1990) (trial court did not need to instruct jurors about their power of "jury nullification"). See also Gregg v. Georgia, 428 U.S. 153, 199-200 n.50 (1976) . Cross references: No. 2.102, Function of the Jury; No. 2.107, Burden of Proof--Presumption of Innocence.
Page 41
21 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.102 Instruction 2.102 FUNCTION OF THE JURY
Your function, as the jury, is to determine what the facts are in this case. You are the sole judges of the facts. While it is my responsibility to decide what is admitted as evidence during the trial, you alone decide what weight, if any, to give to that evidence. You alone decide the credibility or believability of the witnesses. You should determine the facts without prejudice, fear, sympathy, or favoritism. You should not be improperly influenced by anyone's race, ethnic origin, or gender. Decide the case solely from a fair consideration of the evidence. You may not take anything I may have said or done as indicating how I think you should decide this case. If you believe that I have expressed or indicated any such opinion, you should ignore it. The verdict in this case is your sole and exclusive responsibility.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. A trial judge may comment upon the evidence while instructing the jury so long as the judge clearly leaves the ultimate resolution of the factual issues to the jury. Hall v. U.S., 383 A.2d 1086 (D.C. 1978) . Nevertheless, trial judges should use extreme caution before commenting on the evidence and should not express a personal opinion as to the guilt or innocence of the defendant or as to the truthfulness of testimony. ABA Standards, Function of the Trial Judge, Standard 5.6; Henderson v. U.S., 527 A.2d 1262 (D.C. 1987) (trial court's comments on evidence effectively shifted burden of persuasion on an element of the crime to the defendant, but error was harmless); Byrd v. U.S., 377 A.2d 400 (D.C. 1977) (essence of judicial role is neutrality; however, though a trial judge is not relegated to the status of a mere observer during the proceedings, his participation must be of a neutral nature); Dyas v. U.S., 376 A.2d
827 (D.C. 1977) (trial judge's alleged facial expressions and other outward manifestations of disbelief of a defense witness did not prejudice the defendant where the judge turned away to avoid revealing his facial reaction to the jury). But see Watkins v. U.S., 379 A.2d 703 (D.C. 1977) (trial judge's comments that witnesses for both sides were lying did not prejudice the defendant and, therefore, did not constitute reversible error). Whether the court's actions have improperly affected the jury's verdict is an issue which the courts in this jurisdiction have considered on numerous occasions. See Wheeler v. U.S., 930 A.2d 232, 244-45 (D.C. 2007) ("The judge's emphatic instruction that the absence of fingerprint evidence in the government's case 'does not constitute reasonable doubt' is likely to have been taken by the jury as a legal injunction ('the law as I state it to you') against basing acquittal on the absence of fingerprint evidence--an injunction that the jury had 'a duty to accept' without 'question[ing its] wisdom,' rather than as referring to the 'facts' as to which the jurors were the 'sole and exclusive judges.' "); Patterson v. U.S., 479 A.2d 335 (D.C. 1984) (no denial of fair trial when the trial court, sua sponte, interrupted the examination of a witness and called counsel to the bench for discussion and then asked questions of the witness to clarify confusing testimony as to a particularly complex set of facts); Colbert v. U.S., 471 A.2d 258 (D.C. 1984) (trial court's repeated admonitions to defense counsel were fully justified by counsel's persistent disregard of the trial court's ruling on admissibility of testimony); Khaalis v. U.S., 408 A.2d 313 (D.C. 1979) (although defendant cited approximately one hundred instances during a seven-week trial where the trial court's comments allegedly reflected a hostile attitude toward the defense, the cited instances, neither singly nor collectively, constituted reversible error). See also U.S. v. Bruner, 657 F.2d 1278, 212 U.S. App. D.C. 36 (1981) (court's interruption of one defense counsel's argument, regarding the co-defendant's guilt, to admonish the jury that the attorney's statements were only argument and not evidence, did not prejudice the co-defendant and was not reversible error); U.S. v. Jackson, 627 F.2d 1198, 201 U.S. App. D.C. 212 (1980) (trial court did not prejudice the defendant by limiting and interrupting cross-examination of government witnesses, where the trial court's conduct could not be construed as signifying some predetermination of factual issues and did not suggest to the jury that it should find the defendant guilty); U.S. v. McCord, 509 F.2d 334, 166 U.S. App. D.C. 1 (1974) and U.S. v. Liddy, 509 F.2d 428, 166 U.S. App. D.C. 95 (1974) (suggesting that extensive questioning of witnesses by the court to ascertain or clarify facts might be best conducted outside the hearing of the jury); Davis v. U.S., 567 A.2d 36 (D.C. 1989) (trial judge's power to participate directly in the trial should be sparingly exercised; it is primarily the task of counsel, not the court, to develop facts essential to jury's understanding of the case); Johnson v. U.S., 404 A.2d 162 (D.C. 1979) (if court suspects that defendant is about to commit perjury, it can properly summon counsel to the bench to advise counsel of its concern and of counsel's ethical obligations); Petway v. U.S., 391 A.2d 798 (D.C. 1978) (trial court may not require counsel to ask questions on cross-examination in "direct and ultimate fashion" aimed at demonstrating bias of a witness; it is equally improper for the trial court to intervene in counsel's cross-examination and to pose its own questions in such a conclusory form). For cases discussing the function of the jury, see Lawson v. U.S., 596 A.2d 504 (D.C. 1991) ; U.S. v. Thornton, 746 F.2d 39, 241 U.S. App. D.C. 46 (1984) (court may not intrude upon the province of the jury even if the jury finds testimony credible which the judge does not); U.S. v. Treadwell, 594 F. Supp. 831 (D.D.C. 1984) , aff'd, 760 F.2d 327, 245 U.S. App. D.C. 257 (1985) (jury in criminal prosecution must consider all the evidence, weigh the credibility of the witnesses, and consider any justifiable inference based on proven facts); Ballard v. U.S., 430 A.2d 483 (D.C. 1981) (it is within the province of the jury to weigh evidence and to accept or reject it as it sees fit); Morrison v. U.S., 417 A.2d 409 (D.C. 1980) (jury, as finder of fact, has function of determining credibility of witnesses, weighing evidence, and drawing justifiable inferences). Cross reference: No. 2.101, Function of the Court.
Page 43
22 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.103 Instruction 2.103 JURY'S RECOLLECTION CONTROLS
If any reference by me or the attorneys to the evidence is different from your own memory of the evidence, it is your memory that should control during your deliberations.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition.
Page 44
23 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.104 Instruction 2.104 EVIDENCE IN THE CASE--JUDICIAL NOTICE, STIPULATIONS, DEPOSITIONS
During your deliberations, you may consider only the evidence properly admitted in this trial. The evidence in this case consists of the sworn testimony of the witnesses, [the exhibits that were admitted into evidence], [the facts of which I took judicial notice], [the facts and testimony stipulated to by the parties], and [depositions]. I may take what is called "judicial notice" of public acts, places, facts, and events that I consider to be matters of common knowledge or matters that can be determined easily through undisputed sources. In this case, I took judicial notice of [describe fact of which the court took judicial notice]. When I take judicial notice of a particular fact, you may [if you choose to do so,] regard that fact as proven evidence. [Because you are the sole judges of the facts, however, you are not required to accept any fact that is judicially noted.] [During the trial, you were told that the parties had stipulated--that is, agreed--to certain facts. You should consider any stipulation of fact to be undisputed evidence.] [During the trial, you were told that the parties had stipulated--that is, agreed--to what testimony [name of witness] would have given if s/he had testified in this case. You should consider this stipulated testimony to be exactly what s/he would have said had s/he testified here.] [A deposition is the sworn testimony given by a witness before trial. The witness is placed under oath to tell the truth, and lawyers for each party may ask questions. The questions and answers are recorded by a court reporter. You may consider deposition testimony in the same way you would consider testimony actually given in court.] When you consider the evidence, you are permitted to draw, from the facts that you find have been proven, such reasonable inferences as you feel are justified in the light of your experience.____________________________________ Comment:
The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The instruction concerning judicial notice advises the jury in bracketed language that they are not required to regard as proven matters as to which judicial notice is taken. See U.S. v. Jones, 580 F.2d 219 (6th Cir. 1978) (jury in a criminal case is not required to accept judicially noticed facts). This portion of the instruction must be given in District Court, see Fed. R. Evid. 201, and it is the Committee's view that it represents the better practice in all trials. See also Comment to Instruction 1.103. The bracketed language in the first paragraph should be given depending upon what types of evidence were admitted at trial. In addition, the third through fifth paragraphs of the instruction are bracketed to indicate that these portions of the instruction should be given only where the evidence in the case makes it appropriate to do so. When the parties have agreed to any stipulations, the court should ask the defendant personally whether he agrees to the stipulation--an agreement by his counsel alone may not be sufficient. See U.S. v. Brown, 428 F.2d 1100, 138 U.S. App. D.C. 398 (1970) . The bracketed language in the judicial notice instruction advises the jurors that they are not required to regard matters to which judicial notice is taken as proven evidence. This portion of the instruction must be given in U.S. District Court. See Fed. R. Evid. 201(g); U.S. v. Jones, 580 F.2d 219 (6th Cir. 1978) (given Rule 201(g), the jury in a criminal case is not required to accept judicially noticed facts as proven). The D.C. Court of Appeals apparently has not addressed this issue. See generally Poulnot v. D.C., 608 A.2d 134 (D.C. 1992) (court improperly took judicial notice of the rate at which the defendant's body gained alcohol content by drinking beer or lost it by the passage of time; the precise impact of alcohol and its rate of absorption by the defendant were not matters of common knowledge or facts readily determinable from unimpeachable sources); Lutz v. U.S., 434 A.2d 442 (D.C. 1981) (it is not appropriate for a court to take judicial notice of whether massage parlors are fronts for prostitution); Moore v. U.S., 388 A.2d 889 (D.C. 1978) (court would not take judicial notice that household appliance's value does not rapidly depreciate for purposes of determining whether the government met its burden as to the value required to submit grand larceny charge to the jury). When the parties agree that stipulated testimony or deposition testimony is admitted, the parties are still free to challenge that evidence in the same manner as they would live testimony. See generally Byrd v. U.S., 485 A.2d 947 (D.C. 1984) (court enforced stipulation as to what the testimony of a witness would be--not for the truth of the facts stated; thus, the defense was not foreclosed from calling witnesses in contradiction); Cowan v. U.S., 331 A.2d 323 (D.C. 1975) (stipulation to evidence which might have been inadmissible made the evidence admissible); D.C. Official Code 23-108 (2001) (depositions); D.C. Superior Court Crim. R. 15., Depositions. Cross references: No. 1.102, Preliminary Instruction Before Trial; No. 1.103, Definitions.
Page 46
24 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.105 Instruction 2.105 STATEMENTS OF COUNSEL
The statements and arguments of the lawyers are not evidence. They are only intended to assist you in understanding the evidence.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. For cases in Superior Court, see Ginyard v. U.S., 816 A.2d 21, 28-29, 30 (D.C. 2003) (court's instruction not to consider what counsel had said in their opening statement about the anticipated testimony of witness who was "unavailable to be called as a witness by either side" "properly and adequately protected [defendant's] rights"; court "wisely refused to instruct the jury that the witness had asserted his privilege against self incrimination"); Wilson v. U.S., 711 A.2d 75 (D.C. 1998) (citing this instruction with approval); Lee v. U.S., 668 A.2d 822 (D.C. 1995) (court instructed jury on several occasions that the arguments of counsel were not evidence and asked defense counsel if they were requesting any additional corrective instructions after prosecutor misstated the evidence in rebuttal; while such prosecutorial misstatements will not be taken lightly, this single lapse did not warrant reversal); Sherrod v. U.S., 478 A.2d 644 (D.C. 1984) (because trial judge twice instructed jury that arguments of counsel were not evidence, the errors did not rise to the level of plain error); Lee v. U.S., 471 A.2d 683 (D.C. 1984) (trial court carefully instructed jury that counsel's remarks were not evidence and that jurors' determination of the facts must govern the verdict); Sherer v. U.S., 470 A.2d 732 (D.C. 1983) (although the prosecutor's closing argument, like that of defense counsel, exceeded the bounds of proper advocacy, it did not require reversal, especially because the court cautioned the jury that the statements and arguments of counsel were not evidence); Fornah v. U.S., 460 A.2d 556 (D.C. 1983) (although it was error to suggest in closing argument that the particular pistol which caused the victim's death belonged to
the defendant solely because he had owned other guns, that error did not require reversal because the court had given the jury the standard instruction that the case was to be decided on the evidence and not on counsel's argument); Villacres v. U.S., 357 A.2d 423 (D.C. 1976) (misstatement by government counsel was not cured by general instruction that statements are not evidence; specific reference to offending remarks should have been included in the instruction); Jackson v. U.S., 329 A.2d 782 (D.C. 1974) (court's instruction that statements of counsel were not evidence helped cure any possible prejudice from prosecutor's assertion in opening statement that was subsequently not supported by the evidence). For cases in U.S. District Court, see U.S. v. Watson, 171 F.3d 695, 335 U.S. App. D.C. 232 (1999) (standard instructions that counsel's questions, statements, and arguments are not evidence insufficient to correct error caused by prosecutor's misstatements of the evidence in closing argument); U.S. v. Monaghan, 741 F.2d 1434, 239 U.S. App. D.C. 275 (1984) (three factors which determine whether a prosecutor's improper remarks substantially prejudiced the defendant's trial are the severity of the misconduct, measures adopted to cure the misconduct and certainty of conviction absent the improper remarks; a fourth factor which may be relevant in some cases is the extent to which the jury appeared to have weighed the evidence in a rational and dispassionate fashion). Cross reference: No. 1.104, Question Not Evidence.
Page 48
25 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.106 Instruction 2.106 INDICTMENT OR INFORMATION NOT EVIDENCE
The [indictment] [information] is merely the formal way of accusing a person of a crime. You must not consider the [indictment] [information] as evidence of any kind--you may not consider it as any evidence of [name of defendant's] guilt or draw any inference of guilt from it.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. See Scott v. U.S., 412 A.2d 364 (D.C. 1980) (indictment not evidence and it is impermissible for the trier of fact to consider it as evidence of any kind or to draw any inference of guilt from it [citing former Instruction 2.06 with approval]; furthermore, it was improper and misleading for the trial court to twice instruct the jury that an indictment was "not evidence in and of itself"). Cf. Dallago v. U.S., 427 F.2d 546, 138 U.S. App. D.C. 276 (1969) (where the trial court intends to send indictment to the jury room, defendant's counsel should be notified and allowed to request a cautionary instruction); Whittlesey v. U.S., 221 A.2d 86 (D.C. 1966) (when the indictment or information goes to the jury and defense counsel properly requests an instruction that an indictment or information is not evidence, failure to give such instruction constitutes reversible error).
Page 49
26 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.107 Instruction 2.107 BURDEN OF PROOF--PRESUMPTION OF INNOCENCE
Every defendant in a criminal case is presumed to be innocent. This presumption of innocence remains with the defendant throughout the trial unless and until the government has proven s/he is guilty beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require [name of defendant] to prove his/her innocence or to produce any evidence at all. If you find that the government has proven beyond a reasonable doubt every element of [the] [a particular] offense with which [name of defendant] is charged, it is your duty to find him/her guilty [of that offense]. On the other hand, if you find the government has failed to prove any element of [the] [a particular] offense beyond a reasonable doubt, it is your duty to find [name of defendant] not guilty [of that offense].____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. In Watts v. U.S., 362 A.2d 706 (D.C. 1976) (en banc), the D.C. Court of Appeals held that the jury must be told that where it finds the government has proved each element of the offense beyond a reasonable doubt, it is the jury's "duty" to find the defendant guilty. In U.S. v. Pierre, 974 F.2d 1355, 298 U.S. App. D.C. 5 (1992) , the court also concluded that it was proper for the district court to instruct the jury that it was its "duty" to find the defendant guilty when the government had proven each element beyond a reasonable doubt. This instruction reflects the holdings of both Watts and Pierre. See also Baptist v. U.S., 466 A.2d 452 (D.C. 1983) (trial court's instruction on the jury's "duty" to convict was proper and complies with current case law--citing this instruction approvingly). Both the Superior Court and the U.S. District Court have rejected assertions that juries are entitled to an instruction apprising them of their "right" to nullify the law. See U.S. v. Washington, 705 F.2d 489, 227
U.S. App. D.C. 184 (1983) (the fact that juries can abuse their power and return verdicts contrary to the law and instructions of the court, and thus nullify the criminal law, does not mean that courts must give such an instruction to the jury); see also Ford v. U.S. 856 A.2d 591, 594 (D.C. 2004) ("a judge has an affirmative duty to eliminate any possibility of jury nullification"); Reale v. U.S., 573 A.2d 13 (D.C. 1990) (we do not encourage jurors to engage in "jury nullification"). Cross reference: No. 2.101, Function of the Court.
Page 51
27 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.108 Instruction 2.108 REASONABLE DOUBT
The government has the burden of proving [name of the defendant] guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Reasonable doubt, as the name implies, is a doubt based on reason--a doubt for which you have a reason based upon the evidence or lack of evidence in the case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant's guilt, then you have a reasonable doubt. Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty. Its burden is to prove guilt beyond a reasonable doubt.____________________________________ Comment: No changes were made to this instruction in the 2008 release except to insert in brackets "[name of defendant]". Superior Court This instruction was adopted by the en banc Court of Appeals in Smith v. U.S., 709 A.2d 78, 82 (D.C. 1998) . The Court has admonished the trial court and parties that:
Given the great risks to the integrity of the trial which attend a deficient reasonable doubt instruction, the uncertainties and controversies generated by varying definitions, and the importance of fairness and the appearance of fairness in our justice system, the greater part of wisdom would dictate
that the trial court give the standard instruction approved here, which has been determined to be faithful to the constitutional meaning of reasonable doubt. Therefore, we state, in the strongest terms, that the trial court should "resist the temptation to stray from, or embellish upon, that instruction." Id. at 82-83 (quoting Wills v. State, 329 Md. 370, 620 A.2d 295, 304 (1993) (McAuliffe, J., concurring)). In Payne v. U.S., 932 A.2d 1095, 1102 (D.C. 2007) , the trial court gave the following instruction:
Reasonable doubt is not an imaginary doubt. It is not a doubt based on guess work or speculation. It is a doubt based upon reason. The government never has to prove guilt beyond all doubt. That's impossible. They do not have to prove guilty beyond a shadow of a doubt. There's no such thing. They do not have to prove guilt to a mathematical certainty and they do not have to prove guilt to a scientific certainty. They have to prove guilt beyond a reasonable doubt. The D.C. Court of Appeals found no error in that instruction, explaining:
We see no way in which this language conveyed a faulty legal principle, prejudiced Payne, or improperly bolstered the government's case. We have previously approved instructions that include the statement that "[t]he government is not required to prove guilt beyond all doubt." See, e.g., Smith v. U.S., 709 A.2d 78, 82 (D.C.1998) . This means that the government need not prove to a certainty that the defendant committed the crime charged. The same concept of certainty is conveyed by the phrase "beyond a shadow of a doubt." Id. U.S. District Court The following instruction has been accepted in U.S. District Court:
The government has the burden of proving each defendant guilty beyond a reasonable doubt as to each count or charge against him. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely than not true, which we call the preponderance of the evidence. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think there is a real possibility that a defendant is not guilty, you must give him/her the benefit of the doubt and find him/her not guilty. See also U.S. v. Taylor, 997 F.2d 1551, 1558, 302 U.S. App. D.C. 349, 356 (1993) (finding no error when trial court used Federal Judicial Center's Pattern Instruction 28 for "reasonable doubt," noting that Redbook instruction is not mandatory; approving use of phrases "firmly convinced" and "real possibility of innocence" and suggesting that a court need not give any instruction defining "reasonable doubt"). See also U.S. v. Merlos, 984 F.2d 1239, 299 U.S. App. D.C. 401 (1993) , modified on other grounds, 8 F.3d 48, 303 U.S. App. D.C. 395 (1993) (citing former Instruction 2.09 with approval; finding error--but not reversible error because defense counsel did not object--in an instruction which told the jury that "[p]roof
beyond a reasonable doubt is proof that leaves you with a strong belief in the defendant's guilt"); U.S. v. Dale, 991 F.2d 819, 301 U.S. App. D.C. 110 (1993) (approving former "Red Book" instruction despite defendants' claim that the words "a doubt for which you can give a reason" imply that a juror must be able to articulate a reason, which they urged impermissibly lowered the government's burden of persuasion); U.S. v. Pinkney, 551 F.2d 1241, 1244, 179 U.S. App. D.C. 282, 285 (1976) (approving language similar to this instruction, but finding plain error in court's attempt to compare doubt required in a criminal prosecution with doubt generated by consideration of the wisdom of buying a "clearly unnecessary new car"). The D.C. Court of Appeals also made clear in Smith, that the trial court must explain the meaning of "reasonable doubt" "to the juries in Superior Court." 709 A.2d at 79 . In contrast, the District of Columbia Circuit has held that trial judges in U.S. District Court need not define reasonable doubt, and has expressed the view that "the greatest wisdom may lie with the Fourth Circuit's and Seventh Circuit's instruction to leave to juries the task of deliberating the meaning of reasonable doubt." Taylor, 302 U.S. App. D.C. at 356, 997 F.2d at 1558 (citations omitted); see U.S. v. Edelin, 996 F.2d 1238, 1242, 302 U.S. App. D.C. 159, 163 (1993) ; see also Holland v. U.S., 348 U.S. 121 (1954) ; U.S. v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991) ; U.S. v. Glass, 846 F.2d 386, 387 (7th Cir. 1988) . Miscellaneous Issues A jury charge should also include a statement indicating that each element of the crimes charged must be proved beyond a reasonable doubt. See U.S. v. Powell, 449 F.2d 994, 996-97, 145 U.S. App. D.C. 332, 334-35 (1971) ; cf. In re Winship, 397 U.S. 358, 364 (1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crimes charged); U.S. v. Alston, 551 F.2d 315, 319, 179 U.S. App. D.C. 129, 134 (1976) (instructions erroneous where, inter alia, court failed to state that each element of the charged offense must be proved beyond a reasonable doubt). See also Holland v. U.S., 348 U.S. 121, 139-40 (1954) (in case based upon circumstantial evidence, it is not necessary to instruct the jury that proof must be capable of negating every reasonable hypothesis of innocence as long as jury is properly instructed regarding reasonable doubt); In re S.P., 465 A.2d 823, 826 (D.C. 1983) ; U.S. v. Coombs, 464 F.2d 842, 843, 150 U.S. App. D.C. 333, 334 (1972) (quoting Holland). See Greer v. U.S., 697 A.2d 1207, 1210 (D.C. 1997) ("in assessing whether the government has met its burden of proving guilt beyond a reasonable doubt, the jury may properly consider not only the evidence presented but also the lack of any evidence that the government, in the particular circumstances of the case, might reasonably be expected to present"); see also Brown v. U.S., 881 A.2d 586, 594-95 (D.C. 2005) (defense properly argued that the lack of corroborating physical evidence should undermine the jury's confidence that the government had met its burden of proof; because the defense did not argue that the jury should infer that the evidence the government failed to produce would have been favorable to the defense, the government was not entitled to a "no duty instruction" as a matter of law, rather it was required to lay an evidentiary foundation entitling it to such an instruction); see generally Victor v. Nebraska, 511 U.S. 1 (1994) (finding no due process violation, the Court still noted that it did not condone use of the words "moral certainty"); Sullivan v. Louisiana, 508 U.S. 275 (1993) (constitutionally deficient reasonable doubt instruction can never be harmless error). Cross reference: No. 2.107, Burden of Proof--Presumption of Innocence.
Page 54
28 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.109 Instruction 2.109 DIRECT AND CIRCUMSTANTIAL EVIDENCE
There are two types of evidence from which you may determine what the facts are in this case--direct evidence and circumstantial evidence. When a witness, such as an eyewitness, asserts actual knowledge of a fact, that witness's testimony is direct evidence. On the other hand, evidence of facts and circumstances from which reasonable inferences may be drawn is circumstantial evidence. Let me give you an example. Assume a person looked out a window and saw that snow was falling. If he later testified in court about what he had seen, his testimony would be direct evidence that snow was falling at the time he saw it happen. Assume, however, that he looked out a window and saw no snow on the ground, and then went to sleep and saw snow on the ground after he woke up. His testimony about what he had seen would be circumstantial evidence that it had snowed while he was asleep. The law says that both direct and circumstantial evidence are acceptable as a means of proving a fact. The law does not favor one form of evidence over another. It is for you to decide how much weight to give to any particular evidence, whether it is direct or circumstantial. You are permitted to give equal weight to both. Circumstantial evidence does not require a greater degree of certainty than direct evidence. In reaching a verdict in this case, you should consider all of the evidence presented, both direct and circumstantial.____________________________________ Comment: The Fifth Edition simplified the language of this instruction but did not intend to make any substantive changes. In the 2008 release, the Committee had deleted the phrase "The law makes no legal distinction between the weight you should give to either kind of evidence" from the first sentence of the second paragraph. The Committee concluded that this was a correct statement of the law for appellate review but that as included in an instruction to a jury might incorrectly lead the jury to believe that it was being instructed that as a matter of law, the jurors had to assign the same weight to direct and circumstantial evidence. The Committee also in 2008 rewrote and reordered the paragraph to underscore for the jurors
that it is acceptable for the government to introduce only or mostly circumstantial evidence in its case but it is for the jurors to decide what weight, if any, to assign to any particular evidence. The statement that circumstantial evidence does not require a greater degree of certainty was retained to reflect the fact that both the Supreme Court and the appellate courts of this jurisdiction have rejected any notion that circumstantial evidence is intrinsically weaker than direct evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required) (citing Holland v. U.S., 348 U.S. 121, 140 (1954) (observing that, in criminal cases, circumstantial evidence is "intrinsically no different from testimonial evidence)); Mills v. U.S., 599 A.2d 775 (D.C. 1991) (no distinction is made between direct and circumstantial evidence in evaluating a claim of evidentiary insufficiency); Ingram v. U.S., 592 A.2d 992, 998 (D.C. 1991) ("It is long settled that circumstantial evidence is not necessarily entitled to less weight, as such, than direct evidence."); Jones v. U.S., 477 A.2d 231 (D.C. 1984) (when applying the appropriate standard of review, which is whether there was sufficient evidence from which a reasonable juror could fairly conclude guilt beyond a reasonable doubt, the appellate court does not distinguish between direct and circumstantial evidence); Head v. U.S., 451 A.2d 615 (D.C. 1982) (circumstantial evidence may be equally as probative as direct evidence, especially in connection with armed robbery charge where the defendant is shown to be in possession of recently stolen property). See also Smothers v. U.S., 403 A.2d 306, 313 (D.C. 1979) (acknowledging the rule that a kidnapping conviction could be based on circumstantial evidence); U.S. v. Davis, 562 F.2d 681, 183 U.S. App. D.C. 162 (1977) (although circumstantial evidence is relied upon, the state is not required to overcome "all reasonable inferences of innocence").
Page 56
29 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.110 Instruction 2.110 NATURE OF CHARGES NOT TO BE CONSIDERED
One of the questions you were asked when we were selecting this jury was whether the nature of the charge[s] itself would affect your ability to reach a fair and impartial verdict. We asked you that question because you must not allow the nature of a charge to affect your verdict. You must consider only the evidence that has been presented in this case in reaching a fair and impartial verdict.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. It is recommended that this instruction be given as a preliminary instruction in all cases where requested by either the defendant or the government. Therefore, it has been included among the general instructions to be given to the jury at the outset of its deliberations.
Page 57
30 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.111 Instruction 2.111 NUMBER OF WITNESSES
The weight of the evidence is not necessarily determined by the number of witnesses testifying for each side. Rather, you should consider all the facts and circumstances in evidence to determine which of the witnesses you believe. You might find that the testimony of a smaller number of witnesses on one side is more believable than the testimony of a greater number of witnesses on the other side or you might find the opposite.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction is not required where the defense elects not to call any witnesses. Barnes v. U.S., 313 A.2d 106, 110 (D.C. 1973) ("[S]uch an instruction is not required where the defense ... elects not to introduce any witnesses. Where this occurs, the function of the jury is no longer which side to believe but, rather, whether the government's proof is convincing beyond a reasonable doubt."). See generally Garris v. U.S., 559 A.2d 323 (D.C. 1989) (convictions can be sustained on the basis of a single eyewitness's testimony); Malloy v. U.S., 483 A.2d 678 (D.C. 1984) (a conviction based on the identification testimony of one witness will not be disturbed if a reasonable juror could find the circumstances surrounding the identification to be convincing beyond a reasonable doubt).
Page 58
31 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions A. General--Introductory 1-II Criminal Jury Instructions for DC Instruction 2.112 Instruction 2.112 INADMISSIBLE AND STRICKEN EVIDENCE
The lawyers in this case sometimes objected when the other side asked a question, made an argument, or offered evidence that the objecting lawyer believed was not proper. You must not hold such objections against the lawyer who made them or the party s/he represents. It is the lawyers' responsibility to object to evidence that they believe is not admissible. If, during the course of the trial, I sustained an objection to a lawyer's question, you should ignore the question, and you must not speculate as to what the answer would have been. If, after a witness answered a question, I ruled that the answer should be stricken, you should ignore both the question and the answer and they should play no part in your deliberations. [Likewise, exhibits as to which I have sustained an objection or that I ordered stricken are not evidence, and you must not consider them in your deliberations.]____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. Cross references: No. 1.102, Preliminary Instruction Before Trial; No. 1.200, Limiting Instructions--Note.
Page 59
32 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.200 Instruction 2.200 CREDIBILITY OF WITNESSES
In determining whether the government has established the charge[s] against the defendant beyond a reasonable doubt, you must consider and weigh the testimony of all the witnesses who have appeared before you. You are the sole judge of the credibility of the witnesses. In other words, you alone are to determine whether to believe any witness and the extent to which any witness should be believed. In reaching a conclusion as to the credibility of any witness, you may consider any matter that may have a bearing on the subject. You may consider the demeanor and the behavior of the witness on the witness stand; the witness's manner of testifying; whether the witness impresses you as a truthful person; whether the witness impresses you as having an accurate memory and recollection; whether the witness has any motive for not telling the truth; whether the witness had a full opportunity to observe the matters about which he or she has testified; whether the witness has any interest in the outcome of this case, or friendship or hostility toward other people concerned with this case. [Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident or transaction may see or hear it differently; an innocent mis-recollection, like a failure of recollection, is not an uncommon experience. In weighing the effect of the inconsistency or discrepancy, always consider whether it pertains to a matter of important or unimportant detail, and whether the inconsistency or discrepancy results from innocent error or intentional falsehood.] You may consider the reasonableness or unreasonableness, the probability or improbability, of the testimony of a witness in determining whether to accept it as true and accurate. You may consider whether the witness has been contradicted or supported by other credible evidence. If you believe that any witness has shown him or herself to be biased or prejudiced, for or against either side in this trial, you may consider and determine whether such bias or prejudice has colored the testimony of the witness so as to affect the desire and capability of that witness to tell the truth.
You should give the testimony of each witness such weight as in your judgment it is fairly entitled to receive.____________________________________ Comment: The 1978 version of this instruction contained the sentence--"If there is any conflict in the testimony, it is your function to resolve the conflict and to determine where the truth lies." The Committee deleted that sentence in the 2002 edition. Although there had not been any D.C. Court of Appeals case law addressing whether such an instruction is appropriate, that language suggested that the jury was obliged to make an ultimate determination of historical truth. In fact, the jury is only obliged to determine whether the evidence, including the testimony of witnesses, establishes guilt beyond a reasonable doubt. The jury is free to conclude that the government has met or failed to meet its burden of proof without the jury ever "determin[ing] where the truth lies." Nor need the jury "resolve conflict[s]" in the testimony; the jury is free to leave any such conflict unresolved, and may indeed find that the very existence of such a conflict, resolvable or not, diminished the strength of the government's case. See U.S. v. Wilson, 160 F.3d 732, 747, 333 U.S. App. D.C. 103 (1998) (while holding that it was not plain error to give the language found in the 1978 edition, it noted that the Court "has expressed the view that such an instruction is inconsistent with otherwise adequate burden of proof and reasonable doubt instructions"); U.S. v. Rawlings, 73 F.3d 1145, 1148-49, 315 U.S. App. D.C. 363 (1996) ("[T]he jurors were not, as the court erroneously instructed, required to decide whom to believe or what actually occurred. They had to determine only whether the Government proved what it alleged had happened beyond a reasonable doubt. The court's emphasis on resolving the factual dispute was plainly inconsistent with its otherwise adequate burden of proof and reasonable doubt instructions."). The instruction reflects the well-established law that a jury is always free to consider a witness' demeanor in evaluating the witness' credibility. "Regardless of [his] response, the jury could have assessed [the witness's] truthfulness and veracity by defense counsel's probe ... and have viewed [his] testimony with greater skepticism." Lawrence v. U.S, 482 A.2d 374, 377 (D.C. 1984) ; Scull v. U.S., 564 A.2d 1161, 1166-67 (appellant entitled not only to answers to his questions, but also to have jury "exposed to [witnesses'] demeanor in answering them"); Barber v. Page, 390 U.S. 719, 725 (1968) (confrontation "includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness"); IIIA Wigmore On Evidence, 946 (Chadbourn rev. 1970) ("The witness' demeanor ... is always assumed to be in evidence"); Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) (L. Hand, J.) (" '[D]emeanor' is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are ... Moreover, such [demeanor] evidence may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies."). The Committee has left the brackets around the fourth paragraph. If evidence of inconsistencies or discrepancies has been introduced at trial, then the court should exercise its discretion when deciding whether to include this paragraph. See generally U.S. v. Glover, 731 F.2d 41, 48, 235 U.S. App. D.C. 194 n. 12 (1984) (noting that trial court had discretion to decide whether to give the bracketed paragraph and citing cases which had approved the predecessor to Instruction 2.200--which did not contain this paragraph); 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 15.01, pp. 350-64 (5th ed. 2000).
This general credibility instruction, in the absence of a specific credibility instruction, may in some cases be sufficient. See Mitchell v. U.S., 609 A.2d 1099 (D.C. 1992) (not error to fail to give instruction regarding perjurer's testimony because the instructions [2.11] sufficiently apprised the jury regarding issues of credibility); Ali v. U.S., 581 A.2d 368, 378 (D.C. 1990) (failure to give accomplice instruction did not constitute plain error when court gave general instruction regarding credibility); Powell v. U.S., 414 A.2d 530, 533 (D.C. 1980) (credibility of witnesses is always at issue when there is evidence which conflicts with their testimony, but the general credibility instruction adequately placed this question before the jury; no error in the trial court's refusal to give the specific instruction on prior inconsistent statements); Coleman v. U.S., 379 A.2d 951 (D.C. 1977) (where the jury is adequately instructed generally about determining the credibility of all witnesses, the trial court may properly refuse to deliver specialized instructions focusing on specific witnesses or classes of witnesses, absent exceptional circumstances); U.S. v. Bowman, 609 F.2d 12, 197 U.S. App. D.C. 246 (1979) (when prosecution witness testified that he had not told the entire truth at a previous bank robbery trial and trial court instructed jury on credibility of witnesses, the trial court did not commit reversible error by refusing to give the defendant's proffered instruction in which this witness was called an admitted perjurer); U.S. v. Lee, 506 F.2d 111, 120, 165 U.S. App. D.C. 50 (1974) (trial judge should use sound discretion when instructing the jury on the credibility of any witness; any such instruction should provide a fair and balanced perspective as context for deliberations; court should avoid giving "special warning[s]" which may ... "unduly tilt[] the jury's consideration"). See generally U.S. v. Best, 563 F. Supp. 1075, 1079 (D.D.C. 1983) (court refers favorably to "common-sense tests" in this instruction); 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 15.01, pp. 350-64 (5th ed. 2000); Fed. R. Evid. 104(e) (a party has the right to introduce to the jury evidence relevant to weight or credibility). Cross references: As to evaluation of the credibility of specific witnesses, see No. 2.201, Child's Testimony; No. 2.202, Accomplice's Testimony; No. 2.204, Testimony of Immunized Witness; No. 2.205, Informer's Testimony; No. 2.206, Perjurer's Testimony; No. 2.207 Police Officer's Testimony; No. 2.209, Defendant as a Witness.
Page 62
33 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.201 Instruction 2.201 CHILD'S TESTIMONY
You have heard the testimony of [name of child witness], a child witness. As in the case of all other witnesses, you are the sole judges of the credibility of the child who has testified in this case. In evaluating the child's credibility, you may consider the same factors that you use in evaluating the testimony of any witness. However, you may also consider other factors, such as his/her age, his/her ability to distinguish truth from falsehood and to understand the seriousness of his/her testimony, and his/her ability to understand and to answer those questions. [In addition, a child may be more influenced than an adult by the way a question has been asked.] You should give his/her testimony as much weight as in your judgment it deserves.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The District of Columbia Court of Appeals has held that 'a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.' " Hicks v. U.S., 658 A.2d 200, 202 (D.C. 1995) (citing State v. James, 560 A.2d 426, 434 (Conn. 1989)) . The Court also noted that "[i]n the absence of some unusual circumstance necessitating a special instruction, a general credibility instruction is ordinarily sufficient." Id. Accord Brown v. U.S., 840 A.2d 82, 96 (D.C. 2004) ("A trial judge has discretion to determine how to instruct a jury about a child witness because the judge has heard all the evidence and thus is best equipped to decide what specific guidance may or may not be needed to aid the jury in properly weighing the testimony."). The question of whether a child is competent to testify (as opposed to the assessment of a child's credibility) is a question of law to be decided by the trial court. See, e.g., Barnes v. U.S., 600 A.2d 821, 823-25 (D.C. 1991) ("(1) the child must be able to recall the events which are the subject of the
testimony; and (2) the child must understand the difference between truth and falsehood and appreciate the duty to tell the truth"); Barrera v. U.S., 599 A.2d 1119, 1125-26 (D.C. 1991) (no abuse of discretion to refuse to order a competency exam or disclosure of child's school records); In re A.H.B., 491 A.2d 490, 492 (D.C. 1985) (a voir dire is not necessarily mandatory when determining competency); Smith v. U.S., 414 A.2d 1189, 1197 (D.C. 1980) (eight-year-old girl found competent to testify about a murder that occurred when she was only three and a half). See also Beale v. U.S., 465 A.2d 796, 802 n.8 (D.C. 1983) (where defense presented testimony of ten-year-old child, prosecution was entitled to remind jury during closing argument of uncertainty of testimony given by children, notwithstanding that characterizing children's testimony as being "suspect" may not "have been the most appropriate word"); Brown v. U.S., 388 A.2d 451, 458 (D.C. 1978) (it was not improper to allow counsel to conduct voir dire examination of an eleven-year-old witness in the presence of the jury concerning competency to testify, even though a prior voir dire directed to the same issue had been held out of the presence of the jury); U.S. v. Comer, 421 F.2d 1149, 1152, 137 U.S. App. D.C. 214 n.3 (1970) (question whether to permit child of tender years to testify at criminal trial is left to sound discretion of trial judge). The Fifth Edition substitutes "a child may be more influenced than an adult by the way a question has been asked" for "a child may be more suggestible than an adult" in the second to last sentence which is bracketed. The revision is intended only to clarify what "suggestible" mean. In Barnes v. U.S., 600 A.2d 821, 825 (D.C. 1991) , the court cautioned that the prior instruction, that "children are likely to be more suggestible than adults" was too strong and to some degree usurped the jury's function in evaluating the child witness' testimony"; the court concluded that the modified instruction "fully informed the jury of factors to be considered in evaluating the child witness' testimony and left to their judgment the weight to be accorded each factor, including susceptibility to suggestivity". This bracketed sentence should only be given if suggestibility is an issue in the case. Cross references: No. 4.401, Sexual Abuse of a Child; No. 4.403, Sexual Abuse of a Ward Patient, Client, Prisoner.
Page 64
34 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.202 Instruction 2.202 ACCOMPLICE'S TESTIMONY
You have heard testimony from [name of witness]. The government is permitted to use a witness who testifies that s/he participated in the offense(s) charged against the defendant(s), although the testimony of such a witness should be considered with caution. You should give his/her testimony as much weight as in your judgment it deserves.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. Superior Court In Superior Court, this instruction is generally required whenever an accomplice testifies for the government. See Johnson v. U.S., 820 A.2d 551, 559-60 and n.6 (D.C. 2003) (although giving a cautionary instruction on accomplice testimony is "the usual practice," it was not error to fail to give the instruction sua sponte); Price v. U.S., 531 A.2d 984, 986 (D.C. 1987) (giving former Instruction 2.22 is the "usual practice"); Mathis v. U.S., 513 A.2d 1344, 1350 (D.C. 1986) (former Instruction 2.22 is a "proper" instruction); Pryor v. U.S., 503 A.2d 678, 683 (D.C. 1986) (former Instruction 2.22 referred to as a " 'standard' " charge); Ali, 581 A.2d at 377 (it is " 'the better practice' for the trial court to instruct the jury sua sponte concerning accomplice testimony when appropriate and ... failure to so instruct when requested may be reversible error"; failure to give accomplice instruction sua sponte not plain error here as accomplices' testimony was corroborated and witnesses' interests had been made clear to the jury); Fields v. U.S., 396 A.2d 522, 526 (D.C. 1978) . Cf. Cool v. U.S., 409 U.S. 100 (1972) (reversible error to give standard accomplice instruction regarding a defendant's accomplice whose testimony exculpated the defendant and incriminated the accomplice); Jacobs v. U.S., 747 A.2d 1134, 1135 (D.C. 2000) (refusal to
give accomplice instruction not an abuse of discretion; general witness credibility instruction was sufficient); Mitchell v. U.S., 609 A.2d 1099, 1111-12 (D.C. 1992) (instruction not required where evidence not sufficient that witness was an accomplice); Tabron v. U.S., 410 A.2d 209, 214-15 (D.C. 1979) (refusal to give any of three unidentified special jury instructions requested by the defense as to witnesses who were not charged or had charges dropped was not error, citing Lee, given the court's specific reference to a witness' possible interest in protecting himself from prosecution); 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 15.04, pp. 394-407 (5th ed. 2000). This instruction uses the term "person who participated in the offense" instead of the word "accomplice" because of the District of Columbia Court of Appeals decision in Byrd v. U.S., 870 A.2d 71, 73 (D.C. 2005) . The District of Columbia Court of Appeals held that the trial court had not abused its discretion in "adhering to that standard formulation" of Instruction 2.202. The court noted that "while the description of an accomplice as one who 'aids, assists, advises or encourages another person in the commission of a crime' certainly echoed the government's joint liability theory, it did not endorse it--rather ... in the context it gave the jury the very different message to scrutinize carefully the testimony of one who had implicated appellant in the crime along with himself." Id. Nevertheless, the Court of Appeals suggested that this Committee might revise Instruction 2.202 by removing such words as "accomplice" or "immunity," in part because of the "rather opprobrious connotation" such words may have "against a defendant." Id. at 74 (citing State v. Begyn, 167 A.2d 161, 171 (N.J. 1961)) . In light of Byrd's further reference to Price v. U.S., 531 A.2d 984, 986 n.2 (D.C. 1987) , the phrase "a witness who testifies that s/he participated in the offense(s) charged against the defendant(s)" has been substituted for the word "accomplice." Accordingly, the definition of "accomplice" has been deleted. The language has otherwise been streamlined. When a witness falls within the ambit of more than one specialized credibility instruction, the court may limit itself to one of the relevant instructions or it may combine the relevant instructions into one credibility instruction. See, e.g., Pryor v. U.S., 503 A.2d 678, 683 (D.C. 1986) (where accomplice instruction was given, court's refusal to give perjurer instruction not error); Sherer v. U.S., 470 A.2d 732, 741 (D.C. 1983) (same as Pryor); U.S. v. Bass, 535 F.2d 110, 117, 175 U.S. App. D.C. 282, 289 n.11 (1976) (accomplice instruction unnecessary where addict-informer instruction given); Leonard, 161 U.S. App. D.C. at 43, 494 F.2d at 962 (accomplice instruction may be combined with an immunity instruction); cf. U.S. v. Thorne, 527 F.2d 840, 841-42, 174 U.S. App. D.C. 57, 58-59 (1975) (distinguishing an informer from an accomplice). U.S. District Court The U.S. Court of Appeals for the District of Columbia Circuit has decided that this instruction need not be given in U.S. District Court when the testimony of an accomplice is materially corroborated. See U.S. v. Laing, 889 F.2d 281, 287, 281 U.S. App. D.C. 266, 272 (1989) (adopting approach taken in U.S. v. Lee, 165 U.S. App. D.C. 50, 59, 506 F.2d 111, 120 (1974)) ; cf. Fields v. U.S., 396 A.2d 522, 526 (D.C. 1978) (failure to give an accomplice instruction not plain error when the testimony of the accomplice is corroborated by other evidence). However, if the testimony of an accomplice is not materially corroborated, it may be reversible error for the District Court to refuse to give this instruction upon request, and it may be plain error for the court to fail to give it even in the absence of a request. See, e.g., Laing, 281 U.S. App. D.C. at 272, 889 F.2d at 287 ; U.S. v. Leonard, 494 F.2d 955, 960, 161 U.S. App. D.C. 36, 41 (1974) ; Stith v. U.S., 361 F.2d 535, 536, 124 U.S. App. D.C. 81, 82 (1966) (trial court should instruct jury on motive of accomplice in testifying); see also U.S. v. Dickerson, 163 F.3d 639, 643, 333 U.S. App. D.C. 348 n.5 (1999) ("We have held that, in certain circumstances, it may be error for
a district court to decline to instruct the jury to treat [the] uncorroborated testimony [of an accomplice] with caution and to scrutinize it with care."). For cases discussing what constitutes material corroboration, see, e.g., Laing, 281 U.S. App. D.C. at 272-73, 889 F.2d at 287-88 ; Ali v. U.S., 581 A.2d 368, 378 (D.C. 1990) ; U.S. v. Lee, 506 F.2d 111, 120-21, 165 U.S. App. D.C. 50, 59-60 (1974) . Cross references: No. 2.204 Testimony of Immunized Witnesses; No. 2.205, Informer's Testimony; No. 2.206, Perjurer's Testimony.
Page 67
35 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.203 Instruction 2.203 WITNESS WITH A PLEA AGREEMENT
You have heard evidence that [name of witness] entered into a plea agreement with the government pursuant to which [name of witness] agreed to testify truthfully in this case and the government agreed to [dismiss a charge against him/her] [and] [decline prosecution of a charge against him/her] [and] [bring [name of witness's] cooperation to the attention of his/her sentencing judge] [and] [consider filing papers with his/her judge which would permit that judge to impose a more lenient sentence than that judge might otherwise be able to impose]. The government is permitted to enter into this kind of plea agreement. You, in turn, may accept the testimony of such a witness and convict the defendant on the basis of this testimony alone, if it convinces you of the defendant's guilt beyond a reasonable doubt. A witness who has entered into a plea agreement is under the same obligation to tell the truth as is any other witness; the plea agreement does not protect him/her against a prosecution for perjury or false statement, should s/he lie under oath. However, you may consider whether a witness who has entered into such an agreement has an interest different from other types of witnesses. You may consider whether the plea agreement the witness entered into with the government has motivated him/her to testify falsely against the defendant. The testimony of a witness who has entered into a plea agreement should be considered with caution. You should give the testimony as much weight as in your judgment it deserves.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The purpose of this instruction is to alert the jury to potential credibility problems with witnesses who have entered into plea bargains in exchange for their testimony.
Depending on the nature of the plea agreement, the court should select the appropriate descriptions from the bracketed language in the first paragraph. The final bracketed phrase in the first paragraph is more likely to apply to a witness with a pending federal case. This instruction differs from Instruction 2.204, Testimony of Immunized Witness, because Instruction 2.204 deals only with witnesses who are testifying pursuant to a grant of immunity, but not necessarily a plea bargain. If an accomplice is testifying against a defendant pursuant to a plea agreement, the court may want to combine this Instruction with Instruction 2.202, Accomplice's Testimony, and edit the combined instructions to avoid redundancy. See generally Price v. U.S., 531 A.2d 984, 987 (D.C. 1987) (holding that a seperate credibility instruction is not required when an alternative instruction cautions the jury concerning the witness' testimony and the jury is made fully aware of the witness's plea agreement); Ali v. U.S., 581 A.2d 368, 377 (D.C. 1990) (same as Price); McCrimmon v. U.S., 853 A.2d 154, 165 n.23 (D.C. 2004) (the testimony of witnesses with plea agreements is not "inherently incredible"; so long as pleas are disclosed, issues of credibility remain within providence of jury). Cross references: No. 2.202, Accomplice's Testimony; No. 2.204, Testimony of Immunized Witnesses; No. 2.205, Informer's Testimony; No. 2.206, Perjurer's Testimony.
Page 69
36 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.204 Instruction 2.204 TESTIMONY OF IMMUNIZED WITNESS
You have heard evidence that [name of witness] has received immunity. This means that the testimony of the witness may not be used against him/her in any criminal case. You should consider whether a witness who realizes that s/he may [obtain his/her own freedom] [receive a benefit] [avoid prosecution] by incriminating another may have a motive to lie. However, you may also consider that the witness is under the same obligation to tell the truth as is any other witness, because the grant of immunity does not protect him/her against a prosecution for perjury or false statement, should s/he lie under oath. The testimony of a witness to whom immunity has been granted should be considered with caution. You should give the testimony as much weight as in your judgment it deserves.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The bracketed language reflects a variety of possible outcomes that could potentially affect the witness's testimony. See generally U.S. v. Sarvis, 523 F.2d 1177, 1180, 173 U.S. App. D.C. 228, 231 (1975) (established that a cautionary instruction for immunized witnesses is appropriate for the same reasons that a cautionary instruction is appropriate for accomplice and paid informant testimony); U.S. v. Leonard, 494 F.2d 955, 961, 161 U.S. App. D.C. 36, 42 (1974) (when the government offers immunity to a lesser co-conspirator, or accomplice, as an incentive to testify against others more significantly involved, the co-conspirator or accomplice may realize that he can procure his own freedom by incriminating another, and therein lies his motivation to falsify). However, this instruction need not be given where Instruction No. 2.202 (Accomplice's Testimony) has been given. See Pryor v. U.S., 503 A.2d 678, 683 (D.C. 1986) ("court was not required to give 'double instructions' "); Price v. U.S., 531 A.2d 984, 987 (D.C. 1987) (rejecting argument that immunized witness instruction should have been
given where modified accomplice instruction was given and plea agreement fully aired at trial); U.S.. v. Leonard, supra at 961-62 (defendant not entitled to double instructions for witnesses who were accomplices and granted immunity; district court should merge into a single instruction). As to whether a special immunized instruction is necessary where the witness is not an accomplice, see U.S. v. Rubin, 609 F.2d 51, 64-5 (2d Cir. 1979) , aff'd, 449 U.S. 424 (1980) (general credibility instruction coupled with reference to fear of prosecution was "quite adequate," and immunity instruction was not required, since the issue of immunity had been fully explored in cross-examination and closing argument; distinguishing U.S. v. Leonard on the ground that "the witnesses testifying under immunity [in Leonard] were also accomplices"). Cross references: No. 2.202, Accomplice's Testimony; No. 2.205, Informer's Testimony; No. 2.206, Perjurer's Testimony.
Page 71
37 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.205 Instruction 2.205 INFORMER'S TESTIMONY
You have heard evidence that [name of witness] is an informer. S/he has an arrangement with the government [to help the government obtain introductions to persons suspected of violating the law] [and] [to help the government obtain information]. In exchange, s/he receives [a benefit in a pending case] [money] [and] [other personal benefit]. The use of such persons is a recognized means of detecting criminal conduct and the government is permitted to call such persons as witnesses. However, when an informer testifies, his/her testimony should be considered with caution. You may consider whether the benefit this person receives from the government has motivated him/her to testify falsely against the defendant. You should give the testimony as much weight as in your judgment it deserves.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. As to whether particular witnesses are treated as informers, see U.S. v. Thorne, 527 F.2d 840, 841, 174 U.S. App. D.C. 57, 58 (1975) (cooperating co-defendant more properly treated as accomplice than informer). As to permissible scope of examination of a government informant, see, e.g., Sherer v. U.S., 470 A.2d 732, 735-737 (D.C. 1983) ; Smith v. U.S., 389 A.2d 1356, 1370 (D.C. 1978) (the fact that the complainant had been an informant in other cases was not a proper subject of cross-examination); Springer v. U.S., 388 A.2d 846, 857 & n.9 (D.C. 1978) (even if informant did not receive payment in a particular case, his prior relationship with the authorities was proper subject for cross-examination); cf. U.S. v. Slade, 627 F.2d 293, 303-04, 200 U.S. App. D.C. 240, 250-51 (1980) (refusal to admit psychiatric records of government informant not reversible error where jury had substantial information concerning informant's drug use, criminal record and desire to avoid imprisonment).
Superior Court With respect to Superior Court, a general credibility instruction suffices where an informer's testimony is corroborrated in material degree and does not necessitate "a point-for-point corroboration..." Accord Jacobs v. U.S., 747 A.2d 1134, 1136 (D.C. 2000) ; Tabron v. U.S., 410 A.2d 209, 214-15 (D.C. 1979) (court's refusal to give informer instruction not error where testimony was corroborated, defendant was able to cross-examine the witness regarding his interests and court added a reference to whether the witness has "any interest in protecting himself from prosecution" to the general credibility instruction); Fields v. U.S., 396 A.2d 522, 525-26 (D.C. 1978) (failure to give accomplice or informer instruction, sua sponte, not plain error where testimony of witness was corroborated). U.S. District Court In U.S. District Court, this instruction is not required where there is significant corroboration for the informant's testimony. U.S. v. Lee, 506 F.2d 111, 123-24, 165 U.S. App. D.C. 50, 62-63 (1974) ; see also Hardy v. U.S., 343 F.2d 233, 234, 119 U.S. App. D.C. 364, 365 (1964) (where testimony was corroborated, refusal to give informer instruction was not an abuse of discretion, but court would be "well advised" and it would be "sounder" to give it); cf. U.S. v. Herron, 567 F.2d 510, 514-15, 185 U.S. App. D.C. 403, 407-08 (1977) (failure to give informer instruction, sua sponte, not plain error where informant's testimony was corroborated); U.S. v. Hill, 470 F.2d 361, 365, 152 U.S. App. D.C. 213, 217 n.10 (1972) ("[t]he special interest of informers may be singled out and brought to the attention of the jury") (emphasis added) (dicta); Bush v. U.S., 126 U.S. App. D.C. 174, 176 & n.2, 375 F.2d 602, 604 & n.2 (1967) (informants should "in some circumstances be the subject of a cautionary instruction when requested") (dicta). This instruction, however, should be given in District Court when the testimony of an informer is uncorroborated or corroborated to only a minor extent. Lee, 165 U.S. App. D.C. at 60, 506 F.2d at 121 ; U.S. v. Kinnard, 465 F.2d 566, 570, 150 U.S. App. D.C. 386, 390 (1972) (when this instruction is requested with regard to a paid informant, "failure to give it is reversible error unless the informer's testimony is fully corroborated by other eyewitnesses... [The Court of Appeals has] also urged trial courts to caution the jury about the unreliability of informant testimony even in the absence of a request"); Fletcher v. U.S., 158 F.2d 321, 322, 81 U.S. App. D.C. 306, 307 (1946) (special cautionary instruction required when there is uncorroborated testimony from a paid informant). Cross references: No. 2.202, Accomplice's Testimony; No. 2.204, Testimony of Immunized Witnesses; No. 2.206, Perjurer's Testimony.
Page 73
38 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.206 Instruction 2.206 PERJURER'S TESTIMONY
The testimony of an admitted or convicted perjurer should be considered with caution and scrutinized with care.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. A refusal to give this instruction, despite the existence of an evidentiary predicate for it, is not error where the facts of the perjury have been made known to the jury and the jury has been given the general instruction on credibility of witnesses. Skyers v. U.S., 619 A.2d 931 (D.C. 1993) ; Mitchell v. U.S., 609 A.2d 1099, 1111 (D.C. 1992) ("not error because the instructions [2.11] sufficiently apprised the jury regarding issues of credibility"); U.S. v. Bowman, 609 F.2d 12, 20, 197 U.S. App. D.C. 246, 254 (1979) ("no reversible error," noting that other instructions on credibility of witnesses, conflicting testimony of a witness, and impeachment by conviction had been given). It is also not error to decline to give this instruction where the accomplice instruction is given instead, for a double instruction is not required, although a merged instruction would also be appropriate. Pryor v. U.S., 503 A.2d 678, 683 (D.C. 1986) (no error in refusal to give the " 'standard' " perjurer instruction); Sherer v. U.S., 470 A.2d 732, 741 (D.C. 1983) (no reversible error in refusal to give the perjurer "standard" instruction). See generally 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 15.10 (5th ed. 2000). See also Smith v. U.S., 312 A.2d 781 (D.C. 1973) (no error where police officer admitted lying at a preliminary hearing regarding other witnesses to a crime and trial court refused to give this instruction but advised jury it could weigh explanation given by police officer for having previously lied.); Cf. Jones v. U.S., 893 A.2d 564, 567 (D.C. 2006) (dismissal of indictment not warranted baesd on false testimony in grand jury where the witnesses' inconsistent stories in the grand jury and at trial were fully arrayed before the petit
jury, under instructions directing it, inter alia, to scrutinize with care "the testimony of an admitted ... perjurer" and to consider such inconsistencies in evaluating credibility). Cross references: No. 2.202, Accomplice's Testimony; No. 2.204, Testimony of Immunized Witnesses; No. 2.205, Informer's Testimony.
Page 75
39 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.207 Instruction 2.207 POLICE OFFICER'S TESTIMONY
A police officer's testimony should be evaluated by you just as any other evidence in the case. In evaluating the officer's credibility, you should use the same guidelines that you apply to the testimony of any witness. In no event should you give either greater or lesser weight to the testimony of any witness merely because s/he is a police officer.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. A similar but abbreviated instruction was approved in Bush v. U.S., 375 F.2d 602, 605, 126 U.S. App. D.C. 174, 177 n. 6 (1967) (proper to refuse an instruction that the uncorroborated testimony of a police undercover officer should be viewed with suspicion); see also Braxton v. U.S., 852 A.2d 941, 943-44 (D.C. 2004) (upholding trial court's removal of juror, pursuant to Rule 23(b) of the Superior Court Rules of Criminal Procedure, for failure to adhere to this instruction); Pynes v. U.S., 385 A.2d 772 (D.C. 1978) , vacated on other grounds, 446 U.S. 903 (1980) (instruction warning jury that it should not give greater or lesser credence to testimony of any witness merely because he is a police officer should be entrusted to trial court's discretion; such judgment should take into account that the usual instructions on credibility and reasonable doubt are given); cf. Jenkins v. U.S., 541 A.2d 1269, 1275 (D.C. 1988) (even when this instruction is given at the end of the trial, such an instruction is not a substitute for a voir dire question regarding police credibility before trial). Consistent with the principles incorporated in Instruction 2.207, a prosecutor may not argue that a police officer's testimony is entitled to greater credence because he is a police officer. Jones v. U.S., 579 A.2d 250, 254 (D.C. 1990) ; Hinkel v. U.S., 544 A.2d 283, 285-86 (D.C. 1988) . It is, however, permissible for
the prosecutor to argue a police officer's credibility, Hinkel, 544 A.2d at 285-86 , or to contrast a police officer's credibility with the credibility of other witnesses, Jones, 579 A.2d at 254 . See also Jolly v. U.S., 704 A.2d 855 (D.C. 1997) (citing to instruction).
Page 77
40 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.208 Instruction 2.208 RIGHT OF DEFENDANT NOT TO TESTIFY
Every defendant in a criminal case has an absolute right not to testify. [Name of defendant] has chosen to exercise this right. You must not hold this decision against him/her, and it would be improper for you to speculate as to the reason or reasons for his/her decision. You must not assume the defendant is guilty because he/she chose not to testify.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction must be given upon the request of the defendant. James v. Kentucky, 466 U.S. 341 (1984) (an instruction that the jury should draw no adverse inferences from the failure of the defendant to testify is constitutionally required whenever the defendant is seeking to invoke the substance of this right); Carter v. Kentucky, 450 U.S. 288 (1981) (court's refusal to give an instruction such as this, at the defendant's request, is constitutional error); Peoples v. U.S., 640 A.2d 1047, 1057-58 (D.C. 1994) ("trial court instructed the jury that [the defendant] was not required to testify and that they should not speculate on his reasons for not doing so, thus mitigating any possible harm"). Although it may be wise for a trial judge not to give this cautionary instruction over a defendant's objection, if a judge gives such an instruction in those circumstances, it does not violate the constitutional rights of the defendant. Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978) . See U.S. v. Fulcher, 626 F.2d 985, 200 U.S. App. D.C. 121 (1980) (following Lakeside). Prior to Lakeside, the U.S. Court of Appeals for the D.C. Circuit had suggested that it was a better practice, when co-defendants did not disagree, for the court to respect the decision of defense counsel as to whether or not to give this instruction. Where, however, one co-defendant requests the instruction but another co-defendant does not
want it given, the court does not commit error by granting one defendant's request for the instruction over the objection of co-defendants. U.S. v. Williams, 521 F.2d 950, 172 U.S. App. D.C. 290 (1975) (citing former Instruction 2.26 at 954). See generally 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 15.14 (5th ed. 2000). A prosecutor's comment on the defendant's failure to testify may constitute reversible error. See, e.g., Griffin v. California, 380 U.S. 609, 614 (1965) (the trial court's and the prosecutor's comments on the defendant's failure to testify violates the Self-Incrimination Clause of the Fifth Amendment); U.S. v. Hasting, 461 U.S. 499 (1983) (improper comment on defendant's failure to testify made during prosecutor's closing argument does not require reversal if it can be said that the error was harmless beyond a reasonable doubt); Brewer v. U.S., 559 A.2d 317, 323 (D.C. 1989) (a prosecutor's remark that no one had taken the stand to explain why the defendant "did it" was improper but resulted in harmless erro r because it "was only one short sentence in a lengthy closing argument"); Reed v. U.S., 485 A.2d 613, 620 (D.C. 1984) (test for determining if a prosecutor's comment on the defendant's failure to testify resulted in substantial prejudice is whether the prosecutor's language "was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify," and whether the judgment was substantially swayed by the error); Bowler v. U.S., 480 A.2d 678, 679 (D.C. 1984) (cumulative impact of prosecutor's continual references to the defendant's failure to testify was sufficiently prejudicial to have denied him a fair trial); Boyd v. U.S., 473 A.2d 828, 833 (D.C. 1984) (for prosecutor's "where is the evidence" comment to constitute reversible error, it must be established that none other than the defendant, who chose to remain silent, could have contradicted the government's evidence); U.S. v. Harris, 627 F.2d 474, 476, 201 U.S. App. D.C. 15 (1980) (prosecutor need not directly comment on defendant's silence to violate the rule, so long as the language used is such that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify). See generally Allen v. U.S., 603 A.2d 1219, 1225 n.11 (D.C. 1992) (prosecutor may comment on failure of defense, as opposed to the defendant, to counter or explain the evidence).
Page 79
41 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.209 Instruction 2.209 DEFENDANT AS WITNESS
A defendant has a right to become a witness in his/her own behalf. His/Her testimony should not be disbelieved merely because s/he is the defendant. In evaluating his/her testimony, however, you may consider the fact that the defendant has [a vital] [an] interest in the outcome of this trial. As with the testimony of any other witness, you should give the defendant's testimony as much weight as in your judgment it deserves.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No substantive changes were made in the Fifth Edition. The Committee recommends that this instruction not be given over the objection of the defendant. Although in Clifford v. U.S., 532 A.2d 628, 640-41 (D.C. 1987) , the Court of Appeals stated that the 1978 version of this instruction was "not so harmful to the defendant in this case as to warrant reversal," it probably should not be given over a defendant's objection because it merely repeats language already contained in the instruction on credibility of witnesses. See White v. U.S., 647 A.2d 766, 769 n. 5 (D.C. 1994) ("In future cases, the trial court should proceed quite cautiously in crafting special instructions for jurors concerning the credibility of defendants testifying in their own defense lest the general efficiency of the standard credibility instructions is thereby undermined."). The Clifford court also observed that "instructions singling out the defendant's interest in the trial have received a good deal of criticism." Clifford, 532 A.2d at 640 (citations omitted). See McGrier v. U.S., 597 A.2d 36, 46 (D.C. 1991) (noting in dictum that "[w]hile a trial judge may not give an instruction 'singling' out the defendant, there is no rule that prevents a prosecutor from making an argument that identifies the defendant's interest in the outcome of the trial"). The Clifford court further indicated that it " 'would prefer that the defendant not be singled out' but instead 'were included by reference in the court's general
instructions as to all witnesses,' " and that "an instruction adverting to the defendant's vital interest could be more appropriately given if there are vital interests of various government witnesses that also can be mentioned, such that the jury would not perceive that the defendant has been singled out." Clifford, 532 A.2d at 640 . But see Johnson v. U.S., 636 A.2d 978 (D.C. 1994) (citing this instruction with approval; it was permissible for judge in a bench trial to consider possible punishment defendant was facing when evaluating his credibility); Ruffin v. U.S., 524 A.2d 685, 687, 706 (D.C. 1987) (upholding this instruction). Given the holding in Clifford, the language of this instruction remains substantially the same. The 2002 edition bracketed the word "vital" because in Superior Court, some judges were giving the instruction with the word "vital" and some were not. One of the factors noted by the court in Clifford for finding no harm in the use of the word "vital" was that the trial court had not warned the jury about the defendant "while remaining silent about other witnesses [such as government informers] with equally strong personal interests in the outcome." Clifford, 532 A.2d at 640 (citing U.S. v. Reid, 410 F.2d 1223, 1227-28 (7th Cir. 1969)) . See generally Portuondo v. Agard, 529 U.S. 61, 71 (2000) (characterizing instruction at issue in Reagan v. U.S., 157 U.S. 301, 304 (1895) , as "perfectly proper"; words at issue in Reagan were--"[t]he deep personal interest which [the defendant] may have in the result of the suit should be considered by the jury in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit.").
Page 81
42 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.210 Instruction 2.210 FALSE OR INCONSISTENT STATEMENT BY DEFENDANT
You have heard evidence that [name of defendant] made statements in explanation of his/her actions that may have been false or inconsistent. It is up to you to decide whether s/he made the statements, and whether they were, in fact, false or inconsistent. If you find s/he did make such statements and that they were false or inconsistent, you may consider such evidence as tending to show his/her feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that s/he may have given such statements for reasons [unrelated to this case or] consistent with his/her innocence. If you find that [name of defendant] made a false or inconsistent statement in explanation of his/her actions, you should give the testimony as much weight as in your judgment it deserves.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The language in this instruction is designed to avoid any suggestion that the court believed the defendant did, in fact, make false or inconsistent statements. This instruction should not be given if the defendant's statements were obtained in violation of Miranda. In that situation, the defendant's statements would be admissible solely to impeach if the defendant testified at trial, but would not be admissible to prove the defendant's consciousness of guilt. See Instruction 2.216, Evaluation of Prior Inconsistent Statement of a Witness. Evidence of false statements by a defendant may be admissible to prove the defendant's consciousness of guilt. See, e.g., Riley v. U.S., 790 A.2d 538, 541 (D.C. 2002) ("government was entitled to prove in its case-in-chief that Riley made false exculpatory statements to the police that evinced consciousness of guilt"); Nelson v. U.S., 601 A.2d 582 (D.C. 1991) (false statement made by a defendant in explaining his
conduct which was the subject of a criminal charge against him was admissible as tending to show consciousness of guilt); Mills v. U.S., 599 A.2d 775, 783-84 (D.C. 1991) ("[f]alse exculpatory statements after the commission of a crime may give rise to an inference of consciousness of guilt, from which guilt itself may be inferred"); Irick v. U.S., 565 A.2d 26, 30 (D.C. 1989) (defendant's false statements to police relevant to show consciousness of guilt and guilt of selling drugs). See also Wright v. West, 505 U.S. 277, 296, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992) (if jury did not believe the defendant, it was entitled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt) (Thomas, J., writing for three members of the court); Jacobs v. U.S., 747 A.2d 1134, 1136-37 (D.C. 2000) (jurors need not be told that they are required to make a threshold finding of materiality before considering the defendant's prior inconsistent statements as revealing possible "consciousness of guilt"). Cross reference: No. 2.216, Evaluation of Prior Inconsistent Statement of a Witness.
Page 83
43 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.211 Instruction 2.211 EFFECT OF REFUSAL OF WITNESS TO ANSWER QUESTION
The law requires every witness to answer all questions put to him/her, unless the court rules otherwise. In this case, [name of defendant] [name of witness] refused to answer a question after being instructed by the court to do so. You must not guess what [name of defendant] [name of witness] would have said if s/he had not refused to answer the question. However, in determining what weight to give the [defendant's] [witness's] other testimony, you may consider that the [name of defendant] [name of witness] refused to answer [a] [some] question[s].____________________________________ Comment: This instruction is to be given when a witness continues to refuse to answer a question after being instructed to do so by the court. As an alternative to giving this instruction, it may be appropriate to strike all or a portion of the witness's testimony. See, e.g., Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988) ; U.S. v. Doddington, 822 F.2d 818 (8th Cir. 1987) ; cf. Johnson v. U.S., 418 A.2d 136, 140 (D.C. 1980) . In a case where a government witness refused to answer any questions when on the stand, the court should consider giving the following additional instruction:
You must not hold it against the defendant that [name of government witness] took the stand and refused to answer any questions. See Burkley v. U.S., 373 A.2d 878, 881 (D.C. 1977) (where a government witness refused to answer proper questions, it was proper to give a cautionary instruction telling the jury to draw no inference against the appellant from the witness's refusal to testify); U.S. v. Anderson, 509 F.2d 312, 325, 165 U.S. App. D.C. 390, 403 (1974) (jury told not to draw any inference from the witness's recalcitrance and not to speculate about what the testimony would have been). This instruction should not be given when the witness refuses to answer a question in front of the jury on
the basis of a valid privilege. See Instruction 2.212.
Page 85
44 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.212 Instruction 2.212 INVOCATION OF FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
You have heard [name of witness] assert his/her Fifth Amendment privilege against self-incrimination. The fact that the witness has asserted a privilege does not mean that s/he has done anything wrong. I instruct you that you must not guess what s/he would have said if s/he had not invoked the privilege. You may not in any way hold [name of witness's] assertion of the privilege against him/her. In addition, you may not hold the [name of witness's] assertion of the privilege against either the defendant or the government.____________________________________ Comment: This instruction was added in the 2008 release. If a witness has a valid claim of privilege, the witness should not be required to invoke the privilege in the presence of the jury. See Arnold v. U.S., 511 A.2d 399, 410 (D.C. 1986) ; Bowles v. U.S., 439 F.2d 536, 542, 142 U.S. App. D.C. 26, 32 (1970) (en banc). If, however, a witness's invocation of the Fifth Amendment does inadvertently occur in the presence of the jury, the Committee recommends that this instruction be given. It may be necessary, of course, for the court to hold a hearing on whether the witness has a valid Fifth Amendment privilege before deciding which instruction (2.211 or 2.212) is appropriate.
Page 86
45 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.213 Instruction 2.213 CHARACTER OF DEFENDANT
[Name of defendant] has introduced testimony that [s/he has a good reputation in the community for [character trait] [in the witness's opinion, [name of defendant] is a [character trait] person]. Such evidence may indicate to you that it is unlikely that a [character trait] person would commit the crime charged or it may not. You may consider this evidence along with other evidence in the case [including evidence that contradicts [name of defendant's] character evidence] and give it as much weight as you think it deserves. Notwithstanding the evidence of character, if, after weighing all the evidence, you are convinced beyond a reasonable doubt that [name of defendant] is guilty of the crime charged, it is your duty to find him or her guilty. On the other hand, evidence of good character alone may create a reasonable doubt as to a defendant's guilt, although without it the other evidence would be convincing.____________________________________ Comment: An accused may elect to advance one or more of his character traits as evidence of his innocence and his presentation of his character may be as narrow or as broad as he chooses, so long as it remains relevant and germane to the issues at trial. U.S. v. Lewis, 482 F.2d 632, 637, 157 U.S. App. D.C. 43, 48 (1973) ; U.S. v. Fox, 473 F.2d 131, 134-35, 154 U.S. App. D.C. 1, 4-5 (1972) ; Curry v. U.S., 498 A.2d 534, 544 (D.C. 1985) ; Darden v. U.S., 342 A.2d 24, 26 (D.C. 1975) . See also Rose v. U.S., 879 A.2d 986, 992 (D.C. 2005) (explaining that, in criminal cases, defendant "is generally allowed to raise at trial character traits which are antithetical to the charged offense" while, in civil cases, character evidence is much more limited) (dicta). Given the fact that courts have been cautious about the admission of testimony relating to character, the character traits which are admissible are limited to abstract qualities which reflect an individual's general character traits. Hack v. U.S., 445 A.2d 634, 642 (D.C. 1982) . Therefore, a defendant's reputation for not using drugs is inadmissible because the testimony does not reveal a characteristic quality of the
accused but rather concerns specific acts which could only lead to the conclusion that the defendant did not commit the crime charged. Hack, 445 A.2d at 642-43 . See also Rogers v. U.S., 566 A.2d 69, 73 (D.C. 1989) (en banc), adopting Fed. R. Evid. 405, which prohibits a character witness from testifying about specific acts of the defendant, when character is not otherwise at issue. See Fed. R. Evid. 405(b). Defense counsel should advise the court, either before trial or before the character witness testifies, of an intention to call character witnesses. Counsel can then tell the court which character traits will be put in issue, thereby allowing the court to exercise informed discretion regarding the permitted scope of the prosecution's contemplated cross-examination or rebuttal. Morris v. U.S., 469 A.2d 432, 436 (D.C. 1983) . See also Lewis, 157 U.S. App. D.C. at 54-55, 482 F.2d at 643-44 . With respect to the second paragraph of the instruction, "[t]he right of the accused to raise a defense based on good character is established, as 'such evidence alone, in some circumstances, may be enough to raise a reasonable doubt of guilt.' " Cooper, 353 A.2d at 703 (quoting Michelson v. U.S., 335 U.S. 469 (1948)) . See also Hack, 445 A.2d at 642-43 ; Edgington v. U.S., 164 U.S. 361, 366 (1896) ("The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing."); Lewis, 157 U.S. App. D.C. at 48, 482 F.2d at 637 ; Fox, 154 U.S. App. D.C. at 4-5, 473 F.2d at 134-35 ; Villaroman v. U.S., 184 F.2d 261, 262, 87 U.S. App. D.C. 240, 241 (1950) .
Page 88
46 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.214 Instruction 2.214 CROSS-EXAMINATION OF CHARACTER WITNESS
[Name of witness], who was a character witness for [name of defendant], was questioned regarding previous [arrests] [convictions] [prior acts] of [name of defendant]. These questions were permitted only to test the basis for and reliability of the witness's testimony. They do not establish that those events took place or that [name of defendant] committed the offense charged in this case, or that s/he is a person of bad character.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. This instruction should normally be given immediately after the testimony. Rogers v. U.S., 566 A.2d 69, 79 (D.C. 1989) . In the absence of a request for such an instruction, a court's failure to give this limiting instruction, either immediately or in the general charge to the jury, is subject to review under the plain error standard. Maura v. U.S., 555 A.2d 1015, 1018 (D.C. 1989) . Once the defendant introduces character testimony, the character witness's credibility and reliability may be tested on cross-examination by use of defendant's prior arrests, convictions, or bad acts which are inconsistent with the trait at issue. McFerguson v. U.S., 870 A.2d 1199, 1203 (D.C. 2005) ("It has been a settled practice for many years that opinion or reputation evidence of a character trait may be tested by inquiring whether the witness was aware of specific acts which occurred prior to trial of the case. The purpose is to test the basis of knowledge or credibility of the particular witness."). See also Michelson v. U.S., 335 U.S. 469, 477-78, 69 S.Ct. 213, 93 L.Ed. 168 (1948) ; Rogers v. U.S., 566 A.2d 69, 73 (D.C. 1989) (en banc). Because of the potential for prejudice, this type of cross-examination must be conducted in good faith;
there must be a factual basis for the testimony; and it is to be confined to matters pertinent to the specific character trait at issue in the witness's direct testimony. See U.S. v. Lewis, 482 F.2d 632, 639, 157 U.S. App. D.C. 43, 50 (1973) ; Marcus v. U.S., 476 A.2d 1134, 1139 (D.C. 1984) . It is improper for the prosecution to ask a defense witness who has testified about the defendant's character, to assume hypothetically that the defendant had committed the acts alleged and, if so, would that change their opinion of his/her character. McFerguson v. U.S., 870 A.2d 1199, 1203-04 (D.C. 2005) ("the guilt-assuming hypothetical question posed to the character witnesses in this case was ... objectionable because its minimal probative value was substantially outweighed by the risk of unfair prejudice to the defendant"). The trial court will remain responsible to exercise its broad discretion to screen proposed cross-examination for relevance, prejudice that outweighs probative value, potential to cause excessive delay, or possible jury confusion. Rogers, 566 A.2d at 71-72 , 79. In addition, the form of the cross-examination should conform to the type of character evidence presented. If reputation evidence is offered, the witness should be asked, "Have you heard ...?" If opinion evidence is presented, the question should be, "Do you know ...?" Id. at 75 n.8 . With respect to juvenile arrests, the Court of Appeals in Rogers held that a character witness may, in the court's discretion, be cross-examined about these arrests except where the facts demonstrate that the arrest was substantially nonpublic or confidential, and the witness could not reasonably be expected to have learned of its occurrence by means other than confidential records. Id. at 78 . Juvenile adjudications, however, cannot be used to impeach a character witness, McAdoo v. U.S., 515 A.2d 412, 418-19 (D.C. 1986) , although the acts underlying the juvenile adjudications may be used. Devore v. U.S., 530 A.2d 1173, 1176 (D.C. 1987) . Where arrests are to be used on cross-examination, the procedures to be followed are set forth in Rogers, 566 A.2d at 79 , and Morris v. U.S., 469 A.2d 432, 435-36 (D.C. 1983) . If the character trait asserted is other than truth and veracity, the general rule is that the relevant inquiry of the character witness must concern the accused's reputation up until the time of the offense. In such a case, questioning the character witness about the accused's subsequent arrests or convictions is deemed irrelevant or at least unduly prejudicial. Lewis, 157 U.S. App. D.C. at 52, 482 F.2d at 64 ; Marcus, 476 A.2d at 1139 . When the trait is truth and veracity and the accused testifies at trial, subsequent arrests and convictions may be used as impeachment. Id. Where character evidence is introduced only as to a particular trait, cross-examination of the character witness must be limited to testing the witness's knowledge of the defendant's character as to that trait. See, e.g., U.S. v. Darden, 342 A.2d 24, 26 (D.C. 1975) (conviction for false pretenses was relevant to character trait of peace and good order, but not to peacefulness and noncombativeness); Curry v. U.S., 498 A.2d 534, 544 (D.C. 1985) ; U.S. v. Fox, 473 F.2d 131, 135, 154 U.S. App. D.C. 1, 5 (1972) (character witness for truth and veracity may not be cross-examined about rape arrest); U.S. v. Wooden, 420 F.2d 251, 253, 137 U.S. App. D.C. 1, 3 (1969) (convictions for drunkenness are irrelevant to a defendant's reputation for honesty and integrity); Lewis, 157 U.S. App. D.C. at 50-15, 482 F.2d at 639-40 (a prior unauthorized use of a vehicle arrest could be appropriately used on cross-examination of a character witness for peace and good order, but not one for truth and veracity; a narcotics arrest that occurred subsequent to the arrest for the offense on trial could not be used to impeach a character witness for truth and veracity, since the probative value of such an arrest is outweighed by its prejudice). With respect to the issue of whether the proposed scope of cross-examination is relevant to the character trait raised by the defendant, the D.C. Court of Appeals has applied a more expansive definition of relevancy than was set forth by the D.C. Circuit in Fox and Lewis (which are not binding in Superior
Court). See Crews v. U.S., 514 A.2d 432, 435 n.6 (D.C. 1986) . The Court of Appeals in Crews upheld the use of prior arrests for attempted robbery and first degree burglary to cross-examine a defense witness who testified as to a defendant's reputation for truth and veracity. The court distinguished Fox, 154 U.S. App. D.C. at 6, 473 F.2d at 136 , which found that the relationship between rape and veracity was "tenuous at best," on the grounds that D.C. Code 14-305 (1981) permits the impeachment of a witness with any felony conviction within the last ten years, whereas in U.S. District Court, pursuant to Fed. R. Evid. 609 (a), such a felony conviction can only be used if the trial court determines that the probative value of admitting the evidence of the felony conviction outweighs its prejudicial effect to the accused (unless the defendant's conviction involved dishonesty or false statement--in which case no balancing test applies). Crews, 514 A.2d at 435 n.8 . The Crews court also rejected the suggestion that Lewis precluded the use of arrests to impeach evidence as to a defendant's reputation for truth and veracity, but rather concluded that Lewis should be read narrowly and the matter should be left to the trial court's discretion. Id. at 436 n.10 . See also Marshall v. U.S., 623 A.2d 551, 555 (D.C. 1992) (in a case charging, inter alia, murder and carrying a pistol without a license, a proposed character witness for peacefulness and noncombativeness can be cross-examined about the defendant's prior arrest for possession of PCP, because " 'drugs and weapons go together' "); Maura, 555 A.2d at 1016 (attempted robbery arrest probative as to reputation for truth and veracity); Rogers, 566 A.2d at 71 , 79 (upholding the use on cross-examination of juvenile arrests for petty larceny, burglary, robbery and grand larceny to impeach character testimony for truth and veracity). Cross reference: No. 2.213, Character of Defendant.
Page 91
47 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.215 Instruction 2.215 EXPERT TESTIMONY
Ordinarily, a witness may not testify as to his/her opinions or conclusions. There is an exception for expert witnesses, who are allowed to give opinions, and the reasons for them because they have become expert in some art, science, profession, or calling. In this case, [name of expert] [will testify] [has testified] as an expert concerning [specific subject]. You are not bound by an expert's opinion. If you find that the opinion is not based on sufficient education or experience, that the reasons supporting the opinion are not sound, or that the opinion is outweighed by other evidence, you may completely or partially disregard the opinion. You should consider this evidence with all the other evidence in the case and give it as much weight as you think it fairly deserves.____________________________________ Comment: The 2008 release slightly modified the language of this instruction to make it simpler and easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The Court of Appeals has set out the criteria for the admission of expert testimony in the District of Columbia in the following three-part test adopted in Dyas v. U.S., 376 A.2d 827, 832 (D.C. 1977) :
(1) the subject matter must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average [juror], (2) the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth, and (3) expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.
See also Nixon v. U.S., 728 A.2d 582 (D.C. 1999) (expert testimony on battered woman syndrome met the three-part Dyas test for admissibility of expert testimony and the Frye standard for novel scientific evidence). The admissibility of expert testimony in federal court is governed by Fed. R. Evid. 702, as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) , and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) . The District of Columbia Court of Appeals has not adopted the federal Daubert standard. See Bahura v. S.E.W. Investors, 754 A.2d 928, 943 n.15 (D.C. 2000) ("The plaintiffs ask that we apply the standard of admissibility set forth in [Daubert] ... The Frye test remains in effect in this jurisdiction, however, ... and a division of this court lacks the authority to supplant Frye with Daubert and Kumho Tire Co. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) ."); see also Frye v. U.S., 293 F. 1013, 54 App. D.C. 46 (1923) ; Dyas v. U.S., 376 A.2d 827, 832 (D.C. 1977) . As a result, the District of Columbia Court of Appeals continues to apply Frye's "general acceptance" test. As the court explained in U.S. v. Porter, 618 A.2d 629 (D.C. 1992) :
[U]nder Frye, the proponent of a new technology must demonstrate by a preponderance of the evidence that th[e] technology has been generally accepted in the relevant scientific community ... . Given the requirement in Frye of general acceptance, [t]he issue is consensus versus controversy over a particular technique, not its validity ... . If scientists significant either in number or expertise publicly oppose [a new technique] as unreliable, then that technique does not pass muster under Frye. Id. at 633-34 (citations and internal quotation marks omitted). See also U.S. v. Jenkins, 887 A.2d 1013, 1026 (D.C. 2005) (because no debate existed in the relevant scientific community over the methodology, mechanics, or mathematics of the statistical calculations, trial court erred in excluding expert testimony concerning the rarity statistic used to express the significance of a DNA match of a crime scene sample with a suspect identified through a database search (a so-called "cold hit")). The admission of expert testimony remains subject to the general rule that the probative value of the expert opinion must exceed its prejudicial effect. See Jones v. U.S., 548 A.2d 35, 38 (D.C. 1988) ("To be properly admissible, the testimony of the expert must be helpful to the jury, and must be more probative than prejudicial.") (citations omitted); Harris v. U.S., 489 A.2d 464, 470 (D.C. 1985) ("the trial court must determine whether the probative value of the expert testimony is outweighed by the danger of unfair prejudice to the accused"); see also Fed. R. Evid. 403 (in federal court, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ..."). In addition, the trial court has broad discretion in deciding whether to admit expert testimony, and its ruling will be upheld unless manifestly erroneous. See Griggs v. U.S., 611 A.2d 526, 527 (D.C. 1992) ("trial court has wide discretion in the admission or exclusion of expert testimony, and his [or her] decision with respect thereto should be sustained unless it is manifestly erroneous") (internal citations omitted). See also Hager v. U.S., 856 A.2d 1143 (D.C. 2004) , amended on rehearing, 861 A.2d 601 (D.C. 2004) (no abuse of discretion when trial court excluded proffered psychological expert testimony concerning the correlation between witness confidence and accuracy in eyewitness identifications when the identification was of a non-stranger and corroborating evidence was present); Smith v. U.S., 389 A.2d 1356, 1358-59 (D.C. 1978) (trial court properly held inadmissible both expert testimony on psychology of memory and perception with respect to eyewitness identification and testimony by an examiner concerning results of a polygraph examination of defendant); Dyas, 376 A.2d at 832 (expert testimony on unreliability of eyewitness identification under stress inadmissible because the subject area was not beyond the ken of an average layman and would not aid the jury in evaluating an
eyewitness identification); Brown v. U.S., 384 A.2d 647, 650 (D.C. 1978) (court refused to adopt trial court ruling that voice prints were sufficiently reliable to permit admission as expert testimony). Cases dealing with the use of experts in narcotics cases include the following: U.S. v. Askew, 88 F.3d 1065, 319 U.S. App. D.C. 2 (1996) (absent a corrective instruction, court troubled by testimony by "drug expert" that "anyone" who possessed the amount of drugs possessed by the defendant intended to sell them but did not reach issue); U.S. v. Boyd, 55 F.3d 667, 312 U.S. App. D.C. 102 (1995) (Fed. R. Evid. 704(b) is violated when an expert gives an opinion as to whether hypothetical facts prove the defendant intended to distribute narcotics when the hypothetical question "exactly mirror[s]" the facts of the defendant's case); U.S. v. Carswell, 922 F.2d 876, 287 U.S. App. D.C. 348 (1991) (no error in excluding witness as insufficiently qualified as expert on usable amount); U.S. v. Dunn, 846 F.2d 761, 269 U.S. App. D.C. 373 (1988) (detective may give an opinion as to the possibility of the existence of a retail drug operation); U.S. v. Johnson, 527 F.2d 1381, 1384, 174 U.S. App. D.C. 72, 75 (1976) (expert testimony on general habits of narcotics dealers and sellers admissible); Parker v. U.S., 601 A.2d 45 (D.C. 1991) (detective testified as expert in trafficking, packaging and use of illicit drugs, including heroin and cocaine, in the District of Columbia).
Page 94
48 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.216 Instruction 2.216 EVALUATION OF PRIOR INCONSISTENT STATEMENT OF A WITNESS
[When more than one of the following Parts are being given, the court should give the following paragraph first.] [The law treats prior inconsistent statements differently depending on the circumstances in which they were made. I will now explain how you should evaluate those statements.] PART A (for use when prior statements not made under oath are introduced):
You have heard evidence that [name of witness] made a statement on an earlier occasion and that this statement may be inconsistent with his/her testimony here at trial. It is for you to decide whether the witness made such a statement and whether in fact it was inconsistent with the witness's testimony here. If you find such an inconsistency, you may consider the earlier statement in judging the credibility of the witness, but you may not consider it as evidence that what was said in the earlier statement was true. PART B (for use when prior statements made under oath are introduced):
You [also] have heard evidence that [name of witness] made an earlier statement under oath, subject to the penalty of perjury at [a prior proceeding] [the grand jury] [a deposition] and that this statement[s] may be inconsistent with [his] [her] [their] testimony here at trial. If you find that the earlier statement is inconsistent with the witness's testimony here in court, you may consider this inconsistency in judging the credibility of the witness. [However, unlike statements not made under oath,] [Y]ou also may consider this earlier statement as evidence that what was said in the earlier statement was true. PART C (for use when prior identification statements are used to impeach a witness):
You [also] have heard evidence that [name of witness] [made an identification] [provided a description] on an earlier occasion, and that his/her testimony here at trial may be inconsistent with that [identification] [description]. It is for you to decide whether s/he [made such an identification] [provided such a description] and whether his/her testimony here was, in fact, inconsistent with it. If you find such an inconsistency, you may consider this inconsistency in judging the credibility of [name of witness]. You also may consider the earlier [identification] [description] as evidence that the prior [identification] [description] was true.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The 2010 release added Part C. A party has an unlimited right to impeach his own witness. See D.C. Code 14-102; Fed. R. Evid. 607. This instruction has three parts. Part A reflects the common-law doctrine admitting prior inconsistent statements only to impeach credibility. It should be given in Superior Court and in District Court when an unsworn prior statement is elicited. See U.S. v. Livingston, 661 F.2d 239, 213 U.S. App. D.C. 18 (1981) . Part B incorporates the provisions of Fed. R. Evid. 801(d)(1)(A) and D.C. Official Code 14-102 (2001) that permit a prior inconsistent statement made under oath at a trial, hearing, deposition, or other proceeding to be admitted both as impeachment and as substantive evidence. It should be given where the impeachment involves a prior statement given under oath. Part C is consistent with D.C. Code 14-102(b)(3) and should be given if a witness is impeached with evidence of a prior identification or description. Where a witness has been impeached with statements made under oath as well as statements not made under oath, both Parts A and B should be given along with the bracketed language in Part B. The statements should be identified with specificity so that the jury understands which statements are being admitted as substantive evidence as opposed to those which are admitted only for impeachment purposes. If requested, Part A must be given following impeachment of a witness with a prior inconsistent statement when the statement is admitted only to attack credibility. See Brooks v. U.S., 448 A.2d 253, 259 (D.C. 1982) ("Where there has been a request for a limiting instruction following the impeachment of a witness or the presentation of impeaching testimony and the use of the impeachment testimony as substantive evidence is potentially prejudicial, it is error for a trial court to refuse to give such an instruction"; however, it was harmless in this case); U.S. v. Bruner, 657 F.2d 1278, 1285-86, 212 U.S. App. D.C. 36 (1981) (failure to give this instruction immediately following impeachment of government witness by defense not error where impeachment helped, not harmed, the defendant; the prior statements were admissible as substantive evidence; and the trial court gave this instruction at the close of the witnesses' testimony and in the final charge to the jury); Jones v. U.S., 385 F.2d 296, 300, 128 U.S. App. D.C. 36, 40 (1967) ("salutary instructions" required whether witness is impeached by the opposing party or the party who called the witness). If there is no request for this instruction, a trial court has no per se obligation to give the instruction sua sponte. Johnson v. U.S., 387 A.2d 1084, 1087-89 (D.C. 1978) (en banc). A "sua sponte cautioning instruction is required [, however,] when a party, surprised by its own witness, impeaches the witness with a prior inconsistent statement." Id. at 1087 n. 7 , citing Lofty v. U.S., 277 A.2d 99 (D.C. 1971) ; accord Washington v. U.S., 397 A.2d 946, 949 (D.C. 1979) . Part A should not be given if the prior inconsistent statement is otherwise admissible for the truth of the
matter asserted. See, e.g., Pryor v. U.S., 503 A.2d 678, 682 (D.C. 1986) (prior statements were admissible under the business records exception to the hearsay rule); Turner v. U.S., 443 A.2d 542, 549 n.9 (D.C. 1982) (when a witness affirms the truth of a prior inconsistent statement, the statement may be admitted as substantive evidence); Warren v. U.S., 436 A.2d 821, 837 (D.C. 1981) (prior testimony "consisting solely of descriptions or identifications [is] admissible as substantive evidence under the hearsay exception for prior description testimony"); Powell v. U.S., 414 A.2d 530, 532-33 (D.C. 1980) (refusal to give this instruction not error where prior statement was admissible as an admission by a party); Watts v. U.S., 362 A.2d 706, 711-12 n.11 (D.C. 1976) (cautionary instruction not necessary where witness adopted her prior inconsistent statement during redirect examination). Likewise, where a prior inconsistent statement is used only to refresh a witness's recollection, but is not read to the jury nor introduced into evidence, this instruction is unnecessary. Jones v. U.S., 579 A.2d 250, 253 (D.C. 1990) ; Dobson v. U.S., 426 A.2d 361, 365-66 (D.C. 1981) . If requested, Part C should be given if a witness is impeached with evidence of a prior identification or description that is inconsistent with his or her testimony at trial. By statute, when a witness testifies and is subject to cross-examination, his or her "identification of a person made after perceiving the person" is not hearsay, and is admissible as "substantive evidence." D.C. Code 14-102(b)(3). "Both the statute and the common law that preceded it make clear that prior statements of identification are substantive evidence. The rationale behind the hearsay exception is that 'the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind.' " ( Larry) Brown v. U.S., 840 A.2d 82, 88-89 (D.C. 2004) . The exception for prior identifications applies likewise to prior descriptions. ( Henry) Brown v. U.S., 881 A.2d 586 (D.C. 2005) ; Morris v. U.S., 398 A.2d 333 (D.C. 1978) . This is true even though the earlier statement is not a sworn statement. The prior identification exception to the hearsay rule allows the admission of out-of-court statements through the testimony of either the witness or a third party who was present when the identification was made, provided that the witness who made the out-of-court identification is available for cross-examination. Id., citing Morris v. U.S., 398 A.2d 333, 336 (D.C. 1978) ; Clemons v. U.S., 408 F.2d 1230, 1242-43, 133 U.S. App. D.C. 27, 39-40 (1968) (en banc). The decision to give Part C is separate from the court's ruling on whether counsel can argue that the other person identified committed the offense. See Winfield v. U.S., 676 A.2d 1 (D.C. 1996) . Application to Criminal Defendants In the 2008 release, the Committee decided to delete former Instruction 1.14, Impeachment of Defendant--Statements--Note, because this general Instruction 2.216 on the impeachment of a witness with a prior inconsistent statement also applied to impeachment of a defendant. Former Instruction 1.14 was designed for those situations when a defendant's prior inconsistent statement was being introduced solely for purposes of impeachment and not as substantive evidence. Thus, in those cases formerly covered by Instruction 1.14, Part A of this instruction should be given. While many statements of a defendant are admissible as substantive evidence as the admission by a party opponent, see, e.g., Fed. R. Evid. 801(d)(2)(A) or (B), others may be admissible only for impeachment. In those circumstances, Part A is appropriate. See Michigan v. Harvey, 494 U.S. 344 (1990) (statement improperly obtained in violation of Sixth Amendment right to counsel, although not admissible as substantive evidence, may be used to impeach the defendant's false or inconsistent testimony); Oregon v. Hass, 420 U.S. 714 (1975) (defendant's request to talk to an attorney rendered his inculpatory statements inadmissible as substantive evidence but the government could introduce the statements for impeachment purposes during its rebuttal case);
Harris v. New York, 401 U.S. 222 (1971) (voluntary statements inadmissible in the prosecution's case-in-chief because obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) , may be used to impeach the credibility of the defendant if he takes the stand); Barrera v. U.S., 599 A.2d 1119 (D.C. 1991) (same); Martinez v. U.S., 566 A.2d 1049 (D.C. 1989) (statement obtained in violation of Sixth Amendment right to counsel could be used to impeach). See also Doyle v. Ohio, 426 U.S. 610 (1976) and U.S. v. Hale, 422 U.S. 171 (1975) (defendant's silence after receiving Miranda warnings cannot be used to impeach his trial testimony). Cf. Fletcher v. Weir, 455 U.S. 603 (1982) (no constitutional impropriety in prosecutor's use of defendant's post-arrest, pre-Miranda warnings silence for impeachment purposes when defendant testified at trial); Anderson v. Charles, 447 U.S. 404 (1980) (Doyle bars use against defendant of silence maintained after Miranda warnings but does not apply to cross-examination that merely inquires into prior inconsistent statements made after such warnings); Jenkins v. Anderson, 447 U.S. 231 (1980) (although the Fifth Amendment prevents a prosecutor from commenting on the silence of a defendant who does not testify at trial, the Constitution is not violated when a defendant, who testified in his own defense, is impeached with his pre-arrest silence; state courts, however, are not required to permit impeachment with pre-arrest silence). What Constitutes an Inconsistency For this instruction to be given, the inconsistency in the witness's testimony must be more than de minimis and must relate to a material matter in the case. See Outlaw v. U.S., 604 A.2d 873, 878 (D.C. 1992) (to be used for impeachment, prior statement need not completely contradict witness's testimony; however, it must be at variance with witness's testimony); Marksman v. U.S., 275 A.2d 241, 243 (D.C. 1971) (instruction not justified where counsel failed to develop a clear inconsistency); see also Mercer v. U.S., 864 A.2d 110, 114 (D.C. 2004) ("At the second trial, Washington testified that she had no memory of what happened the night of the murder. Before the grand jury, however, she testified that she saw Mercer shoot the victim. Thus, her grand jury testimony contradicted her trial testimony and was therefore admissible as a prior inconsistent statement under 14-102(b)."). An omission in a prior statement may constitute an inconsistency. See Jencks v. U.S., 353 U.S. 657, 667 (1957) ; Outlaw v. U.S., 604 A.2d 873, 879 (D.C. 1992) ; U.S. v. Stock, 948 F.2d 1299, 1301, 292 U.S. App. D.C. 191, 193 (1991) ; Beale v. U.S., 465 A.2d 796, 804-05 (D.C. 1983) , overruled on other grounds by Winfield v. U.S., 676 A.2d 1 (D.C. 1996) (an omission constitutes an inconsistency if the prior statement " 'fails to mention a material circumstance presently testified to, which it would have been natural to have mentioned in the prior statement' ") (quoting Sampson v. U.S., 407 A.2d 574, 578 (D.C. 1979)) ; Martin v. U.S., 452 A.2d 360, 363 (D.C. 1982) (before an omission may be introduced as an inconsistent statement, court must determine whether a "threshold inconsistency" exists); Hill v. U.S., 404 A.2d 525, 531-32 (D.C. 1979) (per curiam) (omitted facts must be "sufficiently material that the failure to have mentioned them amounts to inconsistency"; court must make this determination before the prior statement may be admitted to impeach the witness); cf. Yoon v. U.S., 594 A.2d 1056, 1060 (D.C. 1991) ("the 'substance' of a statement under Rule 16(a)(1)(A) may, under circumstances such as here, include what it does not say as well as what it says"), 610 A.2d 1388 (D.C. 1992) . See generally Hunter v. U.S., 606 A.2d 139, 148 nn. 11-13 (D.C. 1992) and cases cited therein. Proof by Extrinsic Evidence Prior inconsistent statements can be proved by extrinsic evidence only if they relate to facts that are not collateral. See, e.g., Gordon v. U.S., 344 U.S. 414 (1953) ; Rowland v. U.S., 840 A.2d 664, 681 (D.C. 2004) ("Whether Hoyle had made a suicidal gesture, as Washington testified, was not a collateral matter in this trial, for it bore on whether Hoyle actually did commit suicide in Rowland's apartment as he claimed. The prosecution therefore was entitled to present extrinsic evidence that Washington had made
prior inconsistent statements about that matter--including statements on the night of Hoyle's death that were inconsistent because they omitted any mention of recent suicidal behavior on her part."); U.S. v. Stock, 948 F.2d 1299, 1301-02, 292 U.S. App. D.C. 191, 193-94 (1991) ; McClain v. U.S., 460 A.2d 562, 568 (D.C. 1983) ; Moss v. U.S., 368 A.2d 1131, 1135 (D.C. 1977) . If a witness denies making a prior statement that relates to a collateral matter, the impeaching party may be bound by the witness's denial. See Coles v. U.S., 452 A.2d 1190, 1194 (D.C. 1982) . Before extrinsic evidence may be introduced to impeach a witness with a prior inconsistent statement, the impeaching party must first confront that witness with the prior statement and give her an opportunity to explain the inconsistency. See McConnaughey v. U.S., 804 A.2d 334, 340 (D.C. 2002) ("[T]he government followed the proper procedure by confronting Seals with his grand jury testimony, giving him an opportunity to explain or deny his prior inconsistent statements, and by affording appellant the opportunity to cross-examine Seals."); Parker v. U.S., 757 A.2d 1280, 1288 (D.C. 2000) (a party seeking admission of a witness's prior inconsistent statement must first confront that witness with the prior statement and give her an opportunity to explain it); Scott v. U.S., 619 A.2d 917, 921 (D.C. 1993) (same). Once counsel lays a proper foundation, the portion of a prior written statement that is inconsistent with a witness's testimony may be admitted into evidence even if the witness acknowledges the inconsistency on the stand. See Gordon v. U.S., 344 U.S. 414, 420-21 (1953) ; Reed v. U.S., 403 A.2d 725, 729 (D.C. 1979) (exclusion of prior written statements error, but not reversible error); U.S. v. Smith, 521 F.2d 957, 965, 172 U.S. App. D.C. 297, 305 (1975) (a written record "is the most reliable evidence of what the maker heard and any contradiction that might impeach ... [a witness's] credibility"); Williams v. U.S., 403 F.2d 176, 131 U.S. App. D.C. 153 (1968) (written prior inconsistent statement used to impeach witness on cross-examination should have been admitted into evidence). A prior inconsistent statement "is admissible for impeachment purposes even if the witness does not recall making the statement or remember its contents." Gray v. U.S., 589 A.2d 912, 915 (D.C. 1991) . Cross references: No. 1.200, Limiting Instructions--Note; No. 2.217, Evaluation of Prior Consistent Statement of a Witness; No. 2.305, Statements of the Defendant--Substantive Evidence.
Page 99
49 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.217 Instruction 2.217 EVALUATION OF PRIOR CONSISTENT STATEMENT OF A WITNESS
You have heard evidence that [name of witness] [name of defendant] made a statement on an earlier occasion and that this statement may be consistent with his/her testimony here at trial. This earlier statement was brought to your attention both to help you in evaluating the credibility of the witness and as evidence in this case. In other words, if you find that the earlier statement is consistent with the witness's present testimony in court, you may consider this consistency both in judging the credibility of the witness here at trial and as proof that what was said in the earlier statement was true. It is for you to decide whether a witness made a statement on an earlier occasion and whether it was in fact consistent with the witness's in-court testimony here.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction applies to all witnesses, including the defendant. It is suggested that this instruction need only be given when prior inconsistent statements have been admitted for the limited purpose of impeaching credibility. Unlike prior inconsistent statements, under Fed. R. Evid. 801(d)(1)(B), prior consistent statements are admissible as substantive evidence, even if they were not made under oath, if they are offered to rebut a charge of recent fabrication or improper influence or motive. To be admissible, such statements must have been made at a time, or under circumstances, when the witness had no motive to fabricate. See Tome v. U.S., 513 U.S. 150 (1995) (prior consistent statement must predate the witness's reason to fabricate); Prophet v. U.S., 602 A.2d 1087, 1093 (D.C. 1992) . In 1995, D.C. Code 14-102, see D.C. Law 10-256, was amended and adopted the same language as found in Fed. Evid. R. 801(d)(1)(B). Thus,
a prior consistent statement that complies with the requirements of 14-102 may be considered as substantive evidence in Superior Court. Prior statements consistent with a witness's trial testimony are generally inadmissible since "repetition does not imply veracity." Prophet, 602 A.2d at 1093 ; see also Carr v. U.S., 585 A.2d 158, 162 n.3 (D.C. 1991) ; Coltrane v. U.S., 418 F.2d 1131, 1140, 135 U.S. App. D.C. 295, 304 (1969) . When a witness has been impeached with portions of a prior statement, however, other portions of that statement may be introduced in order to rehabilitate the witness. See Sweat v. U.S., 540 A.2d 460, 463-64 (D.C. 1988) ; U.S. v. Tarantino, 846 F.2d 1384, 1411, 269 U.S. App. D.C. 398, 425 (1988) ; Fed. R. Evid. 106. See generally Daye v. U.S., 733 A.2d 321, 327 (D.C. 1999) (prior consistent statements not admissible to rebut claim of fabrication when same motive to deflect blame existed at time prior consistent statements were made); Jackson v. U.S., 653 A.2d 843 (D.C. 1995) ; U.S. v. Montague, 958 F.2d 1094, 1096, 294 U.S. App. D.C. 236, 238 (1992) (where cross-examination reveals witness's interest in leniency in another criminal matter, such cross-examination "constitutes at least an implied charge of improper motive"); Fed. R. Evid. 801(d)(1)(B). When prior consistent statements are offered to rehabilitate a witness, they must be limited to the scope of the impeachment. See Mitchell v. U.S., 609 A.2d 1099, 1110 n. 20 (D.C. 1992) at 1110 n.20 ; Prophet, 602 A.2d at,1093 ("prior consistent statement must be directed only at the particular impeachment that occurred and must support the particular testimony that has been impeached"); Jones v. U.S., 483 A.2d 1149, 1157 (D.C. 1984) (error to ask unimpeached witness whether he had notes of the conversation which formed the basis of his testimony); Sherrod v. U.S., 478 A.2d 644, 661 & n.23 (D.C. 1984) (where witness was only impeached regarding the date of an earlier statement, admission of the entire statement to rehabilitate the witness was error); Musgrove v. U.S., 441 A.2d 980, 985 (D.C. 1982) ("prior consistent statements ... may not be used to support a witness' unimpeached testimony"); Sherer, 470 A.2d at 740-41 (entire prior consistent statement admitted to rebut charge of fabrication where the cross-examination concerned details in the witness's testimony but defense counsel argued that witness's testimony was a fabrication); Rease v. U.S., 403 A.2d 322, 328 & n.7 (D.C. 1979) (rehabilitation must be "directed only at the particular impeachment that occurred"); see generally Battle v. U.S., 630 A.2d 211 (D.C. 1993) (abolition of the corroboration requirement in sexual assault prosecutions does not preclude the government from introducing evidence to corroborate the complainant's testimony under the report of rape rule either to explain an apparent inconsistency arising from the absence of evidence of a report or to rebut implied impeachment suggesting recent fabrication; such evidence is admissible not for the truth but merely for the fact that the statement was made). This instruction need not be given if the prior consistent statement is otherwise admissible. See Instruction No. 2.216 and cases cited in comment. Cross reference: No. 2.216, Evaluation of Prior Inconsistent Statement of a Witness.
Page 101
50 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.218 Instruction 2.218 IMPEACHMENT BY PROOF OF CONVICTION OF A CRIME--WITNESS
You have heard evidence that [name of witness] has been convicted of a crime. You may consider this conviction only in evaluating the credibility of that witness's testimony in this case.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. Although it may be preferable to give this instruction immediately after a witness is impeached with a prior conviction, an end-of-trial instruction may be adequate. Watkins v. U.S., 379 A.2d 703 (D.C. 1977) . It is left to the sound discretion of the trial judge whether to give an immediate cautionary instruction when requested by defense counsel. Dixon v. U.S., 287 A.2d 89, 99-100 (D.C. 1972) . See Coates v. U.S., 558 A.2d 1148 (D.C. 1989) (trial court's error in refusing to give instruction immediately following disclosure on direct examination of defendant's prior criminal record was cured by court's giving such instruction during impeachment on cross-examination and again in final charge to jury). Superior Court The law governing the use of prior convictions for impeachment purposes in Superior Court differs significantly from the law in the District Court. Superior Court practice is governed by D.C. Official Code 14-305 (2001). (On the constitutionality of D.C. Code 14-305 (1981), see U.S. v. Belt, 514 F.2d 837, 169 U.S. App. D.C. 1 (1975) and Hill v. U.S., 434 A.2d 422 (D.C. 1981) ). Under 14-305, a witness may be impeached by a prior conviction if the crime is punishable by death or imprisonment of more than one year or involves dishonesty or false statement. See generally Dorman v. U.S., 491 A.2d 455 (D.C. 1984) (en banc) and Sherer v. U.S., 470 A.2d 732 (D.C. 1983) . For impeachment purposes,
the conviction may be established either during the cross-examination of the witness or by extrinsic evidence. Sherer, 470 A.2d at 738 . If a witness denies the conviction on cross-examination, the offering party must be prepared to prove the conviction. Reed v. U.S., 485 A.2d 613, 618 (D.C. 1984) . Furthermore, the government has an obligation to produce the impeachable convictions of its witnesses upon defendant's request at trial. Young v. U.S., 478 A.2d 287 (D.C. 1984) ; Lewis v. U.S., 408 A.2d 303 (D.C. 1979) . The D.C. Court of Appeals has held that crimes of dishonesty and false statement include all crimes, except those that involve passion and short temper--such as simple assault. Bates v. U.S., 403 A.2d 1159, 1161 (D.C. 1979) ; U.S. v. Akers, 374 A.2d 874 (D.C. 1977) , and threats, James v. U.S., 514 A.2d 793 (D.C.1986) . Except for vehicular homicide and fleeing a police officer, traffic offenses also are not impeachable convictions. Thus, the Court of Appeals has permitted impeachment with almost any misdemeanor (with the exception of simple assault, threats and traffic offenses). A lawyer may impeach a witness with a conviction for offenses such as malicious destruction of property, see Ross v. U.S., 520 A.2d 1064 (D.C. 1987) ; solicitation for prostitution, see Brown v. U.S., 518 A.2d 446 (D.C. 1986) ; attempted petit larceny, see Baptist v. U.S., 466 A.2d 452 (D.C. 1983) ; attempted housebreaking, see Hampton v. U.S., 340 A.2d 813 (D.C. 1975) ; carrying a pistol without a license, see Williams v. U.S., 337 A.2d 772 (D.C. 1975) ; possession of narcotics, see Durant v. U.S., 292 A.2d 157 (D.C. 1972) ; and unlawful entry, see Bates v. U.S., 403 A.2d 1159 (D.C. 1979) . Whether a contempt conviction is impeachable will depend on the facts of the case. Thompson v. U.S., 571 A.2d 192 (D.C. 1990) . A lawyer cannot use mere evidence of arrest or indictment to impeach a witness. See D.C. Official Code 14-305 (2001) and Fed. R. Evid. 609. See also Michelson v. U.S., 335 U.S. 469, 482 (1948) (dictum); Twitty v. U.S., 541 A.2d 612 (D.C. 1988) ; Jackson v. U.S., 377 A.2d 1151, 1155 (D.C. 1977) . A witness may be cross-examined about prior bad acts that have not resulted in a criminal conviction only where, "(1) the examiner has a factual predicate for such question, and (2) the bad act 'bears directly upon the veracity of the witness in respect to the issues involved in the trial.' " Bennett v. U.S., 763 A.2d 1117, 1122 (D.C. 2000) , citing Grayton v. U.S., 745 A.2d 274, 280 (D.C.2000) (quoting Sherer v. U.S., 470 A.2d 732, 738 (D.C. 1983) (further citations omitted); Fed. R. Evid. 608(b). See also Instruction 2.214, Cross-Examination of Character Witness. The statute also imposes a ten-year time limit. Specifically, 14-305(b)(2)(B) states:
(B) In addition, no evidence of any conviction of a witness is admissible under this section if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness from confinement imposed for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal offense. A witness may be impeached by a conviction outside the 10-year time period in D.C. Official Code 14-305 (2001), if there is any conviction that falls within the time period. Glass v. U.S., 395 A.2d 796, 807-08 (D.C. 1978) . A pardon, annulment, certificate of rehabilitation (or its equivalent), or a finding of innocence in any form precludes the use of the conviction for impeachment, provided the witness has not been convicted of a subsequent criminal offense. D.C. Official Code 14-305(b)(2)(A) (2001). However, if a reduction of minimum sentence renders a prisoner eligible for parole, it is not equivalent to a certificate of rehabilitation and the underlying conviction may be used to impeach. Williams v. U.S., 421 A.2d 19 (D.C. 1980) .
Because a "conviction" stemming from a summary court-martial proceeding lacks the trustworthiness of a conviction resulting from more formal and adversarial criminal proceedings, it cannot be used for impeachment purpose s under D.C. Code 14-305. Zellers v. U.S., 682 A.2d 1118 (D.C. 1996) . A lawyer generally cannot use a juvenile adjudication to impeach a witness. See Sherer v. U.S., 470 A.2d 732, 739 n.7 (D.C. 1983) ; Smith v. U.S., 392 A.2d 990 (D.C. 1978) . Juvenile adjudications, however, may be admissible to show bias. See Tabron v. U.S., 410 A.2d 209 (D.C. 1979) . In addition, if a juvenile is prosecuted as an adult in another jurisdiction, any resulting conviction may subsequently be admissible for impeachment in District Court even though the individual could not have been prosecuted as an adult for that offense in the District of Columbia. See generally U.S. v. Edmonds, 524 F.2d 62, 173 U.S. App. D.C. 241 (1975) . A judgment of guilt without sentencing does not constitute an impeachable conviction. Franklin v. U.S., 555 A.2d 1010 (D.C. 1989) (reversible error when a trial judge allowed impeachment with a jury verdict of guilty with no corresponding sentence); Martin v. U.S., 567 A.2d 896 (D.C. 1989) (a mere jury verdict without a sentence does not constitute a conviction). U.S. District Court In federal court, impeachment of witnesses by prior convictions is governed by Fed. R. Evid. 609. Subsection (a) of that rule defines generally which convictions are admissible. It provides:
(a) General rule.--For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. Fed. R. 609(a)(2) was amended in 2006 to add the language: "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." Even before its recent amendment, courts have construed Rule 609(a)(2) narrowly to include only offenses in which dishonesty or false statement are elements of the offense. See U.S. v. Lewis, 626 F.2d 940, 946, 200 U.S. App. D.C. 76 (1980) . Examples of impeachable offenses involving dishonesty or false statement are perjury, false pretenses, or fraud. See U.S. v. Millings, 535 F.2d 121, 175 U.S. App. D.C. 293 (1976) . Cf. U.S. v. Morgan, 476 F.2d 928, 155 U.S. App. D.C. 172 (1973) (reversible error where trial court ruled that making a false police report was not an impeachable offense). The U.S. Court of Appeals for the D.C. Circuit has held that the following are not crimes involving dishonesty: attempted petit larceny, see U.S. v. Fearwell, 595 F.2d 771, 193 U.S. App. D.C. 386 (1978) ; taking property without right, see U.S. v. Logan, 998 F.2d 1025, 302 U.S. App. D.C. 390 (1993) ; attempted robbery, see U.S. v. Smith, 551 F.2d 348, 179 U.S. App. D.C. 162 (1976) ; carrying a pistol
without a license, see U.S. v. Slade, 627 F.2d 293, 200 U.S. App. D.C. 240 (1980) ; distribution of drugs, see U.S. v. Lewis, 626 F.2d 940, 200 U.S. App. D.C. 76 (1980) ; U.S. v. Logan, 998 F.2d 1025, 302 U.S. App. D.C. 390 (1993) ; and the Maryland offense of "shoplifting", see U.S. v. Dorsey, 591 F.2d 922, 192 U.S. App. D.C. 313 (1978) . But see U.S. v. Crawford, 613 F.2d 1045, 198 U.S. App. D.C. 312 (1979) (shoplifting may or may not be probative of a lack of veracity depending on the nature and circumstances of the crime); Smith, 179 U.S. App. at 178 n.28, 551 F.2d at 364 n.28 (petty larceny may or may not be probative of lack of honesty depending upon the nature and circumstances of the offense). Under Fed. R. Evid. 609(a)(1), the trial court applies the balancing test found in Fed. R. Evid. 403 when determining the admissibility of prior felony convictions used to impeach a witness other than a defendant in a criminal case. A different balancing test is used when the defendant is being impeached with a prior conviction. See Comment to Instruction 2.220, Impeachment by Proof of Conviction of a Crime--Defendant. Under Rule 403, otherwise "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." For factors that the court might consider in determining whether the probative value of the felony conviction outweighs any prejudice, see U.S v. Lipscomb, 702 F.2d 1049, 226 U.S. App. D.C. 312 (1983) ; U.S. v. Jackson, 627 F.2d 1198, 1209, 201 U.S. App. D.C. 212 (1980) . If, however, counsel seeks to introduce a witness's prior convictions for offenses involving dishonesty or false statement under Fed. R. Evid. 609(a)(2), the court generally does not conduct any balancing test. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 526 (1989) ("Rule 609(a) states that impeaching convictions evidence 'shall be admitted,' With regard to subpart (2), which govern impeachment by crimen falsi convictions, it is widely agreed that this imperative, coupled with the absence of any balancing language, bars exercise of judicial discretion pursuant to Rule 403."); see also U.S. v. Lipscomb, 702 F.2d 1049, 1057, 226 U.S. App. D.C. 312, 320 (1983) . Pleas of guilty while maintaining innocence ("Alford" pleas; see North Carolina v. Alford, 400 U.S. 25 (1970)) and pleas of nolo contendere do not preclude the subsequent use of a conviction for impeachment purposes. U.S. v. Lipscomb, 702 F.2d 1049, 1070, 226 U.S. App. D.C. 312 (1983) (en banc). The federal rule also imposes a time limit on the age of impeachable convictions. Specifically, Fed. R. Evid. 609(b) states:
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. The fact that a witness's conviction remains appealable does not preclude the use of the conviction for impeachment purposes. Fed. R. Evid. 609(e); U.S. v. Henson, 486 F.2d 1292, 159 U.S. App. D.C. 32 (1973) (en banc). Cross references: No. 2.219, Impeachment by Proof of Pending Case, Probation or Parole--Witness; No. 2.220, Impeachment by Proof of Conviction of a Crime--Defendant.
Page 105
51 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.219 Instruction 2.219 IMPEACHMENT BY PROOF OF PENDING CASE, PROBATION OR PAROLE--WITNESS
You have heard evidence that [name of witness] is [on probation] [on parole] [on supervised release] [charged with a crime] [awaiting sentence] [under investigation]. You may consider this evidence when deciding whether the witness has a bias in favor of one of the parties that may affect his/her willingness to tell the truth.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee also added the bracketed language "under investigation" for use in situations when the witness is aware of an ongoing investigation that may influence the witness's testimony. No changes were made in the Fifth Edition. This form of impeachment should be permitted and this instruction given only when the circumstances indicate that bias may exist. A defendant is permitted to impeach a government witness with a pending case or his status as a probationer or parolee at the time of trial on the ground that, "because the witness has a present personal liberty interest with the court system ... the witness may have a motive to carry favor by testifying for the government." Coligan v U.S., 434 A.2d 483, 485 (D.C. 1981) ; see Washington v. U.S., 461 A.2d 1037, 1038 (D.C. 1983) (Sixth Amendment protects defendant's right to demonstrate a witness's motivation or bias in testifying for the government). See also Davis v. Alaska, 415 U.S. 308 (1974) (impeachment of government witness with juvenile probationary status proper to show bias); Alford v. U.S., 282 U.S. 687 (1931) (impeachment of government witness with fact he was in federal custody proper to show bias). Without additional circumstances, the probative force of the inference that a witness awaiting criminal trial on charges unrelated to the current trial is motivated by anti-government hostility is too attenuated to permit impeachment by the witness's arrest or pending charges. Williams v. U.S., 642 A.2d 1317, 1322
(D.C. 1994) ; see also Staton v. U.S., 466 A.2d 1245, 1249 (D.C. 1983) (proper bias cross-examination to ask police officer, testifying for the defense, about internal investigation into her handling of the case); cf. Bennett v. U.S., 597 A.2d 24, 26 n.6 (D.C. 1991) (insufficient evidence of government's bias theory because government failed to elicit that defense witness recognized the arresting officers in instant case as the same officers who had arrested her three weeks earlier). The D.C. Circuit has permitted the prosecution to impeach defense witnesses for bias by showing charges against them, subject to the requirement that the probative value is not substantially outweighed by unfair prejudice. U.S. v. Spencer, 25 F.3d 1105, 1109, 306 U.S. App. D.C. 399 (1994) (in general pending charges may be as likely to move defense witness to color testimony for government as for defense; in this case, other evidence showed antipathy toward government); U.S. v. Robinson, 530 F.2d 1076, 174 U.S. App. D.C. 224 (1976) (testimony that defense witness was involved in joint venture with defendant in drug business and that charges were brought against her and later dropped was allowed on question of bias); U.S. v. Maynard, 476 F.2d 1170, 1174, 155 U.S. App. D.C. 223 (1973) (prejudice outweighed probative value of bias impeachment based on indictment of defense witness for obstruction of justice for attempting to bribe sole eyewitness not to identify co-defendant). Cross reference: No. 2.218, Impeachment by Proof of Conviction of a Crime--Witness.
Page 107
52 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions B. Evaluation of Testimony 1-II Criminal Jury Instructions for DC Instruction 2.220 Instruction 2.220 IMPEACHMENT BY PROOF OF CONVICTION OF A CRIME--DEFENDANT
You have heard evidence that [name of defendant] has previously been convicted of a crime. This prior conviction is admitted into evidence solely for your consideration in evaluating his/her credibility as a witness. The evidence that s/he was convicted of a crime in the past is not evidence that [name of defendant] is guilty of the offense[s] charged in this case and you must not draw such an inference.____________________________________ Comment: No changes were made to this instruction in the Fifth Edition. The general rules governing the impeachment of a witness with a prior criminal conviction are set out in the Comments to Instruction No. 2.218. This comment focuses upon the special rules which apply to the impeachment of a defendant with such prior criminal convictions. In the Superior Court, D.C. Official Code 14-305 (2001) governs the admissibility of prior convictions for purposes of impeachment. See Jones v. U.S., 579 A.2d 250 (D.C. 1990) ; Hill v. U.S., 434 A.2d 422 (D.C. 1981) . In the U.S. District Court, Fed. R. Evid. 609 governs such impeachment. See Ohler v. U.S., 529 U.S. 753, 756-57 (2000) . Where a federal prosecution involves both federal and District of Columbia Code offenses, the Federal Rules of Evidence control impeachment by prior convictions. U.S. v. Belt, 514 F.2d 837, 169 U.S. App. D.C. 1 (1975) . See also U.S. v. Hairston, 495 F.2d 1046, 161 U.S. App. D.C. 466 (1974) . Where an indictment originally returned in District Court contains both federal and District of Columbia Code offenses, but the federal offenses are dismissed prior to trial, the District Court should apply D.C. Official Code 14-305 (2001) when ruling on impeachment by prior convictions. U.S. v. Jones, 517 F.2d 176, 170 U.S. App. D.C. 362 (1975) . Superior Court
As noted above, the admissibility of a prior conviction in Superior Court to impeach is governed by D.C. Code 14-305. A prosecutor may not cross-examine a defendant about a prior conviction unless the prosecutor has a certificate under seal as required by D.C. Official Code 14-305 (2001) or the trial judge has ruled in advance of cross-examination that the government has presented sufficiently reliable proof of a defendant's prior conviction to permit cross-examination. Reed v. U.S., 485 A.2d 613, 619 (D.C. 1984) . The government's explicit or implicit assurance before trial that it will not impeach a defendant with his prior convictions, may be reasonably relied upon by the defense in preparing and conducting the defense including jury selection; if so the government may not breach this promise. Wilson v. U.S., 606 A.2d 1017 (D.C. 1992) . "[O]nce the defendant testifies, his credibility may be impeached by reference to his prior convictions." Fields v. U.S., 396 A.2d 522, 527 (D.C. 1978) . Convictions post-dating the crime can be used for impeachment purposes. Hammond v. U.S., 880 A.2d 1066, 1094 (D.C. 2005) ("Since the prior convictions can be used only to impeach the credibility of the defendant or other witnesses, the critical time of the impeachment offense is necessarily prior to the time of the witness' testimony in court, rather than the date of the offense for which defendant is on trial"); see also Franklin v. U.S., 555 A.2d 1010, 1012 (D.C. 1989) (interpreting conviction under D.C. Code 14-305 to mean "a judgment of conviction based on a sentence") (citation omitted). Prior convictions are not admissible to prove that the defendant is guilty of the crime with which he is charged. Ford v. U.S., 487 A.2d 580 (D.C. 1984) . The prosecutor must not impeach the defendant in a manner which suggests that because of prior criminal acts, the defendant is guilty of the crime with which he is charged. Ford, 487 A.2d at 591 ; D.C. Official Code 14-305(b)(1) (2001). It is impermissible for the prosecution to "pair" questions regarding the defendant's previous conviction(s) with questions concerning the defendant's general denial of the offenses or key elements with which he is charged during cross examination of the defendant. U.S. v. Dorman, 491 A.2d 455 (D.C. 1984) (en banc). Accord Higgenbottom v. U.S., 923 A.2d 891, 902 (D.C. 2007) (no error for prosecutor to clarify which conviction the defendant meant when phrased in appellant's own words from just moments earlier). Cf. Augburn v. U.S., 514 A.2d 452 (D.C. 1986) . The test for determining whether a prior conviction is used improperly is whether reasonable jurors would naturally and necessarily infer from the way the prosecutor referred to the defendant's prior conviction that because the defendant was guilty of the prior crime he was also guilty of the crime charged. Dorman, 491 A.2d at 460 . In close cases, a curative instruction may render the error harmless. Id. at 462 . The danger of the jury misusing evidence of a prior conviction is greatest when the crime charged and the crime used to impeach the defendant are similar. Bailey v. U.S., 447 A.2d 779 (D.C. 1982) . See also Baptist v. U.S., 466 A.2d 452 (D.C. 1983) (permissible to impeach defendant with prior conviction for larceny in prosecution for attempted burglary in the second degree and attempted petit larceny). Defense counsel may establish the prior conviction of the defendant on direct examination to lessen the impact of impeachment. See Beale v. U.S., 465 A.2d 796 (D.C. 1983) ; Kitt v. U.S., 379 A.2d 973 (D.C. 1977) . As a general rule, a defendant who does not testify in Superior Court may not appeal an in limine ruling that prior convictions are admissible to impeach him or her. Cf. Butler v. U.S. 688 A.2d 381, 388 (D.C. 1996) . However, a defendant who does not testify may appeal a ruling by the Superior Court admitting
impeachment evidence where the determinative question is purely a legal one. Bailey v. U.S., 699 A.2d 392, 399-401 (D.C. 1997) (adopting Luce "subject to the proviso set forth in Justice Brennan's separate opinion"). Accord Wilson v. U.S., 691 A.2d 1157, 1158-59 n.3 (D.C. 1997) ("[W]here a challenged pretrial ruling turns solely upon a legal consideration on which the trial court has made a final ruling, and the testimony of the defendant is not essential to preserve the purely legal issue for appellate review, it is ripe for consideration by this court."); see also Haley v. U.S., 799 A.2d 1201 (D.C. 2002) (defense counsel adequately preserved issue of admissibility of defendant's prior conviction for appellate review even though the defendant did not testify). Prior convictions obtained in violation of the Sixth Amendment right to counsel may not be used to impeach a defendant's credibility in a subsequent criminal proceeding unless the defendant validly waived his right to counsel. Oliver v. U.S., 384 A.2d 642 (D.C. 1978) . See generally Zellers v. U.S., 682 A.2d 1118, 1125 (D.C. 1996) ("[B]ecause a 'conviction' stemming from a summary court-martial proceeding lacks the trustworthiness of a conviction resulting from more formal and adversarial criminal proceedings, it cannot be used for impeachment purposes under D.C. Code 14-305."). U.S. District Court The admissibility of prior convictions to impeach in federal court is governed by Fed. R. Evid. 609. Under subsection (a)(1) of that rule, before a prior felony conviction of a defendant for offenses other than those involving dishonesty or false statements is admissible for impeachment purposes, the court must determine "that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." As the Advisory Committee Notes reflect for the 1990 amendments:
[T]he rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice--i.e., the danger that convictions that would be excluded under Fed.R.Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes. Although the rule does not forbid all use of convictions to impeach a defendant, it requires that the government show that the probative value of convictions as impeachment evidence outweighs their prejudicial effect. Under Fed. R. Evid. 609(a)(2), however, no balancing test is applied to crimes involving dishonesty or false statements, regardless of whether the convictions are the defendant's or another witness's. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 526 (1989) ("Rule 609(a) states that impeaching convictions evidence 'shall be admitted.' With regard to subpart (2), which governs impeachment by crimen falsi convictions, it is widely agreed that this imperative, coupled with the absence of any balancing language, bars exercise of judicial discretion pursuant to Rule 403."); see also U.S. v. Lipscomb, 702 F.2d 1049, 1057, 226 U.S. App. D.C. 312, 320 (1983) . In federal court, a defendant must testify at trial "to raise and preserve for review the claim of improper impeachment with a prior conviction." Luce v. U.S., 469 U.S. 38, 43 (1984) . In addition, "[a] defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim tha t the admission of such evidence was error." Ohler v. U.S., 529 U.S. 753, 760 (2000) . Where the government introduces evidence of prior convictions in a manner pointing to the defendant's guilt rather than to his credibility as a witness, a limiting instruction may be insufficient to eliminate prejudice. See U.S. v. Slade, 627 F.2d 293, 200 U.S. App. D.C. 240 (1980) ; U.S. v. Carter, 482 F.2d 738,
157 U.S. App. D.C. 149 (1973) . Where a prior conviction is admitted solely to impeach a defendant's credibility, this instruction must be given at a defendant's request as part of the final instructions. Weaver v. U.S., 408 F.2d 1269, 133 U.S. App. D.C. 66 (1969) . See also No. 1.200, Limiting Instructions--Note. Cross references: No. 1.200, Limiting Instructions--Note; No. 2.218, Impeachment by Proof of Conviction of a Crime--Witness; No. 2.321, Other Crimes Evidence.
Page 111
53 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.300 Instruction 2.300 MISSING WITNESS OR OTHER EVIDENCE
If [evidence relevant to an issue] [a witness who could have given relevant testimony on an issue] in this case was only within the power of one party to [produce] [call], was not [produced] [called] by that party, and [its] [his/her] absence has not been sufficiently explained, then you may, if you deem it appropriate, infer that the [evidence] [witness's testimony] would have been unfavorable to the party who failed to [produce it] [call him/her]. However, you should not draw such an inference from [evidence that] [a witness who] in your judgment was equally available to both parties or [which] [whose testimony] would have [duplicated other evidence] [repeated other testimony] or that you think was unimportant.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction embodies the principle that in a criminal case, "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Graves v. U.S., 150 U.S. 118, 121 (1893) . The effect of this doctrine, as pointed out in Dent v. U.S., 404 A.2d 165, 170-71 (D.C. 1979) , is to create evidence from non-evidence by allowing the jury to draw an adverse inference from the absence of evidence. See Burgess v. U.S., 440 F.2d 226, 234, 142 U.S. App. D.C. 198, 206 (1970) (missing witness instruction is not evidence and thus, there is an overriding danger that the instruction, by allowing an adverse inference, may add a fictitious weight to one side or another of the case). See generally Allen v. U.S., 603 A.2d 1219 (D.C. 1992) (en banc) (missing witness and missing evidence rules focus on the impact on the jury of a party's nonproduction of evidence at trial; not on his failure to preserve evidence at the scene).
The failure of a party to produce evidence that is relevant and peculiarly available to that party may lead to an inference that such evidence would have been unfavorable to the party. See (Thomas) Harris v. U.S., 602 A.2d 154, 160 (D.C. 1992) (en banc); Jones v. U.S., 343 A.2d 346, 352 (D.C. 1975) ; 2 Wigmore Evidence Section 285 (3d ed. 1940). Two conditions must be met before this instruction may be given. If the trial court does not find both of these conditions present, comment by counsel regarding a missing witness or other missing evidence is inappropriate and not allowed. See Lawson v. U.S., 514 A.2d 787, 789-90 (D.C. 1986) ; Dent, 404 A.2d at 171 ; Shelton v. U.S., 388 A.2d 859, 863 (D.C. 1978) . First, the evidence or witness must have been able to elucidate a matter relevant and material to a disputed issue in the case. See, e.g., German v. U.S., 525 A.2d 596, 611 (D.C. 1987) ; Hinnant v. U.S., 520 A.2d 292, 294 (D.C. 1987) ; U.S. v. Young, 463 F.2d 934, 939-40, 150 U.S. App. D.C. 98 (1972) ; Wynn v. U.S., 397 F.2d 621, 625-26, 130 U.S. App. D.C. 60, 64-65 (1967) . A missing witness need not be an eyewitness to satisfy this condition; the witness only has to be able to give material testimony on an issue in the case. Finnegan v. U.S., 399 A.2d 570, 572 (D.C. 1979) . However, in order for a witness or evidence to "elucidate the transaction," the evidence must be noncumulative, Cooper v. U.S., 415 A.2d 528, 534 (D.C. 1980) ; The evidence must be an "important part" of the party's case against whom the inference is drawn Dent, 404 A.2d at 170 . Evidence must be superior to other testimony/evidence already given on the matter, Thomas v. U.S., 447 A.2d 52, 57 (D.C. 1982) . A witness whose testimony is unimportant, cumulative or inferior to what has already been admitted cannot "elucidate the matter in issue" and therefore may not be called by a party. Anderson v. U.S., 352 A.2d 392, 394 (D.C. 1976) ; Brown v. U.S., 414 F.2d 1165, 1167, 134 U.S. App. D.C. 269, 271 (1969) . A court may commit reversible error if it gives a missing witness instruction about a witness whose testimony would not have elucidated the transaction. Haynes v. U.S., 318 A.2d 901, 903 (D.C. 1974) . Second, the missing evidence or witness must have been peculiarly available to the party who failed to produce the evidence or witness. Id. at 902 . Courts have equated availability with the power of a party to produce a witness or evidence. See, e.g., Nixon v. U.S., 730 A.2d 145, 154 (D.C. 1999) (no abuse of discretion to refuse missing witness instruction, particularly because no showing had been made that witness who did not testify was peculiarly available to other party); Strong v. U.S., 665 A.2d 194, 197 (D.C. 1995) (The court was not required to give a missing witness instruction, because the missing witness was not peculiarly available to the government); German, 525 A.2d at 611 ; Hinnant, 520 A.2d at 294 . There are two mandatory elements of peculiar availability. The availability of a witness to a party must be judged "practically as well as physically." See (Thomas) Harris, 602 A.2d at 161 (D.C. 1992) (unless party seeking to use missing witness argument can meet both physical availability and practical availability requirements, trial court must preclude counsel from making either complete or incomplete missing witness argument, and trial court itself must not give missing witness instruction); Stewart v. U.S., 418 F.2d 1110, 1115, 135 U.S. App. D.C. 274, 279 (1969) . If a witness is not physically available and cannot be brought into court, no factual conclusion can be drawn from the failure to produce him in court. Generally, a witness is not physically available unless he can be located, see U.S. v. Wilson, 534 F.2d 375, 377, 175 U.S. App. D.C. 173, 176 (1976) , and is within the subpoena power of the court, see Wynn v. U.S., 397 F.2d 621, 626, 130 U.S. App. D.C. 60, 65 (1967) . A witness is not peculiarly available to a party when there is evidence that the witness's identity was known to the opposing party requesting the instruction and that party could have subpoenaed the witness. Miles v. U.S., 483 A.2d 649, 658 (D.C. 1984) . Moreover, a witness is not physically unavailable just because the government learned of the witness's existence for the first time at trial. Carr v. U.S., 531 A.2d 1010, 1013 (D.C. 1987) . If there is evidence that a party made a bona fide effort to find and produce a witness, no adverse inference will be allowed and the missing witness instruction should not
be given. See, e.g., U.S. v. Dixon, 469 F.2d 940, 942, 152 U.S. App. D.C. 200, 202 (1972) ; ( Harris v. U.S., 430 A.2d 536, 542-43 (D.C. 1981) ; Shelton, 388 A.2d at 863-64 ; Nowlin v. U.S., 382 A.2d 9, 13 (D.C. 1978) . A witness must also be practically available before this instruction may be given. See, e.g., Dent, 404 A.2d at 170 ("Although the witness may be physically available to both sides, if a party has a special relationship with a witness, that witness becomes unavailable in a practical sense to the opposing party because his testimony is expected to be hostile."). See also Carr, 531 A.2d at 1013 (it was error to give missing witness instruction when the person was only a friend of the defendant and there was no reason to believe solely on that basis that he was unavailable to the government; moreover defense counsel proffered that she had spoken to the person and his testimony would have been basically neutral in nature); Miles, 483 A.2d at 658 ; Thomas, 447 A.2d at 57-58 ; Cooper, 415 A.2d at 533, n. 11 . Generally, a witness may be unavailable to a party because of absence from the jurisdiction, illness, the party's ignorance of the witness's whereabouts, or because the witness decides to invoke a privilege which is independent of the party's control. In these instances, the defendant should be entitled to an instruction that no adverse inference should be drawn from his failure to call this witness; however, the court does not have to give this instruction in the absence of a request. See Wilson, 534 F.2d 375, 377, 175 U.S. App. D.C. 173, 175 (1976) ; Bowles v. U.S., 439 F.2d 536, 542, 142 U.S. App. D.C. 26, 32 (1970) ; Wynn, 130 U.S. App. D.C. at 64-65, 397 F.2d at 625-26 . If a witness claims a Fifth Amendment privilege against self-incrimination, the government's refusal to grant the witness immunity in order to permit him to testify does not justify a missing witness instruction. See, e.g., Alston v. U.S., 383 A.2d 307, 313-14 (D.C. 1978) (quoting Morrison v. U.S., 365 F.2d 521, 524, 124 U.S. App. D.C. 330, 333) (1966)) ; U.S. v. Simmons, 663 F.2d 107, 108, 213 U.S. App. D.C. 343, 344 (1979) (a witness has right to exercise privilege without taking the stand and it was correct for the court to refuse missing witness instruction since the witness with the privilege was unavailable to both parties). Despite the language of the instruction, there is a split of authority as to whether a missing witness instruction is appropriate where a witness is equally available to both parties. Compare Pennewell v. U.S., 353 F.2d 870, 122 U.S. App. D.C. 332 (1965) ; McClanahan v. U.S., 353 F.2d 870, 122 U.S. App. D.C. 332 (1965) ; Conyers v. U.S., 309 A.2d 309 (D.C. 1973) (holding that no inference may be drawn from the failure to call a witness equally available to both parties) and Shelton, 388 A.2d at 864-65 (holding that it is error to give missing witness instruction where witness is equally available to both parties) with U.S. v. Young, 463 F.2d 934, 150 U.S. App. D.C. 98 (1972) ; U.S. v. Free, 437 F.2d 631, 141 U.S. App. D.C. 198 (1970) (holding that failure to produce an equally available missing witness is open to an inference against both parties). See also German, 525 A.2d at 611 (trial court properly refused to give missing witness instruction because it found that witness was unavailable to both government and defense). Whether a witness is to be regarded as equally available to both sides may depend not only on physical availability but also on his or her relationship to the parties. See Young, 150 U.S. App. D.C. at 104-05, 463 F.2d at 940-41 . There may even be circumstances where, although both parties have the ability to produce a witness, it would be natural for one party to call the witness in support of his presentation because the facts known by the witness would be expected to be favorable to the position of that party. Id. Under such circumstances, a special instruction is appropriate advising the jury that it may draw an unfavorable inference against the party who failed to call the witness. Id. Courts have held that giving a requested missing witness instruction is within the sound discretion of the trial judge. Thus, even if the two conditions of elucidation and peculiar availability are met, the court still has discretion to refuse to give the missing witness instruction. See, e.g., Ray v. U.S., 616 A.2d 333,
334-35 (D.C. 1992) (court did not abuse its discretion by refusing to give missing witness instruction when it was not "natural and reasonable" to infer that the person's testimony would have been adverse to the government); Singley v. U.S., 533 A.2d 245, 249 (D.C. 1987) (refusal to give this instruction does not constitute an abuse of discretion when the government fails to produce an informant where the informant could not aid the government's case and police made some effort to find him). This discretion must be based on a factual determination by the trial court judge. See Miles, 483 A.2d at 658-59 ("this discretionary decision should be guided by reference to the underlying rationale for the doctrine, by considering 'whether from all circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one.' "); Simmons v. U.S., 444 A.2d 962, 964 (D.C. 1982) (trial court errs when it fails to conduct factual inquiry and informed determination that missing witness instruction was in power of defendant to produce). A trial court will be reversed on appeal only on finding of abuse of discretion. Ray, 616 A.2d at 333 (D.C. 1992) ; Brown v. U.S., 555 A.2d 1034, 1035 (D.C. 1989) . The instruction should not be given sua sponte, Egan v. U.S., 287 F. 958, 52 App. D.C. 384 (1923) , but a failure to give the instruction without a request does not constitute error, Trent v. U.S., 284 F.2d 286, 290, 109 U.S. App. D.C. 152, 156 (1960) . Moreover, the court should not suggest to a party that it might wish to request a missing witness instruction. Brown, 555 A.2d at 1035 (D.C. 1989) . Before making a missing witness argument, counsel must obtain consent from the trial court. See ( Thomas) Harris, 602 A.2d at 161 (D.C. 1992) ("It has long been clear in this jurisdiction that before making a missing witness argument, counsel must obtain advance consent from the trial court."); Chappell v. U.S., 519 A.2d 1257, 1259 (D.C. 1987) (absent a prior ruling on a missing witness by the trial court, it is improper to conduct cross-exam which may suggest to the jury that the missing witness testimony would be adverse to party who failed to call witness); Lawson v. U.S., 514 A.2d 787, 792 (D.C. 1986) (comments made by prosecutor regarding missing witness without trial court's permission constituted substantial prejudice against defendant and was a reversible error); Arnold v. U.S., 511 A.2d 399, 416 (D.C. 1986) (need permission of court even if first noting absence of witness in order to avoid injecting prejudicial error into the trial); Dent, 404 A.2d at 172 (party seeking missing witness instruction should inform the court as early as possible so that an evidentiary hearing, if possible, may be scheduled). See also Allen v. U.S., 603 A.2d 1219, 1234-35 (D.C. 1992) (en banc) (prosecutor commendably alerted the trial judge to the possible prejudice of his proposed cross examination by pointing out that it came very close to raising the missing witness and missing evidence inference; court properly permitted cross examination of defendant concerning his failure to preserve evidence at the scene or to try to find the other person who was with him at the time of the shooting); Alston v. U.S., 552 A.2d 526, 528 (D.C. 1989) (even when counsel is cross examining with a view toward establishing that a purported witness does not exist--which is somewhat different from a missing witness implication--advance permission from the court should still be sought). If the trial court refuses to give a missing witness instruction and counsel requesting it nonetheless comments on the nonproduction, a trial court's timely and forceful intervention may mitigate the possibility of prejudice and thus prevent reversible error. Pennewell v. U.S., 353 F.2d 870, 871, 122 U.S. App. D.C. 332, 333 (1965) . See also Dent, 404 A.2d at 173 (an inappropriately argued missing witness inference may be corrected and the trial court may dispel prejudice, in some circumstances, by instructing the jury to disregard the remarks). Comments on absent witnesses which suggest that an inference should be drawn against the defendant because he failed to call a witness to the stand who would have to incriminate himself are not permitted. See, e.g., Bowles 142 U.S. App. D.C. at 32, 439 F.2d at 542 . When a missing witness instruction is erroneously given or erroneously argued by a prosecutor, and the defendant's credibility was crucial to his case, error is prejudicial and mandates reversal. See, e.g., Coombs v. U.S., 399 A.2d 1313, 1317-18 (D.C. 1979) ; Arnold, 511 A.2d at 415 . See also Givens v. U.S.,
385 A.2d 24, 27 (D.C. 1978) (where defendant was not given an opportunity to prove to the trial court that evidence before jury relating to witness' absence was incomplete and misleading, prosecutor committed reversible error by arguing to the jury that it could draw an adverse inference from defendant's failure to produce the witness). In other situations, when a missing witness instruction is erroneously given or argued by a prosecutor, such acts may constitute harmless error. See, e.g., Hammill v. U.S., 498 A.2d 551, 556-57 (D.C. 1985) (the prosecutor's improper argument to the jury that defendant's husband did not testify at her murder trial about the shooting which he witnessed was harmless in view of overwhelming evidence in the case).
Page 116
54 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.301 Instruction 2.301 FLIGHT OR CONCEALMENT BY DEFENDANT
You have heard evidence that [name of defendant] fled or hid [after the [name the event]] [after being accused of a crime] [from the police]. It is up to you to decide whether s/he fled or hid. If you find s/he did so, you may consider his/her fleeing or hiding as tending to show feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that [name of defendant] may have had reasons to flee or hide that are fully consistent with innocence in this case. If you find [name of defendant] fled or hid, you should consider such evidence along with all the other evidence in the case, and give it as much weight as you think it deserves.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. This instruction originally was drafted to comply with Austin v. U.S., 414 F.2d 1155, 1157-58, 134 U.S. App. D.C. 259, 261-62 (1969) , and the language was adopted from an instruction explicitly approved in U.S. v. Honesty, 459 F.2d 1279, 148 U.S. App. D.C. 255 (1971) . One area which the Committee recommends that judges consider carefully is the situation in which the defendant is alleged to have hid or fled before being identified as a suspect and the court must describe the event which the government alleges precipitated the flight or hiding. The Committee is agreed that the judge should not describe the event in language that would pre-judge whether a crime has been committed; for example, the judge should call an event a "shooting" not a "murder." See Agnew v. U.S., 813 A.2d 192, 198 (D.C. 2002) (as a general proposition, flight without more is not enough to convict; here evidence of flight was tenuous and insubstantial); Di Giovanni v. U.S., 810 A.2d 887, 895 (D.C. 2002) (sufficient evidence to justify giving standard jury instruction concerning flight
when evidence showed that after shooting the victim, the defendant ran away, jumped into the creek, swam to the other side, hid the gun next to the bank of the creek, and then deliberately tried to mislead the police); Lloyd v. U.S., 806 A.2d 1243, 1252 (D.C. 2002) (instruction permitting, but not requiring, jury to consider concealment as evidence of consciousness of guilt on defendant's part was not an abuse of discretion); (Curtis) Smith v. U.S., 777 A.2d 801, 808 (D.C. 2001) ("As long as the circumstances reasonably support an inference that [the defendant] fled because of consciousness of guilt of the charges ..., the probative value of the flight evidence is not outweighed by the potential prejudicial impact on the jury, such evidence may be admitted, and the corresponding instruction may be given," citing to a former version of Instruction 2.301 with approval); Peterson v. U.S., 657 A.2d 756, 760-61 (D.C. 1995) ("flight indicates consciousness of guilt when accused runs from crime scene and responds to police presence") (citing this instruction); Cauthen v. U.S., 592 A.2d 1021, 1024-25 (D.C. 1991) (defendant's behavior in abruptly walking away and then stopping and placing his tote bag on the ground when police pulled up in their marked vehicle was not adequate proof of an awareness of guilt; this behavior did not amount to the erratic or evasive conduct required to establish reasonable suspicion); Van Ness v. U.S., 568 A.2d 1079, 1083 (D.C. 1990) (defendant's use of name different from his own can support inference of consciousness of guilt); Smith v. U.S., 558 A.2d 312, 316 (D.C. 1989) (en banc) (to provide grounds for suspicion justifying a Terry stop, the circumstances of the suspect's efforts to avoid the police must permit a rational conclusion that flight indicated a consciousness of guilt); Joyner v. U.S., 540 A.2d 457, 460 (D.C. 1988) (court should have given flight instruction at defendant's request even though request was made after the closing arguments, but any error was harmless); Wilson v. U.S., 528 A.2d 876, 878 n.3 (D.C. 1987) (ample evidence to support giving of flight instruction); Logan v. U.S., 489 A.2d 485, 489 (D.C. 1985) (because of the danger of prejudice inherent in permitting the jury to make an inference of guilt from flight, there must be some meaningful evidence of actual flight before the instruction can be given); Williamson v. U.S., 445 A.2d 975, 981 (D.C. 1982) (an accused's flight or disappearance is admissible as evidence of consciousness of guilt); Scott v. U.S., 412 A.2d 364, 371 (D.C. 1980) ("A flight instruction is improper unless the evidence reasonably supports the inference that there was flight or concealment and that the defendant fled because of consciousness of guilt and actual guilt of the crime charged."). See also Woody v. U.S., 369 A.2d 592, 594 (D.C. 1977) (incomplete flight instruction was not plain error); U.S. v. Robinson, 475 F.2d 376, 384, 154 U.S. App. D.C. 265, 273 n.22 (1973) (better to instruct jury that "flight or concealment does not create a presumption of guilt" than to charge them that "flight or concealment does not prove guilt," citing Instruction 2.44); U.S. v. Telfaire, 469 F.2d 552, 557, 152 U.S. App. D.C. 146, 151 (1972) (while an attorney could properly argue that the jury should draw an inference from the defendant's failure to flee, the trial court properly refused an instruction that the jury could consider evidence of absence of flight as tending to prove the defendant's lack of consciousness of guilt); U.S. v. Vereen, 429 F.2d 713, 715, 139 U.S. App. D.C. 34, 36 (1970) (flight instruction prejudicially erroneous where evidence showed defendant left scene, remained within one block radius and returned to speak with the victim thirty minutes later).
Page 118
55 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.302 Instruction 2.302 FAILURE TO COOPERATE DURING IDENTIFICATION PROCEDURE
You have heard evidence that there was a court order that [name of defendant] [appear in a lineup] [speak certain words while standing in a lineup so that witnesses could hear him/her] [furnish a specimen of his/her handwriting for identification purposes] [try on an article of clothing allegedly [found at the scene of the crime] [used in the commission of the crime]] and that [name of defendant] may have refused to obey that order. It is up to you to decide if s/he refused to obey the court's order. If you find that s/he did so, you may consider his/her refusal as tending to show his/her feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that s/he may have refused for reasons [unrelated to this case or] fully consistent with innocence in this case. If you find that [name of defendant] refused [a court order [identify order if necessary]] [a request by law enforcement], you should give the evidence as much weight as in your judgment it deserves.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The Committee is not aware of any cases in either the District of Columbia Court of Appeals or the United States Court of Appeals for the District of Columbia Circuit that have interpreted this instruction.
Page 119
56 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.303 Instruction 2.303 SUPPRESSION OR FABRICATION OF EVIDENCE, OR ATTEMPTED CHANGE OF APPEARANCE BY DEFENDANT
A. SUPPRESSION OR FABRICATION OF EVIDENCE BY DEFENDANT
You have heard evidence that [name of defendant] may have [attempted to] [insert action]. It is up to you to decide if s/he took these actions and if s/he did so with the intent to [suppress evidence] [fabricate evidence]. If you do find that s/he did so, you may consider this evidence as tending to show his/her feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that s/he may have taken these actions for reasons fully consistent with innocence in this case. If you find that [name of defendant] [attempted to] [suppress[ed] evidence] [fabricate[d] evidence], you should give the evidence as much weight as in your judgment it deserves. B. CHANGE OF APPEARANCE BY DEFENDANT
You have heard evidence that [name of defendant] may have changed his appearance [prior to trial] [prior to an identification procedure] [after the offense]. It is up to you to decide whether (a) [name of defendant] in fact changed his/her appearance, and (b) s/he changed his/her appearance in an effort to avoid being identified. If you find that [name of defendant] changed his appearance to avoid being identified, you may consider this evidence as tending to show his/her feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that s/he may have changed his/her appearance for reasons fully consistent with innocence in this case. If you find that [name of defendant] changed his/her appearance in an attempt to avoid being identified, you should give
the evidence as much weight as in your judgment it deserves.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in its contents. The 2010 release separated the instruction into Parts A and B. Which Part should be given depends upon whether the defendant is alleged to have suppressed or fabricated evidence or changed his/her appearance. An attempt to change appearance is a circumstance which may be considered as an indication of the defendant's awareness of guilt and fear of identification. See Lazo v. U.S., 930 A.2d 183, 187 (D.C. 2007) (recognizing the legitimacy of an argument that the defendant's change of appearance was indicative of consciousness of guilt when supported by the evidence); U.S. v. Carr, 373 F.3d 1350, 1353, 362 U.S. App. D.C. 303, 306 (2004) ("Because there was independent evidence indicating that the defendant ... changed his appearance, the jury could reasonably infer that he did so in order to avoid identification at trial and thereby evinced [a] consciousness of guilt.") (ellipses and brackets in original; internal quotation marks and citations omitted); Scott v. U.S., 619 A.2d 917, 928 (D.C. 1993) (evidence that defendant changed jacket permitted the jury to draw inference that wearing a different jacket after the crime "reflect[ed] an awareness of guilt"). See generally Allen v. U.S., 164 U.S. 492, 499-500 (1896) (fabricating evidence does not create a presumption of guilt, but rather may be considered as evidence of consciousness of guilt).
Page 121
57 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.304 Instruction 2.304 ATTEMPTED BRIBERY, COERCION OR INTIMIDATION OF WITNESS
You have heard evidence that [name of defendant] may have attempted to persuade [name of witness] to [testify falsely] [not to testify]. It is up to you to decide if s/he attempted to persuade [name of witness] [not to testify] [to testify and if such testimony would have been false]. If you find s/he did so, you may consider this evidence as tending to show his/her feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider s/he may have attempted to persuade [name of witness] for reasons fully consistent with innocence in this case. If you find that [name of defendant] attempted to persuade [name of witness] to [testify falsely] [not to testify], you should consider this evidence along with all the other evidence in the case and give it as much weight you think it fairly deserves.____________________________________ Comment: The Fifth Edition added "may have" to the first sentence to make the instruction consistent with changes made in other instructions. The Committee did not intend to make any other substantive change in the contents of the instruction. See Wages v. U.S., 594 A.2d 1053, 1055 (D.C. 1991) (allegations of attempted bribery are not other crimes evidence, and are admissible to show a defendant's consciousness of guilt); Proctor v. U.S., 381 A.2d 249, 251 (D.C. 1977) (threats, bribery, flight, and similar post-crime conduct may evince consciousness of guilt and thus constitute admissions by conduct); U.S. v. Palmieri, 456 F.2d 9 (2d Cir. 1972) (outside information of bribery allegations not overly prejudicial when previously testified about).
Page 122
58 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.305 Instruction 2.305 STATEMENTS OF THE DEFENDANT--SUBSTANTIVE EVIDENCE
You have heard evidence that [name of defendant] made statements to the police about the crime charged. [You should consider all the circumstances, [including whether the police recorded the statement], in deciding whether s/he made the statement.] [If you find that he/she did make the statement,] [Y]ou must decide how much weight to give the statement. For example, you may consider whether s/he made the statement voluntarily and understood what s/he was saying. You may consider whether s/he was forced, threatened, or pressured, either physically or psychologically, and whether s/he was promised any reward or benefit for making the statement. You may consider all of the conversations between him/her and the police. You may consider whether the police warned him/her of his/her rights. You may consider where and when the statement was given; the duration of any questioning; who was present during some or all of the questioning of the defendant; [and whether the police recorded some or all of the conversations]. You may consider the age, education, experience, intelligence and the physical and mental condition of the defendant.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. It also added the bracketed language about the recording of the statement which may be given when the police failed to record the statement as required by D.C. Code 5-116.01. No changes were made in the Fifth Edition. This instruction should be given when the government seeks to introduce a defendant's statements to the police as substantive evidence. Although the government will usually only introduce, as substantive evidence, inculpatory statements made by a defendant to the police, a judge need not characterize such statements for the jury as confessions or admissions. Finally, the bracketed language may be given if the defendant denies making the statement. It now seems clear that in both the federal and Superior Courts, the jury should not be instructed to
determine the legal issue as to whether such statements were made freely and voluntarily, but rather should be instructed to scrutinize all the circumstances surrounding these statements, including voluntariness, in determining what weight to give them in deciding whether the defendant is guilty or not guilty. While the jury does not determine the voluntariness of such a statement, a defendant may nevertheless raise the issue before the jury of the alleged involuntariness of his/her statement in arguing about the statement's appropriate weight. Crane v. Kentucky, 476 U.S. 683, 688 (1986) . Cross references: No. 2.306, Defendant's Statements--Corroboration; No. 2.308, Evidence Admitted Against One Defendant Only.
Page 124
59 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.306 Instruction 2.306 DEFENDANT'S STATEMENTS--CORROBORATION
A defendant cannot be convicted solely on his/her own statements concerning the elements of the offense that s/he made out of court. Therefore, you must not consider the statements allegedly made by the defendant unless you find that there is substantial independent evidence that tends to establish the reliability of these statements. This supporting evidence may be direct or circumstantial or both. You must find the defendant not guilty, unless the independent evidence and the defendant's statements, taken as a whole, establish each of the elements of the offense beyond a reasonable doubt.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. This instruction should not be given in U.S. District Court. U.S. v. Dickerson, 163 F.3d 639, 642, 333 U.S. App. D.C. 348, 351 (1999) (jury need not be separately instructed that defendant cannot be convicted on the basis of an uncorroborated out-of-court statement, as this is an admissibility question to be determined by the trial judge). In addition, this instruction should not be given where the statements attributed to the defendant are exculpatory in character and are admitted solely for the purpose of impeachment. Hall v. D.C., 353 A.2d 296, 298 n.9 (D.C. 1976) . The instruction uses the word "statements" rather than "confessions or admissions." There does not appear to be any reason for the court to characterize a defendant's statements as admissions or confessions. Sometimes a defendant's statements may not constitute "a strict confession," but may go to prove essential elements of the crime. Such statements must also be corroborated. Opper v. U.S., 348 U.S. 84, 91 (1954) .
Where a crime involves injury to a person or property, the government must generally show that the injury for which the defendant confesses responsibility in fact occurred and that some person was criminally culpable, e.g., corroboration of a homicide by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), 2972, n.5 ("There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it."); Hicks v. U.S., 382 F.2d 158, 163, 127 U.S. App. D.C. 209, 214 n.6 (1967) (citing Wong Sun v. U.S., 371 U.S. 471, 489-90 n.l5 and text, 488-90 (1963) and Smith v. U.S., 348 U.S. 147, 153-54 (1954)) .
Page 126
60 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.307 Instruction 2.307 MOTIVE
Motive is not an element of the offense[s] charged, and the government is not required to prove motive in this case. You may, however, consider evidence of motive or lack of evidence of motive in deciding whether or not the government has proved the charge[s] beyond a reasonable doubt.____________________________________ Comment: This new instruction was added to the Fifth Edition. The court should give an instruction on lack of motive if so requested. See Bright v. U.S., 698 A.2d 450, 458 (D.C. 1997) (upholding propriety of instruction almost identical in substance to above instruction where defendant challenged failure to give lack-of-motive instruction); Belton v. U.S., 382 F.2d 150 n.11 (D.C. Cir. 1967) ("Defendant would have been entitled on request to a charge that absence of proof of motive may be considered as a circumstance in defendant's favor.") (citations omitted).
Page 127
61 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.308 Instruction 2.308 EVIDENCE ADMITTED AGAINST ONE DEFENDANT ONLY
[Identify evidence/statement admitted only against a particular defendant] was admitted only with respect to [name of particular defendant], and it was not admitted against [name(s) of other defendant(s)]. You may consider such evidence only with respect [name of defendant]. You must not consider it in any way in your deliberations with respect to [names of other defendant(s)].____________________________________ Comment: This instruction should be given both as a limiting instruction when the evidence is first admitted and then again in the final instructions. The 2008 release clarified the instruction by adding the bracketed language directing the court to identify the specific evidence that was admitted only against a particular defendant. See Hordge v. U.S., 545 A.2d 1249, 1257 (D.C. 1988) (reversible error when trial court failed to give immediate instruction that codefendant's prior inconsistent statement could not be used as substantive evidence against defendant). When identifying the specific statements, the court should consider doing so by when made or to whom--rather than their contents. When other evidence, in addition to statements, is admissible against only one defendant and not another, the court may want to instruct on the statements separately from the other evidence. This instruction addresses the statements of co-defendants that are admissible only against one defendant. The statement of a co-defendant implicating the defendant normally may not be admissible in a joint trial where the co-defendant does not take the stand to testify. Bruton v. U.S., 391 U.S. 123, 124-25 (1968) . The co-defendant's statement may be admissible where the co-defendant takes the stand even if he denies making the statement and, therefore, cannot be effectively cross-examined. Nelson v. O'Neil, 402 U.S. 622, 627 (1971) . Other cases have suggested that Bruton may be inapplicable in various situations. See, e.g., Dutton v. Evans, 400 U.S. 74, 81 (1970) (where a co-conspirator's statement
implicating the defendant is admissible against the defendant as an exception to the hearsay rule because made during the concealment phase of a conspiracy); Borrero v. U.S., 332 A.2d 363, 366 (D.C. 1975) (co-defendant's pretrial statements inculpating the defendant were admitted at trial to impeach the co-defendant's statements exculpating the defendant, and the jury was properly instructed not to consider the co-defendant's pretrial statements as evidence against the defendant). Sometimes in a joint trial where the government relies on a theory of conspiratorial vicarious liability, a statement of one co-defendant may be admissible against that defendant but not against the others. Redacting that statement to refer only to the defendant against who it is offered and giving a limiting instruction may not be sufficient to safeguard the remaining co-defendants' confrontation rights if a Pinkerton instruction is also given. In Akins v. U.S., 679 A.2d 1017, 1029 (D.C. 1996) , one judge believed: "Because the conspiracy theory embodied in the Pinkerton instruction underlay the appellants' own culpability in this case, however, no amount of redaction could overcome the fact that any testimonial evidence tending to incriminate a coconspirator also incriminated [the co-defendants], ordinarily entitling them to cross-examine its source." A second judge believed that a properly worded limiting instruction might be sufficient to address the problem. Id. at 1037-39 . The third judge on the panel found that the instructions, as given, did not affect the jury's verdict. Id.; see also Baker v. U.S., 867 A.2d 988, 1001 (D.C. 2005) (affirmed convictions applying plain error and Chapman constitutional harmless error standards of review to statements that were admitted only against one co-defendant and a limiting instruction as well as a Pinkerton instruction were given); see generally Erskines v. U.S., 696 A.2d 1077, 1080 (D.C. 1997) ("We conclude ... that our holding in Akins rested upon the 'unique theory of [vicarious] liability,' ... on which the jury was instructed in that case, and that this holding may not be transposed to the related but distinctively different context of aiding and abetting."). Bruton does not apply when the co-defendant does take the stand and is available for cross-examination, but there may still be a severance issue under District of Columbia caselaw. One defendant's out-of-court statement may not be admissible against a co-defendant because "[u]nder the traditional rules of evidence, it constitutes inadmissible hearsay and has no legitimate probative force against the nondeclarant defendant." Carpenter v. U.S., 430 A.2d 496, 500 (D.C. 1981) (en banc) (discusses ways for trial court to address the problem, including severance, redaction or exclusion of the statement). Cross references: No. 1.203, Where Charges Are Dismissed Mid-trial; No. 2.305, Statements of the Defendant--Substantive Evidence.
Page 129
62 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.310 Instruction 2.310 TRANSCRIPTS OF TAPE RECORDINGS
Recordings of conversations identified by witnesses have been received in evidence. Transcripts of these recorded conversations are being furnished for your convenience and guidance as you listen to the tapes to clarify portions of the tape which are difficult to hear, and to help you identify speakers. The recordings, however, are the evidence in the case; the transcripts are not. If you notice any difference between the transcripts and the recordings, you must rely only on the recordings and not the transcripts. In addition, if you cannot determine from the recording that particular words were spoken, you must disregard the transcripts as far as those words are concerned.____________________________________ Comment: The instruction should be given only in a case where recordings are being played before the jury and transcripts are made available to the jurors to assist in their understanding of the recordings. The instruction should be given before the recordings are played and repeated as part of the final instructions. Springer v. U.S., 388 A.2d 846, 853-54 (D.C. 1978) (whenever transcripts are utilized in a trial, a judge should issue a cautionary instruction; the cautionary instruction should be repeated when the case is submitted to the jury; and the "transcripts should not be permitted in the jury deliberation room without the express consent of all parties concerned"), overruled on other grounds, Sloan v. U.S., 527 A.2d 1277, 1286 (D.C. 1987) . This instruction should not be given where, by reason of stipulation or otherwise, the transcripts themselves are admitted into evidence. See Instruction 2.501. It is sometimes the practice in cases involving large numbers of recorded conversations, such as cases involving wiretaps, that the trial judge will permit the government to assemble the transcripts into notebooks for the jury. In such cases, the trial judge should instruct the jury that they are only to refer to the particular transcript for the tape being played for them and that they should close the notebooks when
a tape is not being played. The trial judge and the parties should be alert to signs that jurors might be reading transcripts when they have been instructed not to do so. If there is a dispute about the accuracy of the transcript or if the parties wish, the court should make the transcript part of the record for appellate purposes. Superior Court The Court of Appeals in Springer, exercising its supervisory powers, issued guidelines regarding the admissibility of tapes and transcripts and the need and timing for a cautionary instruction.
Where feasible, the parties should verify the accuracy of any transcript and the audibility of the tapes pretrial, and an appropriate stipulation on these points then should be entered in the record. Where the parties are unable to enter such a stipulation, the determination of audiblity and accuracy rests with the trial court, and the court must make appropriate findings of fact. The court, preferably pretrial, and always out of the presence of the jury, should listen to the tapes for audiblity and verify that the transcript is an accurate transcription of the tape. Only after the court has made such factual findings should it permit the jury to utilize the transcripts as an aid in listening to the tapes. The transcripts themselves are not the evidence--the tapes remain the evidence. To prevent undue reliance on the transcripts, the jurors should only be permitted to have possession of or to refer to the transcripts when the tapes are being played. Further, whenever the transcripts are utilized, the jury should be informed, by a cautionary instruction, that the transcripts are provided merely to facilitate their comprehension of the tapes on which they are to rely. This cautionary instruction should be repeated when the case is submitted to the jury. The transcripts should not be permitted in the jury deliberation room without the express consent of all parties concerned. However, if during jury deliberation the court permits the jury to rehear tapes in open court, it may permit re-use of the appropriate transcript, with cautionary instruction. Springer, 388 A.2d at 853-54 (footnotes omitted). See also German v. U.S., 525 A.2d 596, 610 (D.C. 1987) (authentication requirement satisfied by testimony that transcript represented a true and accurate copy of the original taped conversation); Akins v. U.S., 679 A.2d 1017 (D.C. 1996) (finding that a partial transcript, where the term "unintelligible" had been inserted for portions disputed by the parties, did not prejudice the jury by directing attention to the more audible portions of the recording). U.S. District Court In U.S. v. Holton, 116 F.3d 1536, 1541, 325 U.S. App. D.C. 360, 365 (1997) , the D.C. Circuit "agree[d] with the other circuits that have held it is within the district court's discretion to permit the jury to use transcripts during deliberations." For a transcript to be used in federal court, either (1) the parties must stipulate that it is accurate or (2) the judge must compare the proposed transcript to the tapes and determine its accuracy or (3) the judge should provide the jury with one transcript with the prosecution's interpretation and one transcript with the defendant's interpretation of the tape. Id. The Circuit further advised that "[a]lthough it makes little practical difference if a transcript is formally admitted into evidence, so long as its transmission to the jury is accompanied by appropriate instructions limiting its use to that of an aid, we believe that it is the better practice to require formal admission into evidence during the trial so that parties objecting to the transcript will be apprised of the possibility that the document could be given to the jury during deliberations and so that the judge will be sure to provide the jury with appropriate instructions as to its limited use on admission. Formal admission would reduce the
risk of surprising counsel by a last minute decision to send the transcript into the jury room if the jury requests a replaying of the tapes." Id at 366, 116 F.3d at 1542 . See also U.S. v. Slade, 627 F.2d 293, 299-303, 200 U.S. App. D.C. 240, 246-50 (1980) (jury's access to government prepared transcripts not error where transcripts were relatively accurate and court gave cautionary instruction similar to this instruction).
Page 132
63 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.311 Instruction 2.311 TRANSLATION OF FOREIGN LANGUAGE DOCUMENT OR RECORDING
[You are about to listen to or watch a recording in [language used]. Each of you has been given a transcript that translates the recording into English.] [I have admitted a document that is in [language used] along with an English translation.] Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript. If, however, you have a question as to the accuracy of the English translation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the translation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, you must rely only upon the official English translation provided by the court interpreter and not on your own translation.____________________________________ Comment: This is a new instruction in the Fifth Edition. The issue of reliance on English translation of a foreign language has not been addressed previously in the jury instructions. It may be appropriate to question potential jurors during voir dire about their ability to understand languages other than English that may be used during trial, and on their ability to follow only the English translation of this language. This instruction assumes that the parties agree on the accuracy of the translation. If the parties disagree as to the accuracy of the transcript, the court should revise this instruction accordingly.
Page 133
64 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.320 Instruction 2.320 INFERENCE FROM THE POSSESSION OF RECENTLY STOLEN PROPERTY
If you find beyond a reasonable doubt that [name of defendant] possessed property that was recently stolen, and you do not see a satisfactory explanation for that possession, you may, but are not required to, find from this and all the other circumstances in evidence that s/he [knew the property was stolen] [stole the property]. It is up to you to decide whether all the evidence justifies a finding, beyond a reasonable doubt, that the defendant [knew that the property was stolen] [committed the crime of [insert name of crime]]. [ Define Possession, No. 3.104, if necessary.] The word "recently" does not mean a set time period, but it is an important word. The longer the time between the theft of the property and the evidence of its possession, the more doubtful it is that possessing the property shows that the defendant [knew it was stolen] [was the person who stole it]. The government bears the burden of proof on this issue; possession of recently stolen property does not shift the burden of proof to the defendant. Moreover, [name of defendant] is not required to testify to provide a satisfactory explanation of recently stolen property. Such an explanation can come from other evidence. [Before you may find the defendant guilty of [name of offense] based on a finding of possession of recently stolen property, you must find beyond a reasonable doubt that the crime of [name of offense] was committed. If you do not find that the crime of [name of offense] was committed, you may not find the defendant guilty of that crime.] [The defendant is charged with the theft of [describe item]. If you find that the defendant was in possession of some but not all of the property, that it was recently stolen, that his/her possession of the property has not been satisfactorily explained, and that all the property was stolen at the same time, you may infer that the defendant stole all the property.]____________________________________ Comment:
The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. In most cases, the definition of possession found in Instruction 3.104 will be sufficient to explain to the jury that the defendant need not have sole possession. Possession, as defined in Instruction 3.104, includes joint and constructive possession, and requires that the defendant "knowingly [have] both the power and the intent at a given time to control it, either by himself or through another person." This should be sufficient in most cases to require a finding that the defendant "bor[e] some distinctive relationship to the property in possessing it." See, e.g., U.S. v. Johnson, 433 F.2d 1160, 1164, 140 U.S. App. D.C. 54, 58 (1970) (arguably, on these facts, if jury found that defendant knowingly had both the power and intent to exercise dominion and control over the car, that finding would have justified the inference). There may be a rare case, however, where the possession definition is not sufficient. For example, suppose a burglary case in which the government's case indicates that only one person entered the premises. If two people later are found in joint possession of the property, as defined in the possession instruction, and there is no evidence indicating that one bore a "more distinctive relationship" to the property than the other, there might not be enough to permit a finding of guilt as to one or the other. See, e.g., People v. Thompson, 114 Mich. App. 302, 319 N.W.2d 568, 570 (Mich. Ct. App. 1982) . When there is evidence to show that each bore a "distinctive" relationship to the property, vis a vis all others in the world, then a joint crime (e.g., one person aiding and abetting the other) might be inferred. In that situation, the court may want to insert "exclusive" before the word "possession" in the first sentence of the instruction and insert the following definition of "exclusive":
The word "exclusive" does not mean that the defendant must necessarily have been in sole possession of the property; s/he could have shared possession with others. It means only that s/he must have borne some distinctive relationship to the property in possessing it before the inference may be drawn. This instruction also recognizes that either of two alternative inferences may be drawn from the possession of recently stolen property, depending upon the offense charged and the evidence introduced at trial. See Charles v. U.S., 371 A.2d 404, 407 n.1 (D.C. 1977) ; U.S. v. Fench, 470 F.2d 1234, 1243, 152 U.S. App. D.C. 325, 334 (1972) . On some occasions, the jury is directed only to consider a limited inference of knowledge of the theft of the stolen property. See, e.g., Barnes v. U.S., 412 U.S. 837, 842 n.3 (1973) ; Brock v. U.S., 404 A.2d 955, 958 (D.C. 1979) ; Charles, 371 A.2d at 406-07 . At other times, the jury may be directed to draw a broader inference of the defendant's identity as the perpetrator of an offense involving the theft of property or the receipt of stolen property. See, e.g., Pendergrast v. U.S., 416 F.2d 776, 135 U.S. App. D.C. 20 (1969) . In the Committee's view, the instruction approved by the Supreme Court in Barnes is clearly sufficient where the jury is being directed to consider whether to draw a limited inference of knowledge of theft from the possession of recently stolen property, and it is obviously inappropriate to charge the jury under such circumstances that it may not draw such an inference until after it has found proof by the government beyond a reasonable doubt of "every essential element of the offense." Compare Pendergrast v. U.S., 416 F.2d 776, 135 U.S. App. D.C. 20 (1969) . However, where the issue before the jury centers on the identity of the offender, a fuller explanation of the jury's responsibilities, including its obligation to find beyond a reasonable doubt that the offense was committed before drawing any
inference as to the identity of the perpetrator is clearly necessary. See White v. U.S., 300 A.2d 716 (D.C. 1973) (government must prove corpus delicti of crime with reliance on mere inference insufficient to prove burglary). Thus, the bracketed language in the fourth paragraph of the instruction, adapted from language approved by the court in Pendergrast, must be given where the inference is to be one of identity. The source of possible "satisfactory explanations" has been left ambiguous to dilute the danger that the instruction actually places a burden on the defendant. Unexplained or unsatisfactorily explained possession of stolen property cannot, in and of itself, give rise to an inference that an offense was committed. See Hawthorne v. U.S., 476 A.2d 164, 168 (D.C. 1984) ; White, 300 A.2d at 720 . However, possession of stolen property can give rise to an inference that the possessor entered the premises with the intent to steal, so as to commit burglary, if there exists evidence which places the defendant in the premises where the theft occurred. Hawthorne, 476 A.2d at 168 . The bracketed last paragraph of the instruction is to be used where the defendant is charged with theft, all at one time, of a greater amount of property than that found in his/her possession. See U.S. v. Coggins, 433 F.2d 1357, 140 U.S. App. D.C. 134 (1970) . The time span encompassed by the term "recently" varies from case to case. See, e.g., Charles v. U.S., 371 A.2d 404, 406 (D.C. 1977) (theft occurring 23 days before the arrest of the defendant is recent); Goins v. U.S., 475 A.2d 362, 364 (D.C. 1984) (theft of two automobiles occurring one month and four months prior to arrest of defendant is recent); cf. U.S. v. Johnson, 433 F.2d 1160, 1166, 140 U.S. App. D.C. 54, 60 n. 40 (1970) (conviction of grand larceny affirmed where government relied heavily on possession of property stolen approximately nine months earlier). See Blackledge v. U.S., 447 A.2d 46 (D.C. 1982) . The inference that one can draw from the possession of stolen goods weakens as the passage of time increases. See Johnson, 140 U.S. App. D.C. at 60 n. 40, 433 F.2d at 1166 n.40 ; Charles, 371 A.2d at 407 n.2 . This instruction explicitly identifies the role "recently" plays in the logic of the inference, rather than merely apprising the jury that it lacks a fixed meaning. See also Wilson v. U.S., 380 A.2d 1001 (D.C. 1977) ; U.S. v. Gallo, 543 F.2d 361, 177 U.S. App. D.C. 214 (1976) U.S. v. Carter, 522 F.2d 666, 173 U.S. App. D.C. 54 (1975) (inference is confined to theft offenses and other offenses where possession is the essence of the crime; error to extend inference to other offenses where it does not follow naturally from the proved facts on which the inference depends); Fleming v. U.S., 310 A.2d 214 (D.C. 1973) (lengthy discussion of inference); U.S. v. Sawyer, 443 F.2d 712, 143 U.S. App. D.C. 297 (1971) (defendant must be permitted to argue to jury that it is not bound to draw inference on theft from a showing of possession of stolen property). Cross reference: No. 3.104, Possession--Defined.
Page 136
65 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions C. Evaluation of Other Evidence 1-II Criminal Jury Instructions for DC Instruction 2.321 Instruction 2.321 OTHER CRIMES EVIDENCE
A. EVIDENCE OF OTHER CRIMES ADMITTED TO SHOW MOTIVE, IDENTITY OR COMMON SCHEME OR PLAN You have heard evidence that [name of defendant] [describe other crimes evidence]. It is up to you to decide whether to accept that evidence. If you find that [name of defendant] [describe the other crimes conduct], you may use this evidence only for the limited purpose of deciding whether [1. [Name of defendant] had a motive to commit the [name of offense[s]] charged in the [indictment] [information].] [2. The circumstances of the other crimes and charged offense[s] are so similar that it is likely that the person who [describe the other crimes conduct] also committed the [name of offense[s]] charged in the [indictment] [information].] [3. The [describe the other crimes conduct] and the [name of offense[s]] charged in the [indicment] [information] are part of a common scheme or plan.]
If you conclude that [1. [Name of defendant] had such a motive.] [2. The [describe the other crimes conduct] is so similar to the charged offense[s] that it is likely that the same person committed both of them.]
[3. There was a common scheme or plan.]
You may use this evidence in determining whether the government has proved beyond a reasonable doubt that [[Name of defendant] is the person who committed the [name of offense[s]] charged in the [indictment] [information]] [[Name of defendant] [insert purpose for which the evidence was introduced].
You may not use this evidence for any other purpose. [Name of defendant] is only on trial for the crimes charged. The defendant is not charged in this case with any offense relating to [describe the other crimes conduct], and you may not use this evidence to conclude that [name of defendant] has a bad character, or that [name of defendant] has a criminal personality. The law does not allow you to convict a defendant simply because you believe he may have done bad things not specifically charged as crimes in this case. B. EVIDENCE OF OTHER CRIMES ADMITTED TO SHOW INTENT, ABSENCE MISTAKE OR ACCIDENT OR KNOWLEDGE You have heard evidence that the defendant [describe other crimes evidence]. It is up to you to decide whether to accept that evidence. [You must first decide, without considering [describe other crimes evidence] at all, whether the government has proved beyond a reasonable doubt that [name of defendant [insert actus reus]. If you find that the government has proved beyond a reasonable doubt, that the defendant [insert actus reus], then you may consider the evidence that the defendant [describe other crimes evidence].] If you find that the defendant [describe other crimes evidence], you may use this evidence only for the limited purpose of deciding/determining whether the government has proved beyond a reasonable doubt that [name of defendant] [intended to [insert object of intent] [acted knowingly and on purpose, and not by mistake or by accident] [knew that [insert purpose for which the evidence was introduced]]. You may not use this evidence for any other purpose. [Name of defendant] is only on trial for the crimes charged. [Name of defendant] is not charged in this case with any offense relating to [describe the other crimes conduct], and you may not use this evidence to conclude that the defendant has a bad character, or that [name of defendant] has a criminal personality. The law does not allow you to convict a defendant simply because you believe he may have done bad things not specifically charged as crimes in this case. ____________________________________ Comment: This instruction is divided into two parts. Part A should be given when other crimes evidence is introduced to establish a factor, e.g., motive, common scheme or plan, or modus operandi, that in turn has a bearing on an element, such as identity. Part A, then, involves a two-step analysis. Part B should be given when other crimes evidence is introduced to prove directly an element of the offense, e.g. as intent, absence of mistake or accident, and knowledge. Portions of each instruction are bracketed so that the court can choose the appropriate language depending upon the facts of the case. The second paragraph of Part B is bracketed to indicate that it should be given only when the other crimes evidence is admitted solely for the purpose of showing intent. In U.S. v. McClain, 440 F.2d 241, 246, 142 U.S. App. D.C. 213, 218 (1971) , the D.C. Circuit suggested, without discussion, that evidence
of prior violent acts introduced only on the issue of malice should be considered by the jury only after it determined that defendant was guilty of the unlawful killing of decedent. This proposition later found support in Thompson v. U.S., 546 A.2d 414, 426 (D.C. 1988) ("Although this message may perhaps be read into District of Columbia Jury Instruction 2.49 [3d Ed.], we think that an explicit direction to the jurors that they must first decide the issue of possession without considering Thompson's earlier sale at all, and only then that they may consider the prior sale as showing intent, would have enhanced in some measure the likelihood that the jury could have and would have used the evidence appropriately."). However, the D.C. Circuit seems to have backed away from the suggestion in McClain finding that "the concepts of knowledge and intent are [not] so easily separated from possession." A jury "can infer possession from motive, which could in turn be inferred from intent." U.S. v. Cassell, 292 F.3d 788, 793, 352 U.S. App. D.C. 84, 89 (2002) (rejecting defense claim that because he denied possession of firearms found in his bedroom, other crimes evidence was inadmissible). Accord U.S. v. Crowder, 141 F.3d 1202, 1208 (D.C. Cir.1998) (en banc) ("Rule 404(b) evidence will often have such multiple utility, showing at once intent, knowledge, motive, preparation and the like... . In proving that a defendant intended to distribute crack cocaine, for instance, the government might simultaneously be showing the defendant's motive to possess the crack, which Rule 404(b) permits. Intent would thereby serve as an intermediate fact from which the jury could infer another intermediate fact--motive--from which it could in turn infer the element of possession. Thus, other-offense evidence of intent would have probative value not just on the intent element, but also on the possession element of the offense."). The second paragraph of Part B should not be given if the other crimes evidence is admitted on other issues. In U.S. v. Bobbitt, 450 F.2d 685, 689-91, 146 U.S. App. D.C. 224, 229-31 (1971) , the court held that where both intent and the question of whether the defendant was the person who pulled the trigger were disputed, evidence that the defendant had previously threatened to shoot the victim was relevant to both issues; and therefore, an instruction of the kind found in the second paragraph of Part B should not be given. Cf. Jackson v. U.S., 856 A.2d 1111, 1116-17 (D.C. 2004) (concluding that "Thompson only applies to other crimes evidence proffered to establish intent and does not extend to encompass any other Drew exceptions ..."). If the defense or prosecution wants an instruction on the limited use of other crimes evidence, it should ask for one. In U.S. v. Hammond, 52 F.3d 1123, 311 U.S. App. D.C. 278 (1995) , the D.C. Circuit rejected " 'the broad prophylactic rule that a trial court must give an immediate though unrequested cautionary instruction' whenever it admits evidence pursuant to Rule 404(b); 'the burden ... to guard against any potential misuse of evidence,' ... should be borne by defense counsel, not by the trial court." (quoting U.S. v. Miller, 895 F.2d 1431, 1439 (D.C. Cir. 1990)) . Similarly, the District of Columbia Court of Appeals in Johnson v. U.S., 387 A.2d 1084, 1087 (D.C. 1978) (en banc), has overruled the "absolute sua sponte obligation to issue an immediate cautioning instruction whenever evidence is brought in which is admissible only for a limited purpose ... ." Introductory Comment
Superior Court Practice For Superior Court, the District of Columbia Court of Appeals in Johnson v. U.S., 683 A.2d 1087 (D.C. 1996) (en banc), explained that it "will follow the policy set forth in Federal Rule of Evidence 403 that evidence, although relevant and otherwise admissible, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, and will apply that policy not only to admission of evidence generally, but also to the decision whether or not to admit evidence of other crimes that qualifies for admission under the exceptions to the Drew rule." Id. at 1090 . See also Long v.
U.S., 687 A.2d 1331, 1334 n.11 (D.C. 1996) ("In Johnson, the en banc court recently adopted Fed. R. Evid. 404(b) (modified) and 403 (in part) to govern admissibility of other crimes evidence."). Thus, under Johnson, while the " 'government must carry the burden of showing how the proffered [other crimes] evidence is relevant to one or more issues [other than propensity] in the case, and must demonstrate that, on balance, its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant,' " id. at 1101 (citing U.S. v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987) , there is no longer a presumption of inadmissibility. To admit other crimes evidence subject to Drew, the government must demonstrate to the trial court that the defendant committed the other crime by clear and convincing evidence. Jackson v. U.S. 856 A.2d 1111, 1115 n.5 (D.C. 2004) . The "manner in which the trial court conducts the pre-admission inquiry under Drew is left to the sound discretion of the trial court." Lewis v. U.S., 567 A.2d 1326, 1330 (D.C. 1989) . A "trial court may act within its discretion to conduct its pretrial inquiry on the admissibility of the other crimes evidence by means of a 'detailed proffer from the government' instead of holding, in effect, a bench trial of the other crime, which presumably will be fully replicated before the jury if admitted.' " Anderson v. U.S., 857 A.2d 451, 457 (D.C. 2004) (internal citations and quotations omitted). In its proffer, "the government must show the trial court that the evidence that it proposes to present during the trial would, if believed, clearly and convincingly establish that the uncharged crime occurred and the defendants were connected to it." Id. (emphasis added). U.S. District Court Practice In District Court, the admissibility of uncharged misconduct evidence is governed by Fed. R. Evid. 404(b). That Rule provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. In contrast to Superior Court, under the Federal Rules of Evidence, the trial court is not required to make any threshold factual findings before admitting the evidence of uncharged misconduct. Rather, evidence of uncharged misconduct may be admissible "if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Huddleston v. U.S., 485 U.S. 681, 689 (1988) (citation omitted). Interpreting Rule 404(b) in conjunction with Fed. R. Evid. 104(b), the Huddleston Court held further that "[i]n determining whether the Government has introduced sufficient evidence [of the uncharged misconduct], the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The [trial] court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence." Huddleston, 485 U.S. at 690 (citation omitted). The trial court has discretion to admit the evidence before making any finding, "and at a later point in the trial assess whether sufficient evidence has been offered to permit the jury to make the requisite finding." Id. (footnote omitted). Should the court admit the evidence and later determine that the government "has failed to meet this minimum standard of proof, the trial court must instruct the jury to disregard the evidence." Id.
"Although stated as a restriction, the Rule is actually one of "inclusion rather than exclusion." U.S. v. Cassell, 292 F.3d 788, 792, 352 U.S. App. D.C. 84, 88 (2002) , quoting U.S. v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000) . The D.C. Circuit "will not sustain a Rule 404(b) objection if the evidence of other crimes is relevant, relates to something other than character or propensity, and supports a jury finding that the defendant committed the other crime or act. Once past this first step, the evidence is admitted unless it is otherwise prohibited under any of the other 'general strictures limiting admissibility,' such as Rule 403." Id. (citations omitted). "Prior crimes evidence ... does not become "irrelevant if the government's other evidence is sufficient to establish the elements of the offense." U.S. v. Pettiford, 517 F.3d 584, 588-89, 380 U.S. App. D.C. 144, 148-49 (2008) (citations omitted). "[A] defendant's offer to stipulate to an element of an offense does not render the government's other crimes evidence inadmissible under Rule 404(b) to prove that element, even if the defendant's proposed stipulation is unequivocal." U.S. v. Crowder, 141 F.3d 1202, 1210, 329 U.S. App. D.C. 418, 426 (1998) (en banc). "[I]n cases where a defendant is charged with unlawful possession of something, evidence that he possessed the same or similar things at other times is often quite relevant to his knowledge and intent with regard to the crime charged." U.S. v. Cassell, 292 F.3d. at 793 (citations omitted). As in Superior Court, the trial court must, upon request, instruct the jury as to the limited purpose for which the evidence is admitted. See Fed. R. Evid. 105; see also Huddleston, 485 U.S. at 691-92 (citation omitted) ("protection against [risk of] unfair prejudice emanates [in part] from ... Federal Rule of Evidence 105"). General Legal Principles Relevant in Both Courts "Evidence of crimes, independent of the crime charged, are inadmissible to prove a defendant's disposition to commit the crime charged." Frye v. U.S., 926 A.2d 1085, 1092 (D.C. 2005) . However, "such evidence is admissible for legitimate purposes, such as to prove motive, intent, absence of mistake or accident, a common scheme or plan, or identity of the person charged with the crime on trial." Id. Even if the other crimes evidence consists of acts which were originally charged and then dismissed, it may still fall within Drew. See U.S. v. Bacchus, 06-CM-1263, slip op. at 7 (D.C. April 30, 2009) (criminal charges that were dismissed are admissible in evidence if they otherwise meet the requirements of Drew). Even if otherwise meeting the test for admissibility as an exception to Drew, "the evidence must still be excluded 'if the danger of unfair prejudice [resulting from its admission] substantially outweighs its probative value.' " Id. (citing Johnson v. U.S., 683 A.2d 1087, 1101 (D.C. 1996) (en banc)). "[T]he evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision [with respect thereto]." Id. at 1095 . The "five [exceptions set forth in the paragraph above] are not the only exceptions to the rule against admitting evidence of other crimes, but they are the main ones." Hill v. U.S., 600 A.2d 58, 61 n.2 (D.C. 1991) (citation omitted). See Holmes v. U.S., 580 A.2d 1259, 1267 (D.C. 1990) ; Lewis v. U.S., 567 A.2d 1326, 1330 (D.C. 1989) . For example, the District of Columbia Court of Appeals has also recognized that under certain circumstances, "evidence of a history of sexual abuse of the complainant by the defendant may be admissible on a theory of predisposition to gratify special desires with that particular victim," Pounds v. U.S., 529 A.2d 791, 794 (D.C. 1987) (footnote omitted), and that "proof of a defendant's past sexual misconduct, similar to the sexual misconduct for which he is being tried, [may be admissible] in order to show that he has an 'unusual sexual preference.' " Johnson v. U.S., 610 A.2d 729, 730 (D.C. 1992) (citations omitted) (sexual misconduct involved parties other than complainant).
The Court of Appeals has also held that where the defendant raises a claim of self-defense, evidence of "prior aggressive conduct of the defendant towards the decedent" may also be admissible to rebut that claim. Rink v. U.S., 388 A.2d 52, 56 (D.C. 1978) . Such evidence is probative of the defendant's malice and the defendant's reasonable fear; it is also relevant to the issue whether the defendant was the aggressor. Id. The Court of Appeals has also held that evidence of uncharged misconduct may be admissible to show "consciousness of guilt." See Wages v. U.S., 594 A.2d 1053, 1055 (D.C. 1991) (citations omitted) (noting that uncharged misconduct evidence probative of consciousness of guilt "was arguably not other crimes evidence but rather circumstantial evidence of the crime charged"); Proctor v. U.S., 381 A.2d 249, 251 (D.C. 1977) ("[t]hreats, bribery, flight, and similar post-crime repeatedly have been held to evince 'consciousness of guilt,' and thus constitute 'admissions by conduct' ") (quotations and footnote and citations omitted). The District of Columbia Court of Appeals noted in (William) Johnson v. U.S., 609 A.2d 1087, 1098 (D.C. 1996) (en banc), that "Drew does not apply where such evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context." Thus, Johnson reaffirmed the principle that Drew does not apply to "evidence of the crime charged," Johnson v. U.S., 596 A.2d 980, 987 (D.C. 1991) (quoting Ali v. U.S., 581 A.2d 368, 377 (D.C. 1990)) ; nor does Drew apply to evidence that "explain[s] the circumstances surrounding the offense charged." Toliver v. U.S., 468 A.2d 958, 960 (D.C. 1983) . See Scott v. U.S., 954 A.2d 1037, 1043 (D.C. 2008) (ziplock bags of marijuana found in defendant's car at the time of arrest were admissible, without regard to the rules for other-crimes evidence, because the drugs connected the defendant to the gun also found in the car). A party must establish the necessary evidentiary foundation for admission of other-crimes evidence only when the evidence in question relates to other, uncharged criminal conduct. Where the evidence does not suggest previous criminal activity, the strictures of Drew and its progeny do not come into play. See Jackson v. U.S., 945 A.2d 621, 626 (D.C. 2008) (testimony about an allegedly gang-related teardrop tattoo was admissible without regard to the Drew requirements, where defense counsel conceded that the tattoo's significance was "open to interpretation"; Drew analysis does not control "when the circumstantial evidence in and of itself cannot be characterized as establishing criminal behavior") (citing Wheeler v. U.S., 470 A.2d 761, 769 (D.C. 1983)) .
Page 142
66 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.400 Instruction 2.400 WHERE THE INDICTMENT CHARGES INCONSISTENT COUNTS
[Name of defendant] has been charged with [insert names of inconsistent offenses]. You may find him/her not guilty of both charges but you may not find him/her guilty of both charges. You should consider first whether [name of defendant] is guilty of [offense with more elements or greater penalty]. If you find him/her guilty, do not go on to [other offense]. If you find him/her not guilty, go on to consider [other offense]. And if you are unable to reach a verdict on [offense with more elements or greater penalty], you are allowed to consider [other offense].____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition or the 2010 release. In Milanovich v. U.S., 365 U.S. 551, 555 (1961) , the Supreme Court made clear that a jury should be instructed that it cannot find a defendant guilty of two inconsistent offenses. As a result, this instruction should be given where statutory or case authority supports the principle that the offenses as charged in the indictment are legally distinct and inconsistent with each other as a matter of law. The District of Columbia Court of Appeals had previously identified a number of inconsistent offenses. See, e.g., Byrd v. U.S., 598 A.2d 386, 392 n.13 (D.C. 1991) (en banc) (theft and receiving stolen property are alternate offenses; RSP is not a "lesser included offense of theft"). However, the Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189) and the emergency versions of this Act that went into effect initially on June 29, 2009 (Act 18-129), specifically provide:
(a) A person may be convicted of any combination of theft, identity theft, fraud, credit card fraud, unauthorized use of a vehicle, commercial piracy, and receiving stolen property for the same act or
course of conduct; provided, that no person shall be consecutively sentenced for any such combination or combinations that arise from the same act or course of conduct. (b) Convictions arising out of the same act or course of conduct shall be considered as one conviction for purposes of any application of repeat offender sentencing provisions. D.C. Official Code 22-3203. Because of this statutory change, many of the offenses that had previously been considered inconsistent counts are no longer "inconsistent." A defendant may now be convicted of these offenses in different counts but may not be sentenced consecutively for such counts if they "arise from the same act or course of conduct." This instruction, however, remains relevant for inconsistent offenses that are not included in this statute. See, e.g., U.S. v. Lemonakis, 485 F.2d 941, 966, 158 U.S. App. D.C. 162, 187 (1973) (convictions for burglary and grand larceny were mutually exclusive of conviction for receiving and bringing into the District of Columbia stolen property; vacating burglary and larceny convictions which carried longer sentences cured any prejudice which resulted from the failure to properly instruct); Irby v. U.S., 342 A.2d 33, 39 (D.C. 1975) (robbery and receiving stolen property are legally inconsistent offenses). The second paragraph of this instruction parallels instructions on lesser included offenses and has the same effect as instructing the jury that it cannot convict the defendant on both charges because the jury is told that if they find the defendant guilty of one, they should not consider the other. However, it omits the "acquittal first" language, stating instead that the jury may go on to the less serious offense if it cannot reach a verdict on the more serious. The remedy in Milanovich for permitting the jury to consider inconsistent offenses was to reverse both convictions. This decision has been effectively overruled by U.S. v. Gaddis, 424 U.S. 544 (1976) , which requires the court only to vacate the offense that the jury should not have considered. U.S. v. Brown, 996 F.2d 1049, 1055-56 (10th Cir. 1993) (citing cases that have so held).
Page 144
67 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.401 Instruction 2.401 WHERE JURY IS TO BE CHARGED ON A LESSER INCLUDED OFFENSE OF A COUNT IN AN INDICTMENT
A. LESSER INCLUDED OFFENSE--GENERAL INSTRUCTION [Name of defendant] is charged with [name greater offense]. I am going to instruct you on this charge and also on the lesser included offense[s] of [name first lesser included offense] [and name second lesser included offense, if any]. After I give you the elements of these crimes, I will tell you in what order you should consider them. [Give elements of greater and lesser included offenses.] Order of Considering the Charges
Now I am going to instruct you as to the order in which you should consider these offenses. You should consider first whether [name of defendant] is guilty of [name greater offense]. If you find the defendant guilty, do not go on to the other [two] charge[s]. If you find [name of defendant] not guilty, go on to consider [name first lesser included offense]. [And if, after making all reasonable efforts to reach a verdict on [name greater offense], you are not able to do so, you are allowed to consider [name first lesser included offense].] If you find [name of defendant] guilty of [name first lesser included offense]] do not go on to [name second lesser included offense]. If you find [name of defendant] not guilty of [name first lesser included offense], go on to consider [name second lesser included offense]. [And if, after making all reasonable efforts to reach a verdict, you are not able to do so, you are allowed to consider [name second lesser included offense]]. This order will be reflected in the verdict form that I will be giving you. B. LESSER INCLUDED OFFENSE--VALUE OF PROPERTY [Name of defendant] is charged with [name greater offense]. I am going to instruct you on this charge and also on the
lesser included offense of [[ ]]. After I give you the elements of these crimes, I will tell you in what order you should consider them. [Give elements of greater and lesser included offenses.] As you probably have noticed, the offense of [name greater offense] has the same elements as the offense of [name lesser included offense], except that [greater offense] requires proof that the property had a value of $[amount] or more, while [lesser offense] does not require this proof. Rather, [lesser offense] requires proof that the property had some value. Order of Considering the Charges
You should consider first whether [name of defendant] is guilty of [name greater offense]. If you find [name of defendant] guilty, do not go on to the other [two] charge[s]. If you find [name of defendant] not guilty, go on to consider [name lesser included offense]. [And if, after making all reasonable efforts to reach a verdict, you are not able to do so, you are allowed to consider [name lesser included offense]]. This order will be reflected in the verdict form that I will be giving you. ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction is drafted for use where a lesser included offense is not charged as a separate count; however, with slight modification, the instruction can be used where the lesser offense is charged in a different count of an indictment. This instruction is drafted so that the appropriate greater offense and lesser included offense may be inserted and given to the jury in the course of the instruction. Although Part A of the instruction can accommodate one greater offense and two lesser included offenses, the instruction can appropriately be tailored to meet the specific needs of an individual case. The instruction explains the order in which the jury is to consider the greater and lesser offenses. In cases where the lesser included offense is almost the same as the greater, with the exception of one or two elements, judges may wish to point out the differences in the elements to assist the jury. The court may wish to highlight the difference in the elements. For example, the only difference between distribution of cocaine and distribution of cocaine in a drug free zone is that the greater offense includes the element of "in a drug free zone" that the lesser offense does not. Accord Belton v. U.S., 382 F.2d 150, 153, 127 U.S. App. D.C. 201, 204 (1967) (on request, jury instructions should make clear the difference between first and second degrees of murder). A bracketed instruction on "reasonable efforts" is included for use when it is requested by the defendant. Under the holding of ( Lorenzo) Wright v. U.S., 588 A.2d 260, 262 (D.C. 1991) , the defendant is entitled, upon timely request, to displace this "acquittal first" instruction with a "reasonable efforts" instruction directing the jury that it is allowed to move to the lesser charge if, after making reasonable efforts to resolve the greater charge, it is unable to reach a unanimous verdict for either guilt or acquittal. Neither the "acquittal first" nor the "reasonable efforts" instructions is wrong as a matter of law, ( Lorenzo) Wright, 588 A.2d at 262 , so the trial court may, in the absence of an objection by the defendant, use the "acquittal first" instruction. See Jones v. U.S., 620 A.2d 249, 252 (D.C. 1993)
("reasonable efforts" instruction is not mandatory because tactical "decision as to which instruction is preferable must be left to the defendant"). Although it should be given only if the defendant elects the "reasonable efforts" langugage, "[i]f the jury deadlocks on the greater charge ... the trial judge has discretion to give a "reasonable efforts" instruction over the defendant's objection in lieu of granting a mistrial if it concludes that repeating an "acquittal first" instruction would be unduly coercive." Wilson v. U.S., 922 A.2d 1192, 1195 (D.C. 2007) , citing Powell v. U.S., 684 A.2d 373, 381 (D.C. 1996) : Taylor v. U.S., 866 A.2d 817 (D.C. 2005) ; Parker v. U.S., 601 A.2d 45, 47 (D.C. 1991) . Whether one offense is a lesser included offense of another is determined solely by analyzing the elements of the offenses. One offense is necessarily included within another offense only when the elements of the lesser included offense form a subset of the charged offense. See Schmuck v. U.S., 489 U.S. 705, 716 (1989) ; Lee v. U.S., 668 A.2d 822, 825 (D.C. 1995) ; see also Moorer v. U.S., 868 A.2d 137, 140 (D.C. 2005) ("The standard for determining whether one criminal offense is included within another is well settled; we apply the so-called 'elements' test."). "Under the elements test, one offense is included within another if (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge." Moorer, 868 A.2d at 140 . (internal quotation omitted). When counsel asks for a lesser included offense instruction, it should be freely given if there is any evidence, however weak, to support the lesser offense but not the greater one. See Nelson v. U.S., 601 A.2d 582, 594 (D.C. 1991) ; Wilson v. U.S., 711 A.2d 75, 77 (D.C. 1998) . ( Wallace) Wright, 505 A.2d 470, 472 (1986) ; Banks v. U.S., 902 A.2d 817, 820 (D.C. 2006) ("The weight of the evidence supporting the instruction is immaterial; as long as the jury could rationally convict on the lesser-included offense after crediting the evidence, the court must give the instruction no matter how inclined it might to discount that evidence."). A lesser included offense instruction is proper if proof of the greater offense will require the jury to find a disputed fact that need not be found to prove the lesser charge. Rease v. U.S., 403 A.2d 322, 328-29 (D.C. 1979) . Even if there is no dispute as to the facts tending to prove the element unique to the greater offense, the court should appraise the testimony to determine if the lesser included offense is fairly inferable from the evidence. Id. at 329 . See also Broadie v. U.S., 925 A.2d 605, 616 (D.C. 2007) ("[T]he requirement of a sufficient evidentiary basis can be met by a showing that (1) there is conflicting testimony on the factual issue or (2) the lesser-included offense is inferable from the evidence, including a reconstruction of the events gained by accepting all or some of the testimony of some or all of the witnesses."); Nelson, 601 A.2d at 594 (trial court erred in failing to make this appraisal). A defendant is entitled to a lesser included offense instruction if the jury, under any theory of the evidence, might find an absence of guilt as to the greater offense but guilt of the lesser offense, even upon a theory inconsistent with the defendant's defense. Price v. U.S., 602 A.2d 641, 645 (D.C. 1992) ; Mitchell, 595 A.2d 1010, 1011-12 (D.C. 1991) . The defendant is not entitled to such an instruction, however, when there is no evidence to support the lesser included offense theory or when the jury would have to engage in a bizarre reconstruction of the facts of the case to convict on the lesser offense. See Broadie, 925 A.2d at 617 ; Banks, 902 A.2d at 820 ("the chance of a 'bizarre' or speculative verdict affords the defendant no entitlement to the instruction"). A lesser included offense instruction is not required where the defendant's testimony is wholly exculpatory unless the evidence presented by the prosecution provides a rational basis for finding the defendant guilty of a lesser included offense. U.S. v. Thornton, 746 F.2d 39, 47, 241 U.S. App. D.C. 46, 54 (1984) ; U.S. v. Sinclair, 444 F.2d 888, 890, 144 U.S. App. D.C. 13, 15 (1971) . Indeed, it is erroneous to submit a lesser included offense to a jury when there is no dispute as to the fact that distinguishes the greater from the lesser offense merely because the lesser offense is charged as a separate count in an indictment. Lightfoot v. U.S., 378 A.2d 670, 673 (D.C. 1977) .
Typically, a defendant must request a lesser included offense instruction in order to be entitled to it. U.S. v. Whitaker, 447 F.2d 314, 317, 144 U.S. App. D.C. 344, 347 (D.C. Cir. 1971) . However, regardless of whether counsel fails to request or objects to a lesser included offense instruction, instruction should be given if the evidence clearly supports it. Glymph v. U.S., 490 A.2d 1157, 1160 (D.C. 1985) . "[T]he court may give a lesser included instruction if requested to do so or if the prosecutor or defense counsel 'affirmatively agrees' to one when the court suggests it." Hawthorne v. U.S., 829 A.2d 948, 952 (D.C. 2003) (emphasis in original). Where a jury is instructed on a lesser included offense but returns a general verdict of guilty, the verdict is fatally ambiguous and the case must be remanded for a new trial. Glenn v. U.S., 420 F.2d 1323, 1324, 137 U.S. App. D.C. 120, 121 (D.C. Cir. 1969) . Superior Court For Superior Court, see also Alfaro v. U.S., 859 A.2d 149, 156 (D.C. 2004) (assault is not a lesser-included offense of attempted second-degree cruelty to children); Bradley v. U.S., 856 A.2d 1157, 1161-62 (D.C. 2004) (second-degree cruelty to children and simple assault do not merge because each requires an element of proof that the other does not); Moore v. U.S., 599 A.2d 1381, 1383 (D.C. 1991) (assault is lesser included offense of mayhem); Coreas v. U.S., 585 A.2d 1376, 1380 (D.C. 1991) (voluntary manslaughter while armed is lesser included offense of second degree murder while armed); Norris v. U.S., 585 A.2d 1372, 1374 (D.C. 1991) (assault with a dangerous weapon is lesser included offense of armed robbery); Comber v. U.S., 584 A.2d 26, 53 (D.C. 1990) (involuntary manslaughter is not lesser included offense of voluntary manslaughter); Simmons v. U.S., 554 A.2d 1167, 1170 (D.C. 1989) (taking property without right is lesser included offense of robbery); Wynn v. U.S., 538 A.2d 1139, 1146 (D.C. 1988) (assault with a deadly weapon is a lesser included offense of mayhem while armed); Price v. U.S., 531 A.2d 984, 989 n.7 (D.C. 1987) (second degree murder while armed and attempted robbery while armed are lesser included offenses of felony murder); Brake v. U.S., 494 A.2d 646, 650 (D.C. 1985) (assault with intent to commit sodomy not necessarily lesser included offense of sodomy); Logan v. U.S., 460 A.2d 34, 37 (D.C. 1983) (malicious destruction of property not lesser included offense of arson); Turner v. U.S., 459 A.2d 1054, 1057 (D.C. 1983) (second degree murder may constitute lesser included offense of first degree premeditated murder and/or first degree felony murder); Rease v. U.S., 403 A.2d 322, 328 (D.C. 1979) (larceny is lesser included offense of robbery and armed robbery); Hall v. U.S., 400 A.2d 1063, 1066 (D.C. 1979) (assault is lesser included offense of taking indecent liberties with a child); Jamison v. U.S., 373 A.2d 594, 596 (D.C. 1977) (manslaughter not a lesser included offense of second degree murder when there is no evidentiary predicate for a finding of adequate legal provocation); Davis v. U.S., 367 A.2d 1254, 1270 (D.C. 1976) (assault with a dangerous weapon occurred after armed robbery completed and, therefore, not a lesser included offense); Hall v. U.S., 343 A.2d 35, 38-39 (D.C. 1975) (assault not necessarily lesser included offense of obstructing justice even where obstruction took the form of an assault); U.S. v. Alston, 483 F.2d 1264, 1266, 157 U.S. App. D.C. 261, 263 (1973) (assault with a dangerous weapon is lesser included offense of assault with intent to commit armed robbery). See also D.C. Code 50-2203.02 (2001) (negligent homicide always a lesser included offense of manslaughter by automobile). U.S. District Court For federal court, see also U.S. v. Pumphrey, 831 F.2d 307, 308, 265 U.S. App. D.C. 306 (1987) (possession of PCP with an intent to distribute is a lesser included offense of possession with an intent to distribute 500 grams or more of PCP); U.S. v. Liddy, 542 F.2d 76, 82, 177 U.S. App. D.C. 1, 7 (1976) (general conspiracy not lesser included offense of conspiracy to violate civil rights); U.S. v. Edmonds, 524 F.2d 62, 63, 173 U.S. App. D.C. 241, 242 n.7 (1975) (assault with a dangerous weapon and rape are lesser included offenses of armed rape); U.S. v. Brewster, 506 F.2d 62, 72, 165 U.S. App. D.C. 1, 11 (1974) (receipt by public official of illegal gratuity is lesser included offense of receipt of bribe for being
influenced in official act); U.S. v. Thornton, 498 F.2d 749, 752-53, 162 U.S. App. D.C. 207, 210-11 (1974) (assault with intent to rape may constitute a lesser included offense of rape although rape does not require specific intent). See generally Fed. R. Crim. P. 31(c) and Super. Ct. Crim. P. 31(c). Cross references: No. 2.400, Where Indictment Charges Inconsistent Counts; No. 2.402, Multiple Counts--One Defendant; No. 2.404, Multiple Defendants--Multiple Counts; No. 2.407, Verdict Form Explanation; Nos. 4.200 et seq.--Homicide.
Page 149
68 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.402 Instruction 2.402 MULTIPLE COUNTS--ONE DEFENDANT
Each count of the indictment charges a separate offense. You should consider each offense, and the evidence which applies to it, separately, and you should return separate verdicts as to each count [unless I instruct you to do otherwise]. The fact that you may find the defendant guilty or not guilty on any one count of the indictment should not influence your verdict with respect to any other count of the indictment. [At any time during your deliberations you may return your verdict of guilty or not guilty with respect to any count.]____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The bracketed language is to be given when it is not appropriate for the jury to return separate verdicts as to each count, as in the instance of an indictment charging lesser included offenses. See generally Hollingsworth v. U.S., 531 A.2d 973, 983 (D.C. 1987) (citing with approval the giving of former Instruction 2.50 as part of an effort to keep two offenses separate and distinct for the jury); Cox v. U.S., 498 A.2d 231, 237 (D.C. 1985) (same); Fed. R. Crim. P. 31(b); Super. Ct. Crim. R. 31(b); 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 12.12 (5th ed. 2000). Cross reference: No. 2.404, Multiple Defendants--Multiple Counts.
Page 150
69 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.403 Instruction 2.403 MULTIPLE DEFENDANTS--ONE COUNT
You should give separate consideration, and render separate verdicts, with respect to each defendant. Each defendant is entitled to have the issue of his/her guilt of the crime for which s/he is on trial determined from his/her own conduct and from the evidence which applies to him/her, as if s/he were being tried alone. The fact that you may find one defendant guilty or not guilty should not influence your verdict as to any other defendant. At any time during your deliberations you may return your verdict of guilty or not guilty with respect to any defendant, after which you may resume your deliberations as to [the] [any] remaining defendant[s].____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. See generally Taylor v. U.S., 603 A.2d 451, 457 (D.C. 1992) (only proper for trial court to instruct jury that guilt or innocence of either defendant on any of the charges should not control or influence their verdict as to the other defendant when charges are substantially similar); U.S. v. Robinson, 475 F.2d 376, 383, 154 U.S. App. D.C. 265, 272 (1973) (where several defendants are charged with several offenses, jury should be instructed of the need to apply separately the elements of aiding and abetting to each defendant for each offense); U.S. v. Hurt, 476 F.2d 1164, 1169, 155 U.S. App. D.C. 217, 222 (1973) (instruction appropriate when defendants put forth irreconciliable defenses); U.S. v. McCall, 460 F.2d 952, 958, 148 U.S. App. D.C. 444, 450 (1972) (other instructions about presumption of guilt of one defendant are not unfairly prejudicial); Blumenthal v. U.S., 332 U.S. 539, 560 (1947) ; Fed. R. Crim. P. 31(b); Super. Ct. Crim. R. 31(b).
Cross references: No. 1.203, Where Charges Are Dismissed Midtrial; No. 2.308, Evidence Admitted Against One Defendant Only; No. 2.404, Multiple Defendants--Multiple Counts.
Page 152
70 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.404 Instruction 2.404 MULTIPLE DEFENDANTS--MULTIPLE COUNTS
Each count of the indictment charges a separate offense. Moreover, each defendant is entitled to have the issue of his/her guilt as to each of the crimes for which s/he is on trial determined from his/her own conduct and from the evidence that applies to him/her as if s/he were being tried alone. You should, therefore, consider separately each offense, and the evidence which applies to it, and you should return separate verdicts as to each count of the indictment, as well as to each defendant [unless I specifically instruct you to do otherwise]. The fact that you may find any one defendant guilty or not guilty on any one count of the indictment should not influence your verdict with respect to any other count of the indictment for that defendant. Nor should it influence your verdict with respect to any other defendant as to that count or any other count in the indictment. Thus, you may find any one [or more] of the defendants guilty or not guilty on any one or more counts of the indictment, and you may return different verdicts as to different defendants and as to different counts. At any time during your deliberations you may return your verdict of guilty or not guilty with respect to any defendant on any count.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. See generally Blumenthal v. U.S., 332 U.S. 539, 560 (1947) ; Lewis v. U.S., 466 A.2d 1234, 1239 (D.C. 1983) (approved use of verdict form in multi-defendant case to ensure accuracy of partial verdict(s)); Thompson v. U.S., 354 A.2d 848, 850 (D.C. 1976) (citing former Instruction 2.52 without comment); U.S. v. Hurt, 476 F.2d 1164, 1169, 155 U.S. App. D.C. 217, 222 (1973) ; Fed. R. Crim. P. 31(b); Super. Ct. Cr. R. 31(b). See 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 12.13 (5th ed. 2000).
Cross references: No. 1.203, Where Charges Are Dismissed Mid-trial; No. 2.308, Evidence Admitted Against One Defendant Only.
Page 154
71 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.405 Instruction 2.405 UNANIMITY--GENERAL
A verdict must represent the considered judgment of each juror, and in order to return a verdict, each juror must agree on the verdict. In other words, your verdict[s] must be unanimous.____________________________________ Comment: The 2008 release added a separate instruction Instruction 2.406 (formerly Instruction 2.72A) to address special unanimity issues. This instruction addresses the general unanimity requirement. See U.S. Const. Amend. VI; Andres v. U.S., 333 U.S. 740, 748 (1948) ; Owens v. U.S., 497 A.2d 1086, 1092 (D.C. 1985) ; Fed. R. Crim. P. 31 (a); Super. Ct. Crim. R. 31 (a).
Page 155
72 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.406 Instruction 2.406 UNANIMITY--SPECIAL
[Name of defendant] has been charged with one count of [name of offense]. You have heard evidence of more than one act or incident related to this count. [Describe the separate acts/incidents.] You may find [name of defendant] guilty on this count if the government proves beyond a reasonable doubt that [name of defendant] committed either of these acts/incidents. However, in order to return a guilty verdict on this count, you must all agree that [name of defendant] committed [describe first act/incident] or you must all agree that [name of defendant] committed [describe second act/incident] [repeat if other alternative acts/incidents].____________________________________ Comment: This instruction should be given whenever a count is duplicative and includes more than one act or incident which could be charged as separate counts. If the government has not elected upon which charge in the count it intends to rely, then this limiting instruction is necessary to protect the defendant's Sixth Amendment right to a unanimous jury. See Roberts v. U.S., 752 A.2d 583, 588 n.13 (D.C. 2000) "The proper remedy [for a duplicative count] is to require the government to elect upon which charge contained in the count it will rely ... It is held also that the risk of a nonunanimous verdict inherent in a [duplicative] count may be cured if the court gives a limiting instruction that requires the jury to find unanimously that the defendant was guilty with respect to at least one distinct act."). See also U.S. v. Ramirez, 273 F.3d 903 (9th Cir. 2001) (conviction reversed when neither election nor special unanimity instruction was employed to remedy duplicative indictment). The Committee uniformly agrees that, beyond this situation, the law in this area can be quite complicated, and within the Committee itself there are widely differing views on when a special unanimity instruction is needed. The Committee recommends that parties research the law as pertains to the statutes and factual crcumstances of their particular case in anticipation of this issue. A non-exhaustive list of pertinent cases includes: Schad v. Arizona, 501 U.S. 624 (1991) ; Richardson v. U.S., 526 U.S. 813 (1999) ; Scarborough v. U.S., 522 A.2d 869 (D.C. 1987) (en banc); ( David) Williams
v. U.S., 981 A.2d 1224 (D.C. 2009) ; Washington v. U.S., 760 A.2d 187 (D.C. 2000) ; and U.S. v. Hurt, 527 F.3d 1347, 381 U.S. App. D.C. 259 (2008) .
Page 157
73 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions D. Aspects of Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.407 Instruction 2.407 VERDICT FORM EXPLANATION
You will be provided with a Verdict Form for use when you have concluded your deliberations. The form is not evidence in this case, and nothing in it should be taken to suggest or convey any opinion by me as to what the verdict should be. Nothing in the form replaces the instructions of law I have already given you, and nothing in it replaces or modifies the instructions about the elements which the government must prove beyond a reasonable doubt. The form is meant only to assist you in recording your verdict.____________________________________ Comment: The 2008 release added this instruction. The use of verdict forms has been approved in this jurisdiction. See Carpenter v. U.S., 475 A.2d 369 (D.C. 1984) ("[t]he trial court may use any reasonable verdict form"). However, it is recommended that a verdict form be limited to listing the counts and to asking the jury whether the defendant is guilty or not guilty on each count and, if applicable, whether each aggravating circumstance or enhancement charged in the indictment has been proven. When a verdict form is used, the jury should also be instructed that the verdict form is not evidence but rather is provided to assist the jury. The court should also fully explain the use of the form in an instruction tailored to the charges submitted to the jury, and it should caution the jury that nothing in the verdict form is intended to suggest or convey any opinion by the court regarding what the verdict should be. See Cundiff v. U.S., 501 F.2d 188 (8th Cir. 1974) ; U.S. v. Swan, 396 F.2d 883 (2d Cir. 1968) . Finally, the jury should be told to have the foreperson sign and date the verdict form and return it to the court once a decision has been reached. Verdict forms are especially useful in cases involving multi-count indictments or multiple defendants. See Lewis v. U.S., 466 A.2d 1234, 1239 (D.C. 1983) (no error for court to provide verdict forms after jury's original verdict suggested that jury may have confused the co-defendants). Where there are multiple counts, there must be separate verdicts by the jury as to each defendant on each count. However, separate verdict forms for each defendant are not necessary when there are multiple defendants, see
Carpenter v. U.S., 475 A.2d 369 (D.C. 1984) , although the court may decide that separate verdict forms for each defendant would be desirable. A special verdict form may also be necessary whenever the jury is required to find a fact that may increase the possible punishment. See Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt."); see also U.S. v. Barrett, 870 F.2d 953, 955 (3d Cir. 1989) (use of special interrogatories permitted to assist in sentencing); U.S. v. Dennis, 786 F.2d 1029, 1041 (11th Cir. 1986) (special verdicts commonly approved where "necessary to determine the punishment that should be imposed"). There are particular issues about the use of special verdict forms in bifurcated trials where insanity is raised. Compare U.S. v. Taylor, 510 F.2d 1283, 1289-90, 167 U.S. App. D.C. 62, 68-69 (1975) (verdict form in bifurcated trial was erroneous where, before reaching verdict as to insanity issue, form inquired whether jury adhered to its verdict in guilt phase of trial) with Harman v. U.S., 351 A.2d 504, 505 (D.C. 1976) (use of special verdict form did not confuse jury or prejudice the defendant where trial court required jury to "make a separate determination of the defendant's sanity on each count for which he had been found guilty"). Notations on the jury form may require the trial court to take appropriate corrective action. For example, in Headspeth v. U.S., 910 A.2d 311, 319 (D.C. 2006) , the jury filled out an initial verdict form which contained a written notation that the defendant was only "technically guilty" and that "several jurors did not believe he had violated the 'spirit' of the law." The Court of Appeals concluded that the trial court committed plain error, inter alia, by not immediately sending the jury back for further deliberations, with instructions that it was not to consider punishment in determining guilt or innocence, when it saw the notations on the initial verdict form. Id. at 324-25 . For further discussion of this issue, see 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 20.01 (5th ed. 2000) (suggested instructions concerning use of verdict form); Wright, 3 Federal Practice and Procedure, Criminal 512 (3d ed. 2004). Cross references: No. 2.100, Furnishing the Jury with a Copy of the Instructions; No. 2.400, Where the Indictment Charges Inconsistent Counts; No. 2.401, Where Jury Is to be Charged on a Lesser Included Offense of a Count in an Indictment; No. 2.405, Unanimity--General; No. 2.406, Unanimity--Special.
Page 159
74 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.500 Instruction 2.500 REDACTED DOCUMENTS AND TAPES
During the course of this trial, a number of exhibits were admitted in evidence. Sometimes only those parts of an exhibit that are relevant to your deliberations were admitted. Where this has occurred, I have required the irrelevant parts of the statement to be blacked out or deleted. Thus, as you examine the exhibits, and you see or hear a statement where there appear to be omissions, you should consider only the portions that were admitted. You should not guess as to what has been taken out.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction applies in those cases in which a document or tape recording has been redacted, and the apparent redaction will be obvious to the jurors when they examine or listen to the exhibit. This instruction is designed to alleviate the possible danger that the jurors will try to "fill in" the blanks.
Page 160
75 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.501 Instruction 2.501 EXHIBITS DURING DELIBERATIONS
I will be sending into the jury room with you the exhibits that have been admitted into evidence [except for the [weapon(s)] [ammunition] [unsealed drugs] [other contraband] [recordings only partially admitted]]. You may examine any or all of them as you consider your verdict(s). Please keep in mind that exhibits that were only marked for identification but were not admitted into evidence will not be given to you to examine or consider in reaching your verdict. [If you wish to examine the [weapon(s)] [ammunition] [unsealed drugs] [other contraband], please notify the clerk by a written note, and the marshal will bring them to you. For security purposes, the marshal will remain in the jury room while each of you has the opportunity to examine this evidence. You should not discuss the evidence or otherwise discuss the case among yourselves while the marshal is present in the jury room. You may ask to examine this evidence as often as you find it necessary.] [If you wish to [see] [hear] those portions of [describe recordings] which I have admitted into evidence, please notify the clerk by a written note and we will assemble in the courtroom with the appropriate equipment.]____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. Those courts that automatically send exhibits into the jury room during deliberations should give the first paragraph. In those circumstances, if certain exhibits have been admitted that are not automatically sent into the jury room--e.g., weapons or drugs--then the appropriate bracketed language in the first paragraph as well as the second paragraph should be given. The third bracketed paragraph should be given when the court has admitted only portions of a tape that has not been physically redacted.
For those courts who do not wish to send the exhibits to the jury at the outset of their deliberations, the following instruction may be given:
I am not sending the exhibits that have been received in evidence with you as you start your deliberations. However, you are entitled to see any or all of these exhibits as you deliberate. I suggest that you begin your deliberations and then, if it would be helpful to you, you may ask for any or all of the exhibits that have been received in evidence simply by notifying the clerk by a written note. It is recommended that before the exhibits go back to the jury, both parties should be given an opportunity to carefully examine what exhibits will be given to the jury. There is no absolute requirement that the defendant and counsel be present when exhibits are given to the jury, but if a portion of an exhibit is possibly prejudicial and must be kept from the jury's view, counsel should be given the opportunity to make sure this is done. If the defendant suffers prejudice as a result of the erroneous transmittal of unadmitted exhibits, then reversal of the defendant's conviction is required. See, e.g., Quarles v. U.S., 349 A.2d 690, 691-93 (D.C. 1975) (reversal was not required when deputy clerk erroneously transmitted to the jury a photograph not entered into evidence because the subject matter of the photo could not have prejudiced their deliberation); Harriss v. U.S., 489 A.2d 464 (D.C. 1985) (distinguishing Quarles); see also U.S. v. Treadwell, 760 F.2d 327, 339-42, 245 U.S. App. D.C. 257 (1985) (it is harmless error when a document erroneously submitted to the jury is merely cumulative of other properly admitted evidence); U.S. v. Fulcher, 626 F.2d 985, 988-89, 200 U.S. App. D.C. 121 (1980) (when jury requested certain exhibits, reversal was not required without a showing of prejudice even though courtroom clerk committed error when she interpreted the jury's request and supplied the exhibits without notifying counsel); Dallago v. U.S., 427 F.2d 546, 138 U.S. App. D.C. 276 (1969) . See generally Fuller v. U.S., 873 A.2d 1108, 1118 (D.C. 2005) ("Even though in this case, ... the transcript had been admitted into evidence, we do not think that the admissibility of the transcript as evidence translates to its ready submission to the jury. Therefore, although no blanket rule prohibits submitting to the jury for its deliberation the transcript of a defendant's testimony that has been admitted as evidence, the attendant risks require that it not be done reflexively and as a matter of course. A trial judge should first consider whether the jurors have a particular need for the transcript, and if so, give a special instruction cautioning against unduly emphasizing the transcript over other evidence. ... In a case where the transcript is of the defendant's testimony, the judge should further caution the jury, if requested by the defense, against making impermissible inferences contrasting the defendant's decision to testify at an earlier trial and his choice not to testify at the second trial."); Williams v. U.S., 665 A.2d 928 (D.C. 1995) (upheld denial of motion for new trial based on the failure to send into the jury room during deliberations certain photographs introduced by the government; no requirement that the jury have all the physical evidence in the jury room throughout its deliberations); U.S. v. Hawkins, 595 F.2d 751, 753, 193 U.S. App. D.C. 366 (1978) (there was no impropriety when, during deliberations, the jurors experimented with binoculars that had been admitted into evidence to test their strength).
Page 162
76 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.502 Instruction 2.502 SELECTION OF FOREPERSON
When you return to the jury room, you should first select a foreperson to preside over your deliberations and to be your spokesperson here in court. There are no specific rules regarding how you should select a foreperson. That is up to you. However, as you go about the task, be mindful of your mission--to reach a fair and just verdict based on the evidence. Consider selecting a foreperson who will be able to facilitate your discussions, who can help you organize the evidence, who will encourage civility and mutual respect among all of you, who will invite each juror to speak up regarding his or her views about the evidence, and who will promote a full and fair consideration of that evidence.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition.
Page 163
77 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.505 Instruction 2.505 POSSIBLE PUNISHMENT NOT RELEVANT
The question of possible punishment of the defendant in the event a conviction is not a concern of yours and should not enter into or influence your deliberations in any way. The duty of imposing sentence in the event of a conviction rests exclusively with me. Your verdict should be based solely on the evidence in this case, and you should not consider the matter of punishment at all.____________________________________ Comment: The 2008 release modified this instruction slightly to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. See Powell v. U.S., 485 A.2d 596, 600 (D.C. 1984) ; Anderson v. U.S., 326 A.2d 807, 811 n.6 (D.C. 1974) ; Alston v. U.S., 383 A.2d 307, 310, 314-15 (D.C. 1978) ; Rogers v. U.S., 422 U.S. 35 (1975) ; U.S. v. Patrick, 494 F.2d 1150, 1153-55, 161 U.S. App. D.C. 231 (1974) (reversible error for court to inform jury that it could recommend psychiatric treatment along with a verdict of second degree murder); see also Headspeth v. U.S., 910 A.2d 311, 318-19 (D.C. 2006) (reversible error where trial court failed to correct jury's perception that jury's sentencing reccomendation would be binding on the court). Cross reference: No. 9.403, Effect of a Finding of Not Guilty by Reason of Insanity.
Page 164
78 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.506 Instruction 2.506 ROLE OF INTERPRETER FOR JUROR--FINAL INSTRUCTION
All jurors must be able to fully participate in deliberations. Juror in seat number [insert number] has been assisted by a sign-language interpreter. The sign-language interpreter will be with you during your deliberations. You may not discuss the case with the sign-language interpreter. The sign-language interpreter is not a member of the jury and is not to participate in the deliberations. His/Her sole role is to help you communicate. In order to allow the sign-language interpreter to properly assist juror in seat number [insert number], jurors should not talk at the same time and should not have side conversations. Jurors should speak directly to juror in seat number [insert number], not to the sign-language interpreter. If you can communicate in both English and sign language, you must only use English to communicate in the jury room so the rest of the jury is not excluded from any conversation. You must also rely solely on the court-appointed sign-language interpreter. The interpreter is the only person permitted to interpret conversations inside the jury room. The interpreter will keep strictly confidential all matters discussed during your deliberations.____________________________________ Comment: This is a new instruction in the Fifth Edition. A juror's use of the services of an interpreter has not been addressed previously in the jury instructions. Cross references: No. 1.109, Role of Interpreter for Juror--Preliminary Instruction; No. 1.110, Witness's or Defendant's Use of Interpreter--Preliminary Instruction; No. 1.204, Witness's or Defendant's Use of Interpreter--Instruction Before Witness or Defendant Testifies; No. 2.507, Witness's or Defendant's Use of Interpreter--Final Instruction.
Page 165
79 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.507 Instruction 2.507 WITNESS'S OR DEFENDANT'S USE OF INTERPRETER--FINAL INSTRUCTION
A. FOR USE WHEN DEFENDANT DID NOT TESTIFY AND NO OTHER WITNESS USED AN INTERPRETER [Name of defendant] used the services of an interpreter in this trial. As I have previously instructed you, you should not be biased for or against [name of defendant] for using an interpreter. Do not permit that fact to influence you in any way. [The fact that the court has provided an interpreter to [name of defendant] does not mean that the court has made a ruling on the extent of his/her ability to speak or understand the English language. Use of an interpreter should not be considered evidence in this case.] B. FOR USE WHEN A WITNESS OR DEFENDANT TESTIFIED WITH THE ASSISTANCE OF AN INTERPRETER You have heard testimony from [name of witness] [name of defendant], who communicated through an interpreter and [name of defendant] used the services of an interpreter in this trial.] You are to consider only the evidence provided through the official court interpreters. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English interpretation. You must disregard any different meaning. [During the testimony there was a question as to the accuracy of the English interpretation and steps were taken to resolve any discrepancies. I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter.] As I have previously instructed you, you should not be biased for or against anyone who uses an interpreter. Do not permit the fact that [name of witness] [name of defendant] is using the services of an interpreter to influence you in any way.
You should not consider the mere fact that [name of witness] [name of defendant] has been provided an interpreter in evaluating his/her credibility. You must evaluate interpreted testimony as you would any other testimony. That is, you must not give interpreted testimony any greater or lesser weight than you would if the witness had spoken English. If you observed that the witness nodded his/her head during interpretation, you should consider that this did not necessarily indicate agreement or an affirmative answer but may have only indicated that the witness was following the translation. [As I previously instructed you, American Sign Language uses body language and certain facial expressions to convey information in ways that might be misunderstood by those who do not sign or understand this language. They are integral parts of communicating in American Sign Language, similar to the way that vocal tones and inflections give meaning to spoken words. You should be cautious about assuming a particular meaning from observing the body language or facial expressions of the witness when s/he was signing.] [The fact that the court has provided an interpreter to [name of witness] [name of defendant] does not mean that the court has made a ruling on the extent of his/her ability to speak or understand the English language. Use of an interpreter should not be considered evidence in this case.] ____________________________________ Comment: This is a new instruction in the Fifth Edition. The issue of a witness's or defendant's use of an interpreter has not been addressed previously in the Jury Instructions. The bracketed final paragraph of each part of this instruction should only be given when the ability of the witness or defendant to speak or understand English is at issue in the case. The right to the services of an interpreter in the District of Columbia is governed by the "Interpreters for Hearing-Impaired and Non-English Speaking Persons Act of 1987." D.C. Official Code 2-1901 et seq. (2001). See Rivera v. U.S., 941 A.2d 434, 442 (D.C. 2008) (citing Ramirez v. U.S., 877 A.2d 1040, 1042 n. 2 (D.C. 2005)) . Under federal statute, interpreters are also provided to those who speak only or primarily a language other than English or who are hearing impaired when parties are brought before the court in actions instituted by the United States and the court assesses the party to need such assistance. 28 U.S.C. 1827(d)(1). When a case involves a witness or defendant who will be communicating through an interpreter, it may be appropriate to ascertain during voir dire whether prospective jurors speak the language other than English that will be used in the proceeding, and whether they harbor any views, positive or negative, about people who cannot communicate readily in English. Cross references: No. 1.109, Role of Interpreter for Juror--Preliminary Instruction; No. 1.110, Witness's or Defendant's Use of Interpreter--Preliminary Instruction; No. 1.204, Witness's or Defendant's Use of Interpreter--Before Witness or Defendant Testifies; No. 2.506, Role of Interpreter for Juror--Final Instruction.
Page 167
80 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.508 Instruction 2.508 CAUTIONARY INSTRUCTION ON PUBLICITY, COMMUNICATION AND RESEARCH
I would like to remind you that, in some cases, although not necessarily this one, there may be reports in the newspaper or on the radio, internet, or television concerning concerning this case. If there should be such media coverage in this case, you may be tempted to read, listen to, or watch it. You must not read, listen to, or watch such reports because you must decide this case solely on the evidence presented in this courtroom. If any publicity about this trial inadvertently comes to your attention, do not discuss it with other jurors or anyone else. Just let me or my clerk know as soon after it happens as you can, and I will then briefly discuss it with you. As you retire to the jury room to deliberate, I also wish to remind you of an instruction I gave you at the beginning of the trial. During deliberations, you may not communicate with anyone not on the jury about this case. This includes any electronic communication such as email or text or any blogging about the case. In addition, you may not conduct any independent investigation during deliberations. This means you may not conduct any research in person or electronically via the internet or in another way.____________________________________ Comment: This instruction was added to the Fifth Edition in the closing instructions to the jury to continue to emphasize to the jurors that they must not use the internet to investigate anything in connection with the case or to communicate with anyone about the case.
Page 168
81 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.509 Instruction 2.509 COMMUNICATIONS BETWEEN COURT AND JURY DURING JURY'S DELIBERATIONS
If it becomes necessary during your deliberations to communicate with me, you may send a note by the clerk or marshal, signed by your foreperson or by one or more members of the jury. No member of the jury should try to communicate with me except by such a signed note, and I will never communicate with any member of the jury on any matter concerning the merits of this case, except in writing or orally here in open court. Bear in mind also that you are never, under any circumstances, to reveal to any person--not the clerk, the marshal or me--how jurors are voting until after you have reached a unanimous verdict. This means that you should never tell me, in writing or in open court, how the jury is divided on any matter--for example, 6-6 or 7-5 or 11-1, or in any other fashion--whether the vote is for conviction or acquittal or on any other issue in the case.____________________________________ Comment: The Fifth Edition modified this instruction slightly to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The Committee recommends the practice of having the courtroom clerk screen the jury notes to determine whether the note reveals a split in the jury. The clerk, without revealing the split to the judge, will notify the court. See, e.g., Payne v. U.S., 932 A.2d 1095, 1107-08 (D.C. 2007) ("Not only were Judge Leibovitz's actions not coercive, but also, we believe, her actions were well designed to relieve or dissipate any coercion that may have attended the first set of deliberations. Judge Leibovitz actively shielded herself from any attempt by the jury to inform her as to the jury split during deliberations. She heeded her courtroom clerk's advice that the first jury note contained information she should not see, and she asked a colleague to review the note and make any relevant findings. She made it clear to the jury
that she had 'never seen the note, [doesn't] know who wrote it or who signed it or who sent it, and [doesn't] know what it said.' "). Portions of the instruction have been cited with approval in Blango v. U.S., 335 A.2d 230, 233-34 (D.C. 1975) , and in (Charles) Smith v. U.S., 542 A.2d 823, 824 n.4 (D.C. 1988) . Similar language has also been cited with approval in Lewis v. U.S., 466 A.2d 1234, 1236-37 (D.C. 1983) . The language in the second paragraph was derived from the holding in Brasfield v. U.S., 272 U.S. 448 (1926) , and from language in Mullin v. U.S., 356 F.2d 368, 370, 123 U.S. App. D.C. 29, 31 (1966) ("we commend to the District Court a fixed practice of admonishing every jury at the time it retires that it must not reveal the standing of its vote at any time to anyone ..."). Accord (Charles) Smith, 542 A.2d at 827 ("trial judges should routinely instruct their juries never to reveal their numerical division in any communication with the court"). Nevertheless, a revelation of the jury's numerical split, which is not elicited by the court or counsel, is not necessarily grounds for a mistrial, particularly if the note does not reveal whether the majority favors conviction or acquittal and the judge's response to the note is non-coercive. See Wilson v. U.S., 419 A.2d 353, 357 (D.C. 1980) ; Johnson v. U.S., 840 A.2d 1277, 1282 n.8 (D.C. 2004) ; (Michael) Smith v. U.S., 389 A.2d 1356, 1360 n.7 (D.C. 1978) ; Jackson v. U.S., 368 A.2d 1140, 1141 n.5 (D.C. 1977) ; Simms v. U.S., 276 A.2d 434, 436-37 (D.C. 1971) ; U.S. v. Diggs, 522 F.2d 1310, 1320-22, 173 U.S. App. D.C. 95, 105-07 (1975) ; cf. (Charles) Smith, 542 A.2d at 824-25 (reversed and remanded because potential for jury coercion was not eliminated where judge's law clerk intercepted two jury notes that revealed jury's numerical split in favor of conviction, but jurors were never informed that judge was unaware of their numerical split). But see Crowder v. U.S., 383 A.2d 336, 343 (D.C. 1978) (mistrial required where jury poll revealed the existence and identity of a single dissenting juror); U.S. v. Essex, 734 F.2d 832, 845, 236 U.S. App. D.C. 166, 179 (1984) ("[i]t is plain error for the trial judge to call the jury back from deliberations and ask them how they are numerically divided, even when there is no showing that it had any influence on the jury."). The court is not required to accept a communication from the jury if it is not in the form of a signed writing. See Lewis v. U.S., 466 A.2d 1234, 1237 (D.C. 1983) . Ex parte communications regarding the case between a judge and one or more members of a jury may be grounds for reversal. See U.S. v. United States Gypsum Co., 438 U.S. 422, 460-62 (1978), 438 U.S. 422, 460-62, 98 S. Ct. 2864, 57 L. Ed. 2d 854, 1978-1 Trade Cas. (CCH) P62103 (private meeting between judge and jury foreman held error where discussion implicitly included a supplemental anti-deadlock jury instruction); Rushen v. Spain, 464 U.S. 114, 121 (1983) (per curiam) (automatic reversal not required where undisclosed discussion between judge and juror did not touch on any fact in controversy or any law applicable to the case); Al-Mahdi v. U.S., 867 A.2d 1011, 1021 (D.C. 2005) (appellate court's review of ex parte communications is deferential because effect on juror impartiality is question of historical fact); Lewis v. U.S., 567 A.2d 1326, 1328 (D.C. 1989) (court's ex parte communication with one juror held not to be reversible error given the facts); Johnson v. U.S., 544 A.2d 270, 273 (D.C. 1988) (harmless error for trial judge to excuse bereaved juror during ex parte communication that was subsequently reported to the parties); Sloan v. U.S., 527 A.2d 1277, 1287 (D.C. 1987) ("indirect and accidental receipt of non-prejudicial ex parte information may be satisfactorily addressed by notification to counsel of the communication" given facts of this case); Springs v. U.S., 311 A.2d 499, 500 & n.1 (D.C. 1973) (trial court should have refrained from communicating outside the presence of defense counsel, but no reversal required since the communication did not prejudice defendant); cf. Richbow v. D.C., 600 A.2d 1063, 1064 n.1 (D.C. 1991) (in civil case, appellant not prejudiced by court's "innocuous ex parte communication with the jury"). It is not error, however, for a judge to respond in open court to individual juror's questions. Barnes v. U.S., 822 A.2d 1090, 1092 (D.C. 2003) (no abuse of discretion; court emphasized that its responses were
addressed to the jury as a whole). It is also not error for a judge to briefly question individual jurors about the alleged refusal of one juror to deliberate. Brown v. U.S., 818 A.2d 179, 187 (D.C. 2003) (refusing to "unnaturally restrict the ability of the trial judge to gather relevant information on an issue of key importance to both parties"). For general discussion of these issues, see 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 5.22 (5th ed. 2000); Fed. R. Crim. P. 31(a) and Super. Ct. Cr. R. 31(a) (unanimity of verdict). Cross references: No. 2.407, Verdict Form Explanation; No. 2.600, Court Interaction with Jury During Deliberations--Note; No. 2.601, When Jurors Cannot Agree; No. 2.603, Return of the Jury After Polling.
Page 171
82 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.510 Instruction 2.510 ATTITUDE AND CONDUCT OF JURORS IN DELIBERATIONS
The attitude and conduct of jurors at the beginning of their deliberations are matters of considerable importance. It may not be useful for a juror, upon entering the jury room, to voice a strong expression of an opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may cause that juror to hesitate to back away from an announced position after a discussion of the case. Furthermore, many juries find it useful to avoid an initial vote upon retiring to the jury room. Calmly reviewing and discussing the case at the beginning of deliberations is often a more useful way to proceed. Remember that you are not partisans or advocates in this matter, but you are judges of the facts.____________________________________ Comment: This is a new instruction that was added in the 2010 release to advise the jurors that at the beginning of their deliberations it may be more useful for them to discuss the case before expressing their opinion on the appropriate outcome.
Page 172
83 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.511 Instruction 2.511 EXCUSING ALTERNATE JURORS
The last thing I must do before you begin your deliberations is to excuse the alternate jurors. As I told you before, the selection of alternates was an entirely random process; it's nothing personal. We selected [two] [insert other number as appropriate] seats to be the alternate seats before any of you entered the courtroom. Since the rest of you have remained healthy and attentive, I can now excuse those jurors in seats [insert seat numbers]. Before you [two] [insert other number as appropriate] leave, I am going to ask you to tear out a page from your notebook, and to write down your name and daytime phone number and hand this to the clerk. I do this because it is possible, though unlikely, that we will need to summon you back to rejoin the jury in case something happens to a regular juror. Since that possibility exists, I am also going to instruct you not to discuss the case with anyone until we call you. My earlier instruction on use of the Internet still applies; do not research this case or communicate about it on the Internet. In all likelihood, we will be calling you to tell you there has been a verdict and you are now free to discuss the case; there is, however, the small chance that we will need to bring you back on to the jury. Thank you very much for your service, and please report back to the jury office to turn in your badge on your way out.____________________________________ Comment: This was added as a new instruction in the 2011 release.
Page 173
84 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions E. Closing Remarks 1-II Criminal Jury Instructions for DC Instruction 2.520 Instruction 2.520 WHEN NEW JUROR JOINS THE PANEL
Because Juror # ___ is no longer able to participate in deliberations, I have replaced him/her with Juror # ___. As the new juror has not taken part in any of your previous deliberations, I am now instructing you that you must start your deliberations over again as if you were an entirely new jury. You are to put aside any and all deliberations in which you have participated until now. You are to begin your deliberations as if you had just heard my final instructions. The courtroom clerk will collect the verdict form that you were given at the beginning of deliberations and place it under seal without looking at it or showing it to anyone. It will no longer have any effect, and a new verdict form will be given to you. None of the decisions, if any, that you made during previous deliberations is controlling. Any of you, if you wish, may change your minds from any position you took before. You may now return to the jury room to deliberate as a new jury panel. You may begin by once again selecting a foreperson as previously described in my final jury instructions.____________________________________ Comment: This was added as a new instruction in the 2011 release to instruct jurors on how they should proceed when a new juror joins a panel that has already been deliberating.
Page 174
85 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions F. During Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.600 Instruction 2.600 COURT INTERACTION WITH JURY DURING DELIBERATIONS--NOTE
While the jury is deliberating the trial judge must be available to the jury for further instruction at all reasonable hours. Jordon v. Bondy, 114 F.2d 599, 605, 72 App. D.C. 360 (1940) . Once a note from the jury requesting reinstruction on a point of law has been received, the court should mark the note as an exhibit and read it into the record in the presence of defendant, defense counsel, and the government. It is improper for a clerk to respond directly to a jury's note, and trial judges should not allow it. Hallmon v. U.S., 722 A.2d 26, 27 (D.C. 1998) .____________________________________ Defendant's Presence for Reinstruction "The defendant shall be present ... at every stage of the trial ..." Super. Ct. Crim. R. 43(a). See Rogers v. U.S., 422 U.S. 35, 39 (1975) (" Federal Rule Crim. Proc. 43 guarantees to a defendant in a criminal trial the right to be present 'at every stage of the trial including the impaneling of the jury and the return of the verdict.' Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury's message should have been answered in open court and that petitioner's counsel should have been given an opportunity to be heard before the trial judge responded."); Hazel v. U.S., 599 A.2d 38 (D.C. 1991) (court committed harmless error when it reinstructed the jury during defendant's involuntary absence where defense counsel had waived defendant's presence and defendant had been present for the entire colloquy preceding the reinstruction); (Charles) Smith v. U.S., 542 A.2d 823, 826 (D.C. 1988) ; Harris v. U.S., 489 A.2d 464, 469 n.5 (D.C. 1985) (defendant's right to be present during reinstruction of the jury is a personal right which can be violated even if defense counsel waives defendant's right to be present); Winestock v. U.S., 429 A.2d 519, 528 (D.C. 1981) ; Kleinbart v. U.S., 426 A.2d 343, 355 (D.C. 1981) , rev'd on other grounds, 553 A.2d 1236 (D.C. 1989) (no reversible error where judge responded to jury note "without notice to and in the absence of counsel and defendant" because judge's impartial communication " 'did not prejudice the defendant's substantial rights' "); Wilson v. U.S., 419 A.2d 353, 356 (D.C. 1980) ; (Michael) Smith v. U.S., 389 A.2d 1356, 1361 (D.C. 1978) (failure to insure defendant's presence at every stage of trial does not require automatic reversal); U.S. v. (James) Jones, 517 F.2d 176, 181-82, 170 U.S. App. D.C. 362 (1975) (brief absence of defendant while
judge gave clarifying instruction not prejudicial, but not a good practice); Springs v. U.S., 311 A.2d 499, 500 n.1 (D.C. 1973) (harmless error where disputed reinstruction did not prejudice defendant's substantial rights); Wade v. U.S., 441 F.2d 1046, 1048-49, 142 U.S. App. D.C. 356, 358-59 (1971) (reinstructing jury in defendant's absence constituted reversible error); cf. Kimes v. U.S., 569 A.2d 104, 108 (D.C. 1989) (trial can proceed in defendant's absence if "court determines that the defendant voluntarily failed to appear at trial"). Defendant's presence when jury is not being reinstructed If the court is not reinstructing the jury, the defendant's presence may not be required during other types of contact between the court and the jury. See, e.g., U.S. v. Sobamowo, 892 F.2d 90, 96, 282 U.S. App. D.C. 74, 80 (1989) (court's refusal to permit defendant to be present when audio-taped testimony was replayed for the jury was not error; review of tape by jury is not a stage of trial implicating either Fed. R. Crim. P. 43(a) or the Sixth Amendment Confrontation Clause); Harris v. U.S., 489 A.2d 464, 469 (D.C. 1985) (defendant's absence during rereading of two witnesses' testimony to the jury not error where defense counsel was "present for the reading, the portions to be read were fixed beforehand following argument by counsel, and the jury was admonished to say nothing in the presence of the attorneys and the [court] reporter"); Quarles v. U.S., 349 A.2d 690, 692 (D.C. 1975) (defendant's absence during transmission of exhibits to jury not prejudicial given "ministerial nature of the activity"). Opportunity of parties to comment on response to jury notes Before reinstructing the jury, the court should allow both sides the opportunity to suggest an appropriate response or to object to any proposed response. See Rogers v. U.S., 422 U.S. 35, 39 (1975) ; Wilson v. U.S., 419 A.2d 353, 356 (D.C. 1980) ; (Michael) Smith v. U.S., 389 A.2d 1356, 1361 (D.C. 1978) ; Super. Ct. Crim. R. 30; cf. Shreeves v. U.S., 395 A.2d 774 (D.C. 1978) (no error to deny untimely defense request regarding reinstructions). Response and reinstruction generally within the discretion of trial judge Generally, the decision whether to respond to a jury inquiry and how to instruct is within the discretion of the trial judge. See, e.g., (Terrance) Johnson v. U.S., 840 A.2d 1277, 1283 (D.C. 2004) (trial court has discretion in dealing with jury polls and instructions; no abuse of discretion when trial court failed to give anti-deadlock instruction); Bates v. U.S., 834 A.2d 85, 92 (D.C. 2003) (decisions regarding whether and how to re-instruct the jury are committed to the broad discretion of the trial court; although it would have been better to remind the jury of the element of deliberation in the reinstruction, in light of the specific question asked, and given the trial judge's reliance that the jury had been given access to the full instruction, the partial reinstruction was not obviously wrong); U.S. v. Laing, 889 F.2d 281, 290, 281 U.S. App. D.C. 266, 275 (1989) ("A trial court has considerable discretion in determining how to respond, if at all, to a jury's request for clarification of a jury instruction. Where the jury explicitly reveals its confusion on an issue, however, the court should reinstruct the jury to clear away the confusion.") (citations omitted); Davis v. U.S., 510 A.2d 1051, 1052 (D.C. 1986) ("Decisions regarding reinstruction of a jury are committed to the discretion of the trial court; absent abuse of that discretion we will not reverse."); Tyler v. U.S., 495 A.2d 1180, 1183 (D.C. 1985) ("The decision on what further instructions, if any, to give in response to a jury question lies within the sound discretion of the trial court."); Murchison v. U.S., 486 A.2d 77, 83 (D.C. 1984) (court is not obligated to answer every inquiry put to it by the jury); Bedney v. U.S., 471 A.2d 1022, 1024 (D.C. 1984) ("Decisions concerning reinstruction of a jury are within the discretion of the trial court. In the instant case, both the court and counsel interpreted the jury's note as a request to repeat the self-defense instruction and the directions contained therein as to provocation. Given the ambiguous nature of the jury's request, the court's
interpretation and reinstruction were reasonable.") (citations omitted). See also U.S. v. Davis, 974 F.2d 182, 189, 297 U.S. App. D.C. 396, 403 (1992) (not abuse of discretion for court to answer jury's question by asking if they want to hear part of the testimony). It is not error to refuse to instruct jury on a matter of law that is for the judge, not the jury, to apply. Hagins v. U.S., 639 A.2d 612, 617 (D.C. 1994) (merger test applied to kidnapping and rape is applied by the court as a matter of law; it is not a matter on which the jury must or even may be instructed). The court may recall the jury after it has retired and give additional instructions in order to correct or withdraw an erroneous instruction, clarify an ambiguous instruction, or instruct the jury on a point of law which should have been covered in the original instructions. See U.S. v. Hester, 598 F.2d 247, 249-50, 194 U.S. App. D.C. 328, 330-31 (1979) (conviction affirmed where judge adequately corrected original instructional error); Murray v. D.C., 358 A.2d 651, 653 (D.C. 1976) . Upon receipt of a request by the jury, the court may limit its response to the precise contours of the jury's request, see U.S. v. Laing, 889 F.2d 281, 281 U.S. App. D.C. 266, 275 (1989) ; Wilson v. U.S., 528 A.2d 876, 879 n.6 (D.C. 1987) ; U.S. v. Jones, 482 F.2d 747, 750, 157 U.S. App. D.C. 158, 161 (1973) , or it may give additional instructions in order to provide a more balanced instruction. See Hill v. U.S., 627 A.2d 975, 981 (D.C. 1993) (where deliberating jury asked if it could consider "arrest procedures" in determining if defendant sold drugs to undercover officer, trial judge's response that included functions of court and jury, burden of proof, presumption of innocence, and that only issue before jury was whether the government proved beyond a reasonable doubt that defendant committed offense, was proper); Swanson v. U.S., 602 A.2d 1102, 1106 n.11 (D.C. 1992) (reinstruction regarding self-defense); Coreas v. U.S., 565 A.2d 594, 599 (D.C. 1989) (same); Wilson v. U.S., 528 A.2d 876, 879 n.6 (D.C. 1987) (same); Davis v. U.S., 510 A.2d 1051, 1053 (D.C. 1986) (same). The reinstruction need not review all the elements of the charged offense if the elements were adequately set forth in the initial charge. See Mathews v. U.S., 539 A.2d 1092, 1094 (D.C. 1988) ; U.S. v. Dixon, 419 F.2d 288, 290, 135 U.S. App. D.C. 401, 403 (1969) ; cf. Vauss v. U.S., 370 F.2d 250, 252, 125 U.S. App. D.C. 228, 230 (1966) (overly brief supplemental instruction not ideal but not plain error when read along with the principal instruction). However, in order to avoid giving undue prominence to the reinstructions, the court should remind the jury that the supplemental instructions should be considered as part of the total charge. See Davis v. U.S., 510 A.2d 1051, 1053 (D.C. 1986) . If the jury poses an ambiguous or confusing request, the court is permitted to ask the jury to clarify its question. See Potter v. U.S., 534 A.2d 943, 946 (D.C. 1987) ; Murchison v. U.S., 486 A.2d 77, 83 (D.C. 1984) . Court must eliminate juror confusion before accepting verdict; not bound by language of standard instructions Once a jury has expressed its confusion regarding a point of law, the court must not accept a verdict until it first addresses the jury's question--even if the jury has informed the court that it has reached a verdict in the meantime. See Alcindore v. U.S., 818 A.2d 152, 158 (D.C. 2003) (when trial court was presented with note from jury that indicated the jury was confused or misunderstood the law, even though it also said they had reached a verdict, the court was required to re-instruct the jury to address this apparent confusion; any re-instruction in this self-defense case "should have included the circumstances under which a person may use deadly force in self-defense and made clear that the test is whether the defendant, as opposed to the jury or anyone else, actually and reasonably believed such force to be necessary to avoid his own serious bodily harm"); Potter v. U.S., 534 A.2d 943, 946 (D.C. 1987) (court's failure to "dispel jury confusion on a controlling issue"--whether self defense applied to the charge of possession of a prohibited weapon--constituted reversible error where the lack of a response "may have led the jury to fail to give proper consideration to appellant's account of what transpired"); see also Whitaker v. U.S., 617 A.2d 499, 501 (D.C. 1992) (error to fail, upon request of defense counsel, to
reinstruct the jury where it was apparent that the jury was confused and about to return inconsistent verdicts which would be irreconcilable with the court's instructions). When responding to a jury's request, the court is not bound by the standard instructions. To the contrary, where the jurors indicate that portions of the initial instructions are confusing, the court must undertake to eliminate the confusion; simply rereading the portions of the instructions at issue is not sufficient. See, e.g., Bollenbach v. U.S., 326 U.S. 607, 612-13 (1946) ; Laing, 281 U.S. App. D.C. at 275, 889 F.2d at 290 (1989) ; Potter, 534 A.2d at 946 ; U.S. v. Bolden, 514 F.2d 1301, 1308-09, 169 U.S. App. D.C. 60, 67-68 (1975) (court should not allow a "troubled jury to rely on a layman's interpretation of a superficially simple but actually complex statute"). Where the jury has not indicated that it is confused, however, it is not error to fail to reinstruct the jury sua sponte. (Diane) Smith v. U.S., 684 A.2d 307, 310-312 (D.C. 1996) . It is also not error to instruct the jury, in response to a note, on issues not addressed earlier or on a different theory of the case. See Brown v. U.S., 683 A.2d 118, 128 n.12 (D.C. 1996) (not error to instruct jury on aiding and abetting in response to jury note, even though government's original theory of the case was that defendant was a principal; also proper to permit supplemental closing arguments in such circumstances); Tyler v. U.S., 495 A.2d 1180, 1183 (D.C. 1985) (no abuse of discretion in instructing jury, in response to a note after deliberations had begun, that aiding and abetting instruction was also to apply to additional count of indictment). However, it was error for the court to permit the jury to view items not in evidence. "[T]he trial court had two options: (1) refuse to allow the jury view or (2) reopen the case to allow the introduction of the evidence and any appropriate argument." Barron v. U.S., 818 A.2d 987, 992 (D.C. 2003) . Finally, it is not error for the judge to respond in open court to the entire jury even though questions were posed only by individual jurors. Barnes v. U.S., 822 A.2d 1090, 1092 (D.C. 2003) (no abuse of discretion; court emphasized its responses were addressed to the jury as a whole). Right of counsel to additional argument Under appropriate circumstances, when a supplemental instruction is given after deliberations have begun, counsel may have a right to additional argument before the jury. See Loveless v. U.S., 260 F.2d 487, 488, 104 U.S. App. D.C. 157, 158 (1958) ; cf. Brooks v. U.S., 599 A.2d 1094, 1102 (D.C. 1991) (permitting further argument following reinstruction might have mitigated the harm caused by the improper instruction); Murray v. U.S., 358 A.2d 651, 654 (D.C. 1976) ; Atkinson v. U.S., 322 A.2d 587, 589 (D.C. 1974) (appellate attack on supplemental instruction undermined by trial counsel's failure to request additional argument when supplemental instructions were given); Super. Ct. Crim. R. 30; Fed. R. Crim. P. 30. But see U.S. v. Ayeni, 374 F.3d 1313, 1317, 362 U.S. App. D.C. 488, 492 (2004) ("[A]ny use of supplemental arguments in response to a jury's factual questions" is "strongly discourage[d]"); id., 362 U.S. App. D.C. at 496-98, 374 F.3d at 1321-23 (Tatel, J., concurring) ("[W]here a jury's legal question leads the judge to give supplemental instructions, supplemental arguments may be appropriate if the instructions introduce legal theories or concepts about which the parties never had a chance to argue," but "supplemental arguments in response to factual questions" are "an intrusion into the jury's deliberations and invasion of its fact-finding role."). Dealing with note indicating that individual jurors are not deliberating If a note from the jury indicates that one or more jurors have refused to deliberate or follow the law, the trial court has discretion to investigate the claim; however, any inquiry of the jurors must avoid intruding into the substance of the jury's deliberations. See Brown v. U.S., 818 A.2d 179, 186 (D.C. 2003) (trial court did not abuse discretion when it dismissed a juror during deliberations based on the juror's refusal to take part in deliberations; trial court instructed the jury three times before conducting an individual
voir dire to investigate the allegations). However, in U.S. v. Brown, 823 F.2d 591, 596, 262 U.S. App. D.C. 183, 188 (1987) , the D.C. Circuit held "that if the record evidence discloses any possibility that the [juror's] request to [be] discharged stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request." In U.S. v. Thomas, 116 F.3d 606, 622 (2d Cir. 1997) , the Second Circuit adopted "the Brown rule as an appropriate limitation on a juror's dismissal in any case where the juror allegedly refuses to follow the law." In U.S. v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999) , the Ninth Circuit adopted a slightly less strict standard. After considering Brown and Thomas, the Ninth Circuit held "that if the record evidence discloses any reasonable possibility that the impetus for a juror's dismissal stems from the juror's views on the merits of the case, the court must not dismiss the juror." Cf. Sanders v. Lamarque, 357 F.3d 943, 944 (9th Cir. 2004) ("[r]emoval of a holdout juror is the ultimate form of coercion"). For further discussion of this subject see Jacob A. Stein, Trial Handbook for District of Columbia Lawyers, 36:2 (updated May 2007); 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 20.07, pp. 952-64 (5th ed. 2000); ABA Standards for Criminal Justice, Discovery and Trial By Jury, 15-5.3 (3d ed. 1996); Wright, 2A Federal Practice and Procedure, Criminal 2d 502 (3d ed. 2000). Cross references: No. 2.501, Exhibits During Deliberations, No. 2.509, Communications Between Court and Jury During Jury's Deliberations; No. 2.601, When Jurors Cannot Agree.
Page 179
86 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions F. During Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.601 Instruction 2.601 WHEN JURORS CANNOT AGREE
I. INITIAL INSTRUCTION TO JURY THAT INDICATES IT CANNOT AGREE: Your note indicates that you have been unable to reach a unanimous decision at this time. [This has been a relatively long trial--longer than many trials we have in this courthouse. There were a large number of witnesses who testified and a substantial amount of evidence received, and I would expect that it would take some time to reach a resolution of this matter.] My best judgment is that you have been deliberating for a total of about [[_____] ] [hours][days], which is not unusual in cases such as this. As a result, I am going to ask that you deliberate further in this case and that you keep an open mind about the case with a view to listening to others and expressing your own point of view to see whether you can reach a unanimous decision. Please resume your deliberations at this time. II. FOR USE IN SUPERIOR COURT ONLY (MIZE INSTRUCTION): First of all, I want to compliment you on carefully following my earlier instruction that whenever you send a note, you not mention how you are divided on an issue. I have no idea on what lines you are divided and what the issues may be that are dividing you. I'm thankful that I do not know that, and my instruction not to reveal how you are divided continues unless and until you reach a unanimous verdict. In addition, the Court is not interested in a decision. What I am interested in is offering help to you if you think the Court can be of help to you. And when I say if the Court can be of help to you, I may enlist the assistance of the attorneys for each side in trying to be of help to you. The goal here is not to force you to reach a verdict, or to suggest in any way what your verdict should be.
I am proposing that it may be helpful for you in the privacy of your jury room to identify areas of agreement and areas of disagreement that you are having. If you care to make such identification, you may then wish to discuss the law and the evidence as they relate to those areas of disagreement. If you still have disagreement, I invite you but I do not require you to identify any questions about the evidence or the final instructions of law regarding which you would like assistance from the Court or counsel. If you choose this option, then please list in writing, in as clear and simple language as you can fashion, where further assistance might help you in bringing about a verdict. In closing, I want to repeat that I do not wish or intend to force a verdict. I am merely trying to respond to your latest note. If you think this offer might be of assistance, then I think it would be wise to give it a try. III. ANTI-DEADLOCK INSTRUCTIONS A. INSTRUCTION FOR USE IN FEDERAL OR SUPERIOR COURT (THOMAS INSTRUCTION): The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to the verdict. In other words, your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges--judges of the facts. Your sole interest should be to reach a just verdict from the evidence in the case. B. FOR SUPERIOR COURT ONLY (WINTERS INSTRUCTION): Your note indicates that you [have been] [continue to be] unable to reach a unanimous verdict at this time. I would like to advise you as follows: Although the verdict must be the verdict of each juror, and not merely giving in to the views of the other jurors, nevertheless, you should examine the questions submitted to you honestly and with proper regard and respect for the opinions of each other. You should consider that it is desirable that the case be decided. You should understand that you were selected in the same manner, and from the same source, from which any future jury that considers this case in a new trial will be selected. There is no reason to suppose that the case will ever be submitted to 12 persons who are more intelligent, more impartial, or more competent to decide it nor to suppose that more or clearer evidence will be produced on one side or the other. With this in mind, it is your duty to decide the case, if you can conscientiously do so. You should listen to each other's arguments with a willingness to be convinced. Thus, where there is disagreement, jurors who are for acquittal should seriously consider whether their doubt is a reasonable
one if it makes no impression upon the minds of other jurors who are equally honest and equally intelligent as themselves, and who have heard the same evidence, with the same attention, with an equal desire to evaluate the evidence and decide the case, and under the sanction of the same oath. And on the other hand, jurors who are for conviction ought seriously to ask themselves whether they might not reasonably doubt the correctness of a judgment which is not shared by other jurors on the jury, and whether they should trust the sufficiency of that evidence which fails to carry conviction in the minds of fellow jurors who, again, are equally honest and equally intelligent as themselves, and who have heard the same evidence, with the same attention, with an equal desire to evaluate the evidence and decide the case, and under the sanction of the same oath. With those thoughts in mind, I am going to ask you to resume your deliberations. C. FOR SUPERIOR COURT ONLY (GALLAGHER INSTRUCTION): The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to it. Your verdict should be unanimous. You should consider that it is desirable that the case be decided if you can conscientiously do so; that you were selected in the same manner, and from the same source, from which any future jury must be. There is no reason to suppose that the case will ever be submitted to 12 persons more intelligent, more impartial, or more competent to decide it, nor to suppose that more or clearer evidence will be produced on one side or the other. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without sacrificing your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and the reasons for your views, and to change your opinion if convinced it is wrong. But do not surrender your honest conviction as to the weight or effect of evidence because of the opinion of your fellow jurors, solely for the purpose of returning a verdict. You are not advocates for either side. You are judges--judges of the facts. Your sole interest should be to reach a just verdict from the evidence in the case. ____________________________________ Comment: The instruction in Part I is provided for when the jury has not deliberated a long time and sends out a note that it is deadlocked. This instruction does not constitute a Winters charge, but merely encourages the jurors to continue to deliberate. See Dean v. U.S., 938 A.2d 751, 757, 766-67 (D.C. 2007) (approving instruction to jurors that to "keep an open mind about the case with a view to listening to the others and expressing your own pont of view to see whether you can reach a unanimous decision"); Carey v. U.S., 647 A.2d 56, 60 (D.C. 1994) . See also Nixon v. U.S., 730 A.2d 145, 154-55 (D.C. 1999) (instruction to continue to deliberate did not make later Winters charge coercive). Some language is bracketed depending upon how long the jury has deliberated. The instruction in Part II (formerly Instruction 2.91A) may be given only in Superior Court. The D.C. Court of Appeals, applying the plain error standard, found "no error at all" in giving this instruction to a deadlocked jury. Trapps v. U.S., 887 A.2d 484, 491 (D.C. 2006) . The Court declared that the instruction
"is not a Winters, or anti-deadlock-type instruction." Id. at 492, n. 8 . This instruction is not approved for use in U.S. District Court. There, a similar instruction was rejected "as an acceptable model for use in [the D.C. Circuit]," on the ground that it "openly invites an intrusion into the basic functions of the jury and does so in a manner that is rife with the potential for coercion." U.S. v. Yarborough, 400 F.3d 17, 21, 365 U.S. App. D.C. 137, 141 (2005) . Finally, this instruction may be given before the Winters or Thomas instructions but should never be given after those instructions. The instruction in Part III (A) is taken verbatim from the instruction cited with approval in the en banc holding of the U.S. Court of Appeals in U.S. v. Thomas, 449 F.2d 1177, 1185, 146 U.S. App. D.C. 101, 108 n.45 (1971) ; see also Lowenfield v. Phelps, 484 U.S. 231 (1988) (use of similar anti-deadlock charge not coercive given facts of the case). The instruction was adapted from the anti-deadlock instruction recommended by the American Bar Association in Standards for Criminal Justice, Trial by Jury, Standard 15-4.4. (2d ed. 1980). The District of Columbia Circuit has emphasized that "We cannot, and will not, modify the instruction required by Thomas by treating departures from it as harmless." U.S. v. Berroa, 46 F.3d 1195, 1197-98, 310 U.S. App. D.C. 278, 280-81 (1995) ; see also U.S. v. Yarborough, 400 F.3d 17, 21, 365 U.S. App. D.C. 137 (2005) (reversing conviction when court erred by giving instruction recommended by the Council for Court Excellence rather than the Thomas charge noting that "[a]ny substantial departure from the language approved in Thomas is "presumptively coercive."). Alternative B in Part III, for use in Superior Court, is taken from the instruction adopted in the en banc holding of the District of Columbia Court of Appeals in Winters v. U.S., 317 A.2d 530, 534 (D.C. 1974) (en banc). It is not to be given in U.S. District Court. See U.S. v. Strothers, 77 F.3d 1389, 1391, 316 U.S. App. D.C. 210, 212 (1996) ("Here too the trial judge inexplicably elected to use Alternative B, which lacks the required admonition against surrendering one's honest conviction, in violation of our repeated directive to use the ABA deadlock instruction. Thus, we conclude that the trial judge erred in giving the Alternative B instruction and that the jurors' subsequent deliberation and verdicts were tainted by that error.") (footnote omitted). The use of this instruction is not, however, mandated in all cases involving a deadlocked jury. Rather, Alternative B represents the "high water mark for an anti-deadlock charge"; the use of a "less emphatic" anti-deadlock charge, such as the Thomas charge used in U.S. District Court, or the Alternative III (C), "the Gallagher charge," remains within the trial court's "instructional discretion" in Superior Court. Winters, 317 A.2d at 533-34 ; Epperson v. U.S., 495 A.2d 1170, 1173 (D.C. 1985) ("which 'anti-deadlock' instruction it gives is in the discretion of the trial judge"); see also Davis v. U.S., 712 A.2d 482, 486-87 (D.C. 1998) (trial judge's decision to give Winters instruction was well within his discretion). Alternative III (C), proposed by Judge Gallagher in his concurring opinion in Winters v. U.S., 317 A.2d 530, 539 (D.C. 1974) (en banc), may be used in the Superior Court as a substitute for either of the alternative instructions listed as Alternative III (A) and Alternative III (B) above. See Davis v. U.S., 700 A.2d 229, 231 (D.C. 1997) (judge has discretion to fashion his or her own anti-deadlock instructions so long as they do not exceed the pressure for a verdict presented by the Winters charge; but not an abuse of discretion to adhere to Winters instruction); see also Green v. U.S., 740 A.2d 21 (D.C. 1999) (viewing Gallagher charge as a third alternative and explaining relationship between the three alternative charges). Potential for coercion Because of the potential for coercion inherent in any anti-deadlock instruction, the Court of Appeals has cautioned that an anti-deadlock charge generally should only be delivered to a hung jury once. See Epperson v. U.S., 495 A.2d 1170, 1175-76 (D.C. 1985) ("[o]nly if there are extenuating circumstances ... should an 'anti-deadlock' instruction be repeatedly given"); Nelson v. U.S., 378 A.2d 657, 660-61 (D.C. 1977) (not plain error where judge gave two anti-deadlock instructions since defense counsel repeatedly
requested the second anti-deadlock charge, the jury was discharged for the day following the second charge, and the jury did not reach its verdict until late the following afternoon). Giving the jury, at its request, a written copy of the Winters instruction is not tantamount to repeating or repeatedly giving the Winters instruction. ( Davis v. U.S., 700 A.2d 229, 231 (D.C. 1997) . Notwithstanding the above, a jury can repeatedly be reinstructed on points of law and repeatedly be given non-coercive instructions to resume its deliberations before an anti-deadlock instruction is given. Epperson v. U.S., 495 A.2d 1170, 1172 n.2 (D.C. 1985) ; see also Lowenfield v. Phelps, 484 U.S. 231, 234-35 (1988) (in sentencing phase of death penalty case, jury was not coerced when it was twice polled on whether further deliberations would be helpful in obtaining a verdict before it received an anti-deadlock instruction); Evans v. U.S., 883 A.2d 146 (D.C. 2005) (Not plain error for judge to send jury back to deliberate after it had been given a Thomas instruction and subsequently reported a deadlock); U.S. v. Black, 843 F.2d 1456, 1462-64, 269 U.S. App. D.C. 128, 134-36 (1988) (no coercion where judge gave full Thomas instruction for first time after jury's fourth note; judge's responses to first three notes held not coercive); Coleman v. U.S., 515 A.2d 439, 452-53 (D.C. 1986) (Winters instruction given for the first time after the court received its third jury note did not result in a coerced verdict); Chavarria v. U.S., 505 A.2d 59, 64-65 (D.C. 1986) (no abuse of discretion where Winters instruction given for first time after jury's third note); Wilson v. U.S., 419 A.2d 353 (D.C. 1980) (no abuse of discretion where Winters instruction given for first time after second jury note, in spite of obvious difficulties with one juror before and after the Winters instruction); Smith v. U.S., 389 A.2d 1356, 1361 (D.C. 1978) (verdict not coerced where trial judge "made no direct response to a jury note which did not reveal a deadlock but instead excused the jury at day's end" and permitted it to resume deliberations the following day); Blango v. U.S., 373 A.2d 885, 890 (D.C. 1977) (where jury had indicated its indecisiveness only two times, court did not abuse its discretion when it gave a Winters instruction instead of declaring a mistrial); Johnson v. U.S., 360 A.2d 502, 504-05 (D.C. 1976) (judge's responses not coercive where jury that was given Winters instruction at close of first day of deliberations was instructed to resume its deliberations following an announcement the next day that a verdict could not be reached on certain counts); Thompson v. U.S., 354 A.2d 848, 850 (D.C. 1976) (on facts of this case court did not err when, after giving a Winters instruction and receiving a subsequent report that the jury was still hung, it sent the jury back for further deliberation; a court may, however, be "skating on thin ice" if it instructs the jury to continue deliberations when no verdict has been reached and there has been a "reasonable period of further deliberation" following a Winters instruction) (emphasis added); U.S. v. Diggs, 522 F.2d 1310, 1320-21, 173 U.S. App. D.C. 95, 106-07 (1975) (judge's statement in response to jury note that "case will have to be retried" if no verdict is reached held non-prejudicial and non-coercive); Instruction No. 2.600, Court Interaction with Jury During Deliberations--Note. A deadlocked jury cannot be instructed to resume its deliberations if the language or circumstances surrounding the judge's instruction have a coercive effect. See, e.g., Jenkins v. U.S., 380 U.S. 445, 446 (1965) (judge's statement, in response to jury note received after two hours of deliberations, that "You have got to reach a decision in this case" held coercive); Benlamine v. U.S., 692 A.2d 1359 (D.C. 1997) (coercive to give Winters instruction after deadlock note when jury poll earlier revealed that the ninth juror disagreed with verdict); ( Davis v. U.S., 669 A.2d 680, 685 (D.C. 1995) ("Here the anti-deadlock instruction was given following the public revelation that a probable minority, likely of one, disagreed with the initial verdict of guilty... . 'coercion was probable, if not certain[,]' and therefore 'prejudice is presumed, and reversal is mandatory.' "); U.S. v. Green, 871 F. Supp. 493, 496-97 (D.D.C. 1994) , aff'd, 72 F.3d 920, 315 U.S. App. D.C. 281 (1995) (approved anti-deadlock instruction because it never instructed the jury that the case should not be retried or that the jury must reach a verdict; to determine if an instruction is coercive, the instruction is examined in the context and circumstances in which it is given); Smith v. U.S., 542 A.2d 823, 825-27 (D.C. 1988) (conviction reversed and remanded where a Winters instruction was given after the jury revealed its numerical division in favor of conviction); Morton v. U.S., 415 A.2d 800, 802 (D.C. 1980) (retrial required because timing of the Winters instruction
could have implied that a verdict was required before a particular juror would be excused to make funeral arrangements for her brother); Jackson v. U.S., 368 A.2d 1140, 1142 (D.C. 1977) (where jury disclosed an 11-1 numerical split and "judge knew which individual was holding out, it was error to direct an instruction toward that individual which intimated that she was guilty of either perjury or negligence in her response to questions on voir dire and that she was not complying with her oath as a juror"); cf. Simms v. U.S., 276 A.2d 434, 437 (D.C. 1971) (instructions not coercive where Allen charge was given after jury reported its numerical division without revealing whether the majority favored conviction or acquittal); see also Davis v. U.S., 700 A.2d 229, 230 (D.C. 1997) (not coercive to give Winters instruction where two jurors had concerns about school and work but said they could deliberate fairly). Court must determine jury is hung A court should avoid giving an anti-deadlock charge until it has determined, based on such things as "the nature and complexity of the trial issues, the duration of the trial and the length of the jury deliberations, as well as the representations of the jury to the court about the state of its deliberations," that the jury is truly hung. Epperson v. U.S., 495 A.2d 1170, 1172 (D.C. 1985) ; see also U.S. v. Black, 843 F.2d 1456, 1463, 269 U.S. App. D.C. 128, 135 (1988) ("[a] trial judge may take reasonable steps to ensure that a jury is in fact deadlocked when informed that this is a possibility"); U.S. v. James, 764 F.2d 885, 890-91, 246 U.S. App. D.C. 252, 257-58 (1985) (no abuse of discretion where judge gave Thomas instruction after "jury had spent over five hours considering testimony about relatively simple factual disputes and reported an impasse"); Wilson v. U.S., 419 A.2d 353, 356 (D.C. 1980) (a Winters instruction "should only be given after considering the nature of the case and the time spent in deliberation"); Reed v. U.S., 383 A.2d 316, 322 (D.C. 1978) (where jury twice indicated its inability to reach a verdict, trial court did not err when it gave a Winters instruction instead of declaring a mistrial because the case had lasted only three days, involved only two co-defendants and the jury had only deliberated a total of twelve to fourteen hours); Thompson v. U.S., 354 A.2d 848, 851 n.8 (D.C. 1976) ("the Winters instruction ... is not a course to be taken precipitously and automatically when a jury announces an inability to reach a verdict"). But see Abney v. U.S., 464 A.2d 106, 107 n.1 (D.C. 1983) (where jurors reported deadlock after 3 1/2 hours of deliberations, not unduly coercive for court to give Winters instruction rather than declare a mistrial); Johnson v. U.S., 360 A.2d 502 (D.C. 1976) (Winters instruction given two hours after start of deliberations and announcement of deadlock was not coercive). Lesser included offenses; reasonable efforts or acquittal first instructions When a jury expresses its inability to reach agreement on the charges before it, a judge may poll the jury to determine whether it might be possible for the jury to reach a verdict on a lesser included offense. In such instances, the U.S. Court of Appeals for the District of Columbia has recommended that the following language be used: "Without attempting to influence your deliberations in any way, I merely wish to inquire whether you have explored the possibility of agreement on the lesser charge." U.S. v. Smoot, 463 F.2d 1221, 1223-24, 150 U.S. App. D.C. 130, 132-33 (1972) . See also Taylor v. U.S., 866 A.2d 817, 825 (D.C. 2005) (even though the defendant had chosen an "acquittal first" instruction, trial court did not err in giving a "reasonable efforts" instruction when the jury reported for the third time that it could not agree on the greater charge; "the 'acquittal first' approach ... bears within its own terms the possibility of a 'reasonable efforts' reinstruction in the event of a deadlock"); Powell v. U.S., 684 A.2d 373 (D.C. 1996) (trial court did not err by denying defendant's motion for a mistrial and by giving the "reasonable efforts" instruction over defendant's objection; trial court had concluded that the "acquittal first" instruction would be too coercive and the defendant did not ask for an "acquittal first" instruction when the jury informed the court that it was deadlocked, nor did the defendant offer any alternative other than a mistrial); Jackson v. U.S., 683 A.2d 1379, 1381 (D.C. 1996) (when the jury reports a deadlock on a greater offense, the defendant is entitled to request that a "reasonable efforts" instruction be given,
permitting the jury to consider a lesse r offense after making "all reasonable efforts" to reach a verdict on a greater offense); Jones v. U.S., 620 A.2d 249 (D.C. 1993) (when the jury reports that it is deadlocked, the decision as to which instruction to give (either an "acquittal first" or a "reasonable efforts" instruction), must be left to the defendant). See generally Ford v. U.S., 856 A.2d 591, 592 (D.C. 2004) ("[W]e are not persuaded that the giving of a 'reasonable efforts' instruction in this case added an element of coercion that would require reversal of appellant's conviction."); U.S. v. Allen, 755 A.2d 402, 411-12 (D.C. 2000) (Double Jeopardy Clause does not bar retrial of defendant where the jury expressly states it is unable to reach agreement on the greater offense, court gives a "reasonable efforts" instruction, and court then declares a mistrial as to the greater offense after the jury finds the defendant guilty of the lesser offense). The District of Columbia Court of Appeals has determined that an "acquittal first" instruction is impermissibly coercive when given to a deadlocked jury. Jones v. U.S., 544 A.2d 1250, 1254 (D.C. 1988) ; see also Wright v. U.S., 588 A.2d 260, 262 (D.C. 1991) ("where timely requested, the trial court should give an instruction which allows the jury to consider the lesser included offense, if unable to reach a verdict on the greater offense, after making all reasonable efforts to do so"); Carmichael v. U.S., 363 A.2d 302, 303-04 (D.C. 1976) . Miscellaneous issues The court in Epperson suggested that it may be permissible for a judge to give a modified Winters instruction before the jury begins its deliberations, as suggested by the ABA in Standards for Criminal Justice, Trial by Jury, Standard 15-4.4 and Commentary (2d ed. 1980). Epperson v. U.S., 495 A.2d 1170, 1175 (D.C. 1985) (giving an anti-deadlock instruction before the jury begins deliberation "can do no harm and may conceivably head off a 'hung jury' situation later on"). See generally 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 20.08 (5th ed. 2000). Cf. Capitol Hill Hospital v. Jones, 532 A.2d 89 (D.C. 1987) (use of Winters instruction in civil case); Smith v. Rogers Memorial Hospital, 382 A.2d 1025 (D.C. 1978) (use of modified Allen charge in civil case). Cross references: No. 2.401, Where Jury is to Be Charged on a Lesser Included Offense in an Indictment; No. 2.509, Communications Between Court and Jury During Jury's Deliberations; No. 2.600, Court Interaction with Jury During Deliberations--Note; No. 2.603, Return of the Jury After Polling.
Page 186
87 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions F. During Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.602 Instruction 2.602 INSTRUCTIONS TO JURY BEFORE POLLING
I am going to ask each of you, by seat number, if you agree with the verdict[s] as stated by your foreperson. We do this to make sure your verdict[s] [is][are] unanimous. If you agree with [all] the verdict[s], simply say "yes" when I call your seat number. If you disagree with [any of] the verdict[s], simply say "no when I call your seat number.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. Cross references: No. 2.603, Return of the Jury After Polling.
Page 187
88 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions F. During Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.603 Instruction 2.603 RETURN OF THE JURY AFTER POLLING
In the polling of the jury, it has become apparent that you may not have reached a unanimous verdict. For this reason, I am asking you to return to the jury room for further consideration of your verdict. If you are unanimous, your foreperson should send me a note indicating that, and I will poll you again. If you are not unanimous, please resume deliberations and see if you can reach a unanimous verdict. [It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.] [In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.]____________________________________ Comment: Paragraph one of this instruction is intended for use where a poll of the jury reveals lack of unanimity in the verdict and the court determines that further deliberations are appropriate. See Super. Ct. Crim. R. 31(d) ("If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged."); Headspeth v. U.S., 910 A.2d 311, 319-20 (D.C. 2006) (trial court properly instructed jury to retire for further deliberation after jury poll revealed lack of unanimity, but failed to further instruct jury not to consider punishment in determining guilt or innocence). But see Lumpkin v. U.S., 586 A.2d 701, 704 (D.C. 1991) (no plain error for court to order further deliberations without any cautionary instruction, where no such instruction was even requested); Artis v. U.S., 505 A.2d 52, 58 (D.C. 1986) (court not required to give sua sponte any further instructions when it tells jury to resume deliberations regarding non-unanimous count).
The last two bracketed paragraphs are not ordinarily required, but they have been recommended by the Court of Appeals for use in cases where there is a particularly high likelihood of juror coercion. See, e.g., Crowder v. U.S., 383 A.2d 336, 342 n.11 (D.C. 1978) (twelfth juror is lone dissenter); Perkins v. U.S., 473 A.2d 841, 845 n.4 (D.C. 1984) (use of the bracketed language approved where court directed jury to resume deliberations after poll revealed that juror number ten disagreed with the verdict on the fifth of five counts). See also Green v. U.S., 740 A.2d 21, 29 (D.C. 1999) ("From the instruction and its commentary emerges a baseline assumption that at least some, if not the majority, of poll breakdowns do not indicate such a high potential for undue coercion that additional instruction [beyond the first paragraph] is required. We think this assumption is correct and that the situation presented here to the trial court was not one where any additional instruction was mandated on pain of reversal."); Harris v. U.S., 622 A.2d 697 (D.C. 1993) (approved trial court's giving of an instruction, which included the elements suggested in Crowder, after the twelfth juror disagreed with part of the verdict during the poll). The trial court has substantial discretion over the manner in which the jury is polled and the manner in which jurors' responses are interpreted. See Pounds v. U.S., 529 A.2d 791, 796 (D.C. 1987) (court not obligated to poll jury sua sponte where counsel fails to request jury poll); Arnold v. U.S., 511 A.2d 399, 417 (D.C. 1986) (a poll that considered eight counts at once not an abuse of discretion); Johnson v. U.S., 470 A.2d 756, 759 (D.C. 1983) (no error for judge to accept juror's response of "Guilty, I guess" given context of the remark); Crowder, 383 A.2d at 341 ("Rule 31(d) vests the trial court with a measure of discretion" in the conduct of a jury poll); Jackson v. U.S., 377 A.2d 1151, 1153 n.4 (D.C. 1977) (no error to accept juror's vote where juror misstated his vote and corrected himself after the court repeated its question and admonished the juror to listen carefully); U.S. v. Mathis, 535 F.2d 1303, 175 U.S. App. D.C. 341, 345 (1976) (decision to take one poll with respect to both co-defendants not error where trial was short and uncomplicated); Williams v. U.S., 419 F.2d 740, 747, 136 U.S. App. D.C. 158, 165 (1969) (courts should use simple language when polling the jury to decrease the likelihood of confusion); Jackson v. U.S., 386 F.2d 641, 642, 128 U.S. App. D.C. 214, 215 (1967) (no error for court to accept juror's response of "I went along with the majority" because it was clarified when the court asked her if she meant "Guilty?" and she replied "Yes".). Where the transcript does not clearly show that all twelve jurors were polled, a trial court's factual finding that all of them assented to the verdict must be based on more than an unsworn letter from the Deputy Director of the Court Reporting and Recording Division. Jenkins v. U.S., 870 A.2d 27 (D.C. 2005) (remanded for further findings on the issue). In order for the court to remain ignorant of the jury's numerical division, a jury poll should be discontinued as to any count where a juror expresses disagreement with the verdict on that count, unless defense counsel expressly requests that the poll be continued. See Artis, 505 A.2d at 57-58 (in six-count case, no error for court to continue polling jurors on five counts, after juror one dissented on one count only); Perkins, 473 A.2d at 846 (continued polling "preclude[d] ... only on those counts as to which disagreement has been registered"); Ellis v. U.S., 395 A.2d 404, 408 (D.C. 1978) (no reversible error, in case involving two defendants and multi-count indictment, for court to poll jurors eleven and twelve on overall verdicts after juror ten dissented on one count against one defendant); Kendall v. U.S., 349 A.2d 464, 466 (D.C. 1975) (court's failure to terminate poll after juror one dissented on first of seven counts was reversible error and created an impermissible atmosphere of coercion); Jones v. U.S., 273 A.2d 842, 845 (D.C. 1971) (where juror number one disagreed with verdict on second of two counts, error for judge to interrogate dissenting juror and to poll remaining jurors on that count); In re Pearson, 262 A.2d 337, 340 (D.C. 1970) (in a one count case, "after a juror's dissent is clearly registered, further polling is unnecessary and, in the absence of a contrary request by defense counsel, is error"); U.S. v. Brooks, 420 F.2d 1350, 1354, 137 U.S. App. D.C. 147, 151 (1969) (no reversible error where defense counsel "requested that polling continue after the jury's apparent lack of unanimity was revealed"). When the twelfth juror is the lone dissenter, the court must be especially sensitive to the potential for juror
coercion. See Crowder, 383 A.2d at 342 (court should have declared mistrial where twelfth juror expressed unequivocal dissent). Once a poll is requested, the verdict is determined by the results of the poll, not by the verdict previously announced by the foreperson. See Jones, 273 A.2d at 844 . When a juror expresses uncertainty or confusion during a poll, the court should not pressure the juror to give an unequivocal answer; rather, the court should attempt to resolve the ambiguity or return the jury to the jury room to resume its deliberations. See U.S. v. McCoy, 429 F.2d 739, 741, 139 U.S. App. D.C. 60, 63 (1970) (when jurors were asked if verdict was theirs and one juror said, "Yes, with a question mark?," trial judge improperly ordered the juror to answer "yes" or "no" without permitting juror to state her question); Williams v. U.S., 419 F.2d 740, 746, 136 U.S. App. D.C. 158, 164 (1969) (en banc) (where juror became confused during polling, "court acted within its discretion when it asked the jury 'to retire back to the jury room and notify the court when they are ready to give a unanimous verdict' "); Matthews v. U.S., 252 A.2d 505, 506 (D.C. 1969) (court should not have instructed juror to answer "Guilty" or "Not guilty" after juror stated that her vote was conditional); Solar v. U.S., 86 A.2d 538, 541 (D.C. 1952) ("when the individual juror expressed doubt as to her verdict, the judge ... should have sent the jurors back for further deliberation"). Once a jury resumes its deliberations, the court may accept a unanimous verdict as soon as the jury indicates that one has been reached. See U.S. v. Wolford, 444 F.2d 876, 887-88, 144 U.S. App. D.C. 1, 12 (1971) . Polling the jury is a "critical stage" of the trial, requiring the presence of both defendant and defense counsel. See Headen v. U.S., 373 A.2d 599 (D.C. 1977) ; McCoy, 139 U.S. App. D.C. at 63, 429 F.2d at 742 . Finally, despite a foreperson's announcement of guilty verdicts on some counts and a not guilty verdict on another count, a defendant's right to be protected against double jeopardy is not infringed when the jury resumes deliberations on all counts because a jury poll reveals confusion and a lack of unanimity among jurors on the findings of guilt. See Thomas v. U.S., 544 A.2d 1260 (D.C. 1988) (trial court is obliged to accept unanimous verdict of not guilty once jury has spoken finally and unambiguously). Cross references: No. 2.505, Possible Punishment Not Relevant; No 2.509, Communications Between Court and Jury During Jury's Deliberations; No 2.600, Court Interaction with Jury During Deliberations--Note; No 2.601, When Jurors Cannot Agree.
Page 190
89 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. II. Final Instructions F. During Deliberations 1-II Criminal Jury Instructions for DC Instruction 2.604 Instruction 2.604 COMMENT ON VERDICT--NOTE
The trial judge may thank the jurors for their public service but should not praise or criticize the verdict reached by them. See Grady v. U.S., 376 A.2d 437 (D.C. 1977) ; U.S. v. Kyle, 469 F.2d 547, 152 U.S. App. D.C. 141 (1972) ; ABA Standards for Criminal Justice, Trial by Jury, 15-4.6 (2d ed. 1980 & Supp. 1986); 1 O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 9.08 (5th ed. 2000). Cf. Powers v. Ohio, 499 U.S. 400, 406-07 (1991) (reaffirming value and importance of jury service by individual citizens); U.S. v. Harvey, 377 A.2d 411 (D.C. 1977) , aff'd en banc, 392 A.2d 1049 (D.C. 1978) .
Page 191
90 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.100 Instruction 3.100 DEFENDANT'S STATE OF MIND--NOTE
In the 2008 release, the Committee replaced former Instruction No. 3.01, Intent--Note, Instruction No. 3.03, Knowingly--Note, and Instruction No. 3.04, Willfully--Note, with this Note. Since a defendant's state of mind is almost always an element of the offense, the Committee continues its practice of recommending that judges define the precise mental state applicable to the offense charged, as an element of the offense requiring proof beyond a reasonable doubt, and provides no independent instructions covering a defendant's mental state. The language used by statutes, particularly the older statutes, is not always consistent or precise, which can cause confusion. The Committee has tried to determine the applicable states of mind for each offense by consulting applicable case law. Where no such controlling case law exists, such as for some of the new statutes, the Committee has attempted to determine the required states of mind from the statutes themselves. Judges and parties are encouraged to carefully consider the required states of mind for such offenses and make their own determination. The Committee has tried to simplify the elements relating to states of mind and make them more consistent. For offenses that have been understood to be "general intent" crimes, the Committee has settled on describing the required state of mind as the defendant having acted "voluntarily and on purpose, not by mistake or accident." When a "specific intent" is required, the Committee has described the element as the defendant "intended to" cause the required result. Likewise, when specific knowledge is required, the Committee has described the element as the defendant "knew" the required fact. Other states of mind can be more complex, but the Committee has tried to set them out in language understandable to juries. For that reason, the Committee has generally chosen to avoid many traditional "legal" terms such as "general intent," "specific intent," "malice," and "reckless" as more confusing than helpful to juries.
Page 192
91 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.101 Instruction 3.101 PROOF OF STATE OF MIND
Someone's [intent] [knowledge] [insert other appropriate state of mind] ordinarily cannot be proved directly, because there is no way of knowing what a person is actually thinking, but you may infer the someone's [intent] [knowledge] [other appropriate state of mind] from the surrounding circumstances. You may consider any statement made or acts [done] [omitted] by [name of the defendant], and all other facts and circumstances received in evidence which indicate his/her [intent] [knowledge] [other appropriate state of mind]. [You may infer, but are not required to infer, that a person intends the natural and probable consequences of acts s/he intentionally did or did not do.] It is entirely up to you, however, to decide what facts to find from the evidence received during this trial. You should consider all the circumstances in evidence that you think are relevant in determining whether the government has proved beyond a reasonable doubt that [name of the defendant] acted with the necessary state of mind.____________________________________ Comment: Given the Committee's approach in these instructions, suggesting that references to "specific intent" and "general intent" no longer be used, and that the jury be instructed as to the specific states of mind required by the elements of the offense, this instruction refers more generally to a defendant's state of mind, as well as to the specific mens rea required for a particular offense. See Note 3.100. No changes were made in the Fifth Edition. The first bracketed sentence in the second paragraph is appropriate only if "intent" is the requisite state of mind; it makes explicit that while the jury may make such inferences, it is not required to do so. See Morissette v. U.S., 342 U.S. 246, 274-75 (1952) . See also U.S. v. Moore, 435 F.2d 113, 115, 140 U.S. App. D.C. 309, 311 (1970) . Compare Mitchell v.., 434 F.2d 483, 140 U.S. App. D.C. 209 (1970) and Green v. U.S., 405 F.2d 1368, 132 U.S. App. D.C. 98 (1968) (clearly erroneous to tell jury that law presumes a person intends the natural and probable consequences of his acts, rather than that the jury has
Page 193 1-III Criminal Jury Instructions for DC Instruction 3.101
right to draw such an inference or not, as it sees fit). Cross reference: No. 3.100, Defendant's State of Mind--Note.
Page 194
92 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.102 Instruction 3.102 WILLFULLY CAUSING AN ACT TO BE DONE
18 U.S.C. 2(b)
You may find [name of defendant] guilty of the crime charged in the indictment without finding that s/he personally committed each of the acts constituting the offense or was personally present at the commission of the offense. A defendant is responsible for an act which s/he willfully causes to be done if the act would be criminal if performed by him/her directly or by another. To "cause" an act to be done means to bring it about. You may convict [name of defendant] of the offense charged if you find that the government has proved beyond a reasonable doubt each element of the offense and that [name of defendant] willfully caused such an act to be done, with the intent to commit the crime.____________________________________ Comment: No changes were made in the Fifth Edition. See generally Fraley v. U.S., 858 F.2d 230, 233 (5th Cir. 1988) ; U.S. v. Cook, 745 F.2d 1311 (10th Cir. 1984) (an individual can be criminally culpable for causing an intermediary to commit a criminal act even though the intermediary has no criminal intent and is innocent of the substantive crime); U.S. v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978) ; U.S. v. Deaton, 563 F.2d 777, 778 (5th Cir. 1977) ; U.S. v. Ordner, 554 F.2d 24, 29 (2d Cir. 1977) ; U.S. v. Rapoport, 545 F.2d 802, 805-06 (2d Cir. 1976) ; U.S. v. Lester, 363 F.2d 68 (6th Cir. 1966) ; Pereira v. U.S., 202 F.2d 830 (5th Cir. 1953) , aff'd, 347 U.S. 1 (1954) ; U.S. v. Bradley, 540 F. Supp. 690 (D. Md. 1982) (a person may be a causer of a crime under this section regardless of the culpability of the other through whom he acts).
Page 195
93 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.103 Instruction 3.103 "ON OR ABOUT"--PROOF OF
The [indictment] [information] charges that the offense of [describe offense] was committed "on or about" [date of offense]. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction should be given where an issue of fact as to the date of the offense is presented by the evidence, or where there is a variance between the date alleged in the information or indictment and the date proved by the evidence. See Ledbetter v. U.S., 170 U.S. 606, 612 (1898) (unnecessary to prove that offense was committed on day alleged, unless statute creating the offense made a particular day material or unless defendant was misled); Ingram v. U.S., 592 A.2d 992 (D.C. 1991) (when an indictment charges that the offense occurred "on or about" a certain date, a defendant is on notice that a particular date is not critical; evidence will conform to the indictment in such circumstances if it establishes that the offense was committed on a date reasonably close to the one alleged); Jeffcoat v. U.S., 551 A.2d 1301 (D.C. 1988) (inconsistency of approximately one day between date of offense as noted in the information and the date established by the trial testimony did not warrant reversal). See generally Williams v. U.S., 756 A.2d 380, 389 (D.C. 2000) (when an indictment charges that an offense occurred "on or about" a date or range of dates, the "evidence will conform to the indictment in such circumstances if it establishes that the offense was committed on a date reasonably close to the one alleged"); Pace v. U.S., 705 A.2d 673 (D.C. 1998) (in jury instructions for offenses against minors, relatively imprecise descriptions of time are allowed in recognition of the inability of minors to identify exact times and places).
Generally, there is little purpose in giving this instruction when the government's proof has focused on a specific date, or specific dates for multiple offenses. However, normally the giving of the instruction under such circumstances would be harmless error since there is little likelihood that the jury will speculate that the offense or offenses occurred on a different date or dates. See Green v. U.S. 544 A.2d 714 (D.C. 1988) (where information charged "on or about" given date, and there were two incidents, one early that morning and one late in evening, no plain error to fail to give unanimity instruction where all of the evidence focused on second event); People v. Daniels, 147 N.E. 662, 662 (Ill. 1925) . But see U.S. v. Thomas, 459 F.2d. 1172, 1177, 148 U.S. App. D.C. 148, 153 (1972) (where government permitted to introduce evidence of prior acts of cruelty to support case on charged offense, it was error to give "on or about" instruction which might have permitted jury to convict on basis of prior acts). One particular situation which courts have found troubling is the situation where the government's proof has focused on a particular date and the defendant presents an alibi defense for that date. In some cases, courts have found the giving of the "on or about" instruction to be reversible error, see State v. Sonen, 492 N.W.2d 303, 304-06 (S.D. 1992) ; State v. Infante, 596 A.2d 1289, 1291 (Vt. 1991) ; State v. Rallo, 403 S.E.2d 653, 655 (S.C. 1991) ; State v. Kenney, 35 Ohio App. 3d 84, 519 N.E.2d 1386, 1396 (Ohio App. 1987) ; Jackson v. State, 350 So.2d 808, 809 (Fla. App. 1977) ; People v. Brocato, 169 N.W.2d 483, 487-88 (Mich. App. 1969) . In U.S. v. Cicero, 22 F.3d 1156, 1160-61, 306 U.S. App. D.C. 74 (1994) , the court concluded "[I]f the defense reasonably contends that the government's proof focuses on one or more specific dates, and the defense presents an alibi for those dates, the jury should be given additional guidance in reconciling the parties' positions. Rather than forbidding the trial court from issuing an "on or about" instruction in such instances, we suggest that an intermediate instruction should be provided, directing jurors to consider whether the government's proof has in fact focused on specific dates, and, if so, whether the defendant's alibi credibly addresses those dates." Accord People v. Suter, 685 N.E.2d 1023, 1029 (Ill. App. 1997) (recognizing appropriateness of "intermediate" instruction).
Page 197
94 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.104 Instruction 3.104 POSSESSION--DEFINED
A. WHERE THE GOVERNMENT ALLEGES SOLE ACTUAL POSSESSION Possession means to have physical possession or to otherwise exercise control over tangible property. A person may physically possess by holding it in his or her hand or by carrying it in or on his or her body or person. Mere presence near something or mere knowledge of its location, however, is not enough to show possession. To prove possession of [describe item] against [name of defendant] in this case, the government must prove beyond a reasonable doubt that s/he had physical possession of it. B. WHERE THE GOVERNMENT ALLEGES SOLE ACTUAL OR CONSTRUCTIVE POSSESSION Possession means to have physical possession or to otherwise exercise control over tangible property. A person may possess property in either of two ways. First, the person may have physical possession of it by holding it in his or her hand or by carrying it in or on his or her body or person. This is called "actual possession." Second, a person may exercise control over property not in his or her physical possession if that person has both the power and the intent at a given time to control the property. This is called "constructive possession." Mere presence near something or mere knowledge of its location, however, is not enough to show possession. To prove possession of [describe item] against [name of defendant] in this case, the government must prove beyond a reasonable doubt that s/he had either actual or constructive possession of it. C. WHERE THE GOVERNMENT ALLEGES JOINT ACTUAL OR CONSTRUCTIVE POSSESSION Possession means to have physical possession or to otherwise exercise control over tangible property. A person may possess property in either of two ways. First, the person may have physical possession of it by holding it in his or her hand or by carrying it in or on his or her body or person. This is called "actual possession." Second, a person may exercise control over property not in his or her physical possession if that person has both the power and the intent at a given time to control the property. This is called "constructive possession."
In addition, the law recognizes the possibility that two or more individuals can jointly have property in their constructive possession. Two or more persons have property in their joint constructive possession when they each have both the power and the intent at a given time to control the property. Mere presence near something or mere knowledge of location, however, is not enough to show possession. To prove possession of [describe item] against [name of defendant] [a specific defendant] in this case, the government must prove beyond a reasonable doubt that s/he had either actual or constructive possession of [it] [them]. ____________________________________ Comment: The Committee reorganized this instruction in the 2008 release to create the three subsections for the various kinds of possession that the government may allege. To simplify this instruction, the Committee recommends giving only the instruction which conforms to the proof offered by the government. Thus, there is no need to instruct the jury on joint possession or constructive possession where the proof shows sole actual possession. No changes were made in the Fifth Edition. In previous editions, the Committee recommended deletion of the term "dominion" from this instruction. "Dominion," which is not used in everyday speech, may create misunderstanding, especially among lay jurors, and adds nothing intellectually distinct to the concept of "control." The Committee adheres to this view. The decision of the Court of Appeals in Rivas v. U.S., 783 A.2d 125, 128 (D.C. 2001) (en banc), made clear that intent to control the object, as well as the power to control it, is an essential element that the government must prove beyond a reasonable doubt if it is relying on a theory of constructive possession. The Rivas Court rejected the idea of an "automobile exception" to "the settled general rule that knowledge and proximity alone are insufficient to prove constructive possession of drugs beyond a reasonable doubt." The Court held "[a]s in all other constructive possession cases, there must be something more in the totality of the circumstances--a word or deed, a relationship or other probative factor--that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the passenger intended to exercise dominion or control over the drugs, and was not a mere bystander." Id. (emphasis in original). See also Guishard v. U.S., 669 A.2d 1306, 1312 (D.C. 1995) ("To obtain a conviction based on a theory of constructive possession, the government must prove that the defendant knew of the location of the contraband, that he had the ability to exercise dominion and control over it, and that he 'intended to guide [its] destiny.' "). Cross references: No. 2.109, Direct and Circumstantial Evidence; No. 2.320, Inference From the Possession of Recently Stolen Property; No. 4.300, Robbery; No. 5.300, Theft; No. 5.355, Unlawful Possession of Stolen Mail; No. 5.403, Possession of Implements of Crime; No. 6.200, Possession of a Controlled Substance; No. 6.201, Possession of Controlled Substance with Intent to Distribute; No. 6.503, Possession of a Prohibited Weapon; No. 6.504, Possession of an Unregistered Firearm; No. 6.505, Possession of Ammunition; No. 6.510, Possession of a Firearm During the Commission of a Crime of Violence or Dangerous Crime; No. 6.551, Gun Control Act--Possession of Unregistered Firearm; No. 6.552, Gun Control Act--Possession of Firearm Unidentified by Serial Number; No. 6.553, Gun Control Act--Possession of a Firearm by a Convicted Felon.
Page 199
95 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.105 Instruction 3.105 PROOF OF VALUE
You must decide whether the value of the [property] [written instrument] allegedly involved in this case was $_______or more. Value means fair market value at the time when and the place where the property was allegedly [obtained] [used] [received] [possessed] [bought] [lost] [damaged] [destroyed] [the object of the scheme or systematic course of conduct]. Fair market value is the price that a buyer who is willing but not required to buy would pay to an owner who is willing but not required to sell, considering all the ways the property could reasonably be used. "Value" with respect to a credit card, check, or other written instrument means the amount of money, credit, debt, or other tangible or intangible property or services that has been or can be obtained through its use, or the amount promised or paid by the credit card, check, or other written instrument. The term "property" includes credit, debt, and a government-issued license, permit, or benefit. Do not speculate or guess at the value of the property. Base your determination only on the evidence. [Where only as portion of property is damaged or destroyed, the fair market value of the damaged or destroyed property is measured by the cost of repairing or the cost of replacing the property, whichever is less.] [The government has alleged that the property was [(obtained) (used) (received) (possessed) (bought) (lost) (damaged) (destroyed) in] [the object of] a single scheme or systematic course of conduct, and that the total value of the property was [$200/$250/$1000 or more]. Before you find that the value of the property was [$200/$250/$1000 or more] by adding up the values of individual items of property, you must first all agree beyond a reasonable doubt that there was a single scheme or systematic course of conduct, and then before the value of an individual item is added to the total value, you must all agree that the item was [(obtained) (used) (received) (possessed) (bought) (lost) (damaged) (destroyed) in] [the object of] a part of the scheme or systematic course of conduct.] [Further, each item must have been obtained by the defendant within a period of seven consecutive days.]____________________________________
Comment: The 2010 release amended the instruction to account for the Omnibus Public Safety Amendment Act of 2009. The 2010 release added new definitions of value and property to reflect the changes in the Crime Bill Emergency Amendment Act of 2009, which went into effect on June 29, 2009, and which was later incorporated into the Public Safety and Justice Amendment Act of 2009. The 2010 release also added alternative values in the final bracketed paragraph to reflect the new $1000 threshold for the felony offenses of theft, credit card fraud, and identity theft. It remains $250 for forgery, fraud, insurance fraud, and receiving stolen property, and at $200 for destruction of property. The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. For the ordinary case where value is obvious, the Committee recommends not giving an instruction beyond requiring proof of "value". The basic instruction regarding proof of value remains substantially the same, except for changes for clarity and succinctness. The bracketed material offers a choice of words depending on what crime is charged. Thus, for theft the choices are "wrongfully obtained" and "wrongfully obtained or used"; for receiving stolen property, "received," "possessed" and "bought"; for fraud, "obtained," "lost," and "the object of the scheme or systematic course of conduct"; for credit card fraud, "obtained"; and for forgery and uttering, "value of the written instrument". In addition, since this instruction will be used in conjunction with the charge of malicious destruction or property, the choice of "injured or destroyed" is given. The language on fixing fair market value is based on Nichols v. U.S., 343 A.2d 336, 341 (D.C. 1975) . See also Williams v. U.S., 376 A.2d 442, 444 (D.C. 1977) . This instruction is appropriate in destruction-of-property cases where the entire property has been destroyed. Where only a portion of the property is destroyed or damaged, or where the portion may be repaired without impairment of the whole property's purpose or utility, the first bracketed paragraph should be given. See id. at 341-42 and n. 3. The language on fixing fair market value also is appropriate for cases arising under the Theft and White Collar Crimes Act in which the government needs to prove value and it does not seek to aggregate the values of two or more items of property for purposes of establishing a predicate for a felony sentence. Under D.C. Official Code 22-3202 (2001), however, the fact-finder may aggregate "[a]mounts received pursuant to a single scheme or systematic course of conduct" in cases of theft, fraud and credit card fraud. Thus, where the government does seek a felony sentence in such cases and aggregation of two or more items would be needed to establish the amount of $250 or more, the judge should use the instruction in the second bracketed paragraph. The instruction attempts to assure unanimity on the issue of whether the items whose values are aggregated were taken pursuant to a scheme or systematic course of conduct. The last bracketed sentence applies only to aggregation in credit card fraud cases. In Eldridge v. U.S., 492 A.2d 879, 881-82 (D.C. 1985) , the Court of Appeals held that the requirements for proof of value in cases of grand larceny under prior law applied in toto to cases of first-degree theft under the Theft and White Collar Crimes Act of 1982. See, e.g., Malloy v. U.S., 483 A.2d 678, 680-81 (D.C. 1984) . The Committee is of the view that the law on proof of value in cases other than theft-- see, e.g., Salim v. U.S., 480 A.2d 710, 716 (D.C. 1984) (receiving stolen property)--would also apply in cases arising under the Theft and White Collar Crimes Act. The District of Columbia Court of Appeals has "been very strict in requiring affirmative proof of value, especially when the value alleged is close to the line dividing one offense from another... . Because of the
important difference between a misdemeanor and a felony conviction, [the] court has been careful to require substantial probative evidence of value at the time of the theft." Zellers v. U.S., 682 A.2d 1118, 1121 (D.C. 1996) (citation and internal quotation marks omitted). As a result, the specific value of an item needs to be proved with precision. In 2003, the en banc Court of Appeals "clarifie[d] language used in [its] proof of value cases that may have fostered a misimpression, namely, that some sort of 'super proof' is required in the proof of the element of value." Hebron v. U.S., 837 A.2d 910, 911 (D.C. 2003) (en banc). It held that "the same uniform and familiar standard of evidentiary sufficiency applies to proof of value that applies to any other element in of the charged offense, namely, proof beyond a reasonable doubt." Id. (citing cases). The Court pointed out that "[t] he matter to be determined is not the absolute value of the items stolen ... Rather the proof must only show that the value, whatever it may be in absolute terms, exceeded the statutory minimum [for that offense]." Id. at 913 . The Court cautioned that "when the proof indicates a value nearing that minimum, such proof may need to be offered with greater precision." Id. The Court added that the jury "should not be precluded from drawing reasonable inferences from an item's purchase date and price when determining, on the totality of the facts and circumstances, whether the government has met its burden of proving value." Id. at 914 . The Court concluded by stating: "In sum and consistent with the historical origins of our rule, the government need not prove value in first degree theft and like offenses with any 'strictness' or 'precision' greater than any other element of the offense. ..." Id. As discussed above, "value" in this context refers to the fair market value of the property. See Chappelle v. U.S., 736 A.2d 212, 215 (D.C. 1999) . Frequently, testimony focuses on the purchase price of the stolen goods, but "purchase price is not necessarily equivalent to value." Zellers, 682 A.2d at 1122 . When evaluating purchase price testimony from owners, the courts consider: "whether the purchase was very recent, whether the chattel was in mint condition, and whether the chattel was subject to prompt depreciation or obsolescence." Chappelle, 736 A.2d at 215 . But regardless of whether the owner testifies or some other method is used to prove value, "[t]he government must introduce evidence of value ... sufficient to eliminate the possibility that the jury's verdict was based on surmise or conjecture about the value of the property." Terrell v. U.S., 721 A.2d 957, 959 (D.C. 1998) (citations and internal quotation marks omitted). As a result, the government must introduce evidence concerning either the condition of the stolen items or the furniture's depreciation rate. The issue of value normally should not be submitted to the jury where the only evidence produced as to value is the physical presence of the property and the owner's statement of the original cost. See Malloy v. U.S., 483 A.2d 678, 680 (D.C. 1984) ; Boone v. U.S., 296 A.2d 449, 450 (D.C. 1972) ; U.S. v. Thweatt, 433 F.2d 1226, 140 U.S. App. D.C. 120 (1970) . However, such evidence may be sufficient where the property was recently purchased at a price well in excess of the value needed to be established, was in mint condition at the time of the theft, and was not subject to prompt depreciation or obsolescence. Malloy, 483 A.2d at 680 n. 2 , citing and quoting In re J.T.F., 320 A.2d 322, 325 (D.C. 1974) . Compare Moore v. U.S., 388 A.2d 889, 891 (D.C. 1978) (evidence that property was in "almost mint" condition at time of theft insufficient). Market value of a chattel may be established by testimony of its non-expert owner. Malloy, 483 A.2d at 680 n. 3 ; In re R.D.J., 348 A.2d 301, 304 (D.C. 1975) ; Saunders v. U.S., 317 A.2d 867, 868 (D.C. 1974) . The owner should testify as to market value, not as to the value of the property to the owner. U.S.v. Robinson, 698 F.2d 448, 456, 225 U.S. App. D.C. 282, 290 (1983) . The testimony of a management employee is generally acceptable. Id. But a security guard, for example, is not competent to testify based on his or her recollection of the prices on price tags because the security guard has no knowledge of the pricing system. Eldridge, 492 A.2d at 882-83 . In cases in which the sentence does not depend on the grade of the offense, the government need not prove a specific monetary value, Leftridge v. U.S., 410 A.2d 1388, 1391 n. 6 (D.C. 1980) , but only that
the item had "value," defined as " 'any value at all, although less than the smallest coin.' " Jones v. U.S., 345 A.2d 144, 145-46 (D.C. 1975) (citation omitted). The value of an item is determined by its " 'useful functional purpose' " at the time of the crime. Jeffcoat v. U.S., 551 A.2d 1301, 1303 (D.C. 1988) (quoting Jenkins v. U.S., 374 A.2d 581 (D.C. 1977)) . See, e.g., Jones, 345 A.2d at 145 (proof of monetary cost of license tags and that they were current sufficient to show they had a "use value"); cf. In re S., 434 A.2d 461 (D.C. 1981) (failure to adduce any evidence of value of license tags). See generally Wittenberg v. U.S., 366 A.2d 128, 132 (D.C. 1976) (value must be alleged in indictment where punishment depends on grade of offense); Roldan v. U.S., 353 A.2d 292, 295 (D.C. 1976) (evidence of value sufficient); In re V.L.M., 340 A.2d 818, 820 (D.C. 1975) (usable credit card has some value); Barnes v. U.S., 313 A.2d 106 (D.C. 1973) (proof of some value necessary to establish misdemeanor). Cross references: No. 2.401, Where Jury is to be Charged on a Lesser Included Offense of a Count in an Indictment; No. 3.106, Property or Property of Another--Defined.
Page 203
96 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability A. Definitions 1-III Criminal Jury Instructions for DC Instruction 3.106 Instruction 3.106 PROPERTY OR PROPERTY OF ANOTHER--DEFINED
D.C. Official Code 22-1802, 22-3201 (2001) A. PROPERTY (COMMON LAW OFFENSES) "Property" means anything of value which is capable of being possessed. The term "property" includes [choose an appropriate definition]: 1. Land, including things built on, growing on, or attached to it. 2. Physical personal property. 3. Writings or other documents that represent value, to include: a. Money b. Checks c. Stocks d. Bonds e. Other commerical paper f. Documents which prove a legal right to control other forms of property, even if shared with others, such as deeds, leases, trusts, and other similar documents.
B. PROPERTY (OFFENSES UNDER CHAPTER 32 OF TITLE 22) "Property" means anything of value. The term "property" includes [choose an appropriate definition]: 1. Land, including things built on, growing on, or attached to it. 2. Physical personal property. 3. Writings or other documents that represent value, to include: a. Money b. Checks c. Stocks d. Bonds e. Other commerical paper f. Documents which prove a legal right to control other forms of property, even if shared with others, such as deeds, leases, trusts, and other similar documents. 4. Services, which include [choose an appropriate definition]: a. Labor b. The use of vehicles or other equipment c. Transportation of persons or things d. Telecommunications e. Providing energy f. Providing water g. Providing sanitation services h. Providing other public utility services i. Providing food or beverages j. Providing lodging, or other accommodations k. Admission to public exhibitions l. Admission to places of entertainment m. Providing educational services
n. Provding hospital or medical services o. Other "related" services [specify]. C. PROPERTY OF ANOTHER ["Property of another" means any property in which [a person other than [name of defendant]] [a government] [a corporation] ["other legal entity established pursuant to interstate compact" [specify]] has a legal right. This legal right must be one with which (name of defendant) may not lawfully interfere unless [the other person] [the government] [the corporation] [the "legal entity"] consents, even if s/he also had some legal right in the property. ["Property of another" does not include property in the defendant's possession as to which another person had only a security interest.]] ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The Theft and White Collar Crimes Act of 1982, D.C. Official Code 22-3201 (2001), defined the terms "property" and "property of another" for purposes of offenses charged under Chapter 32 of Title 22 of the D.C. Official Code. The statutory definition of "property" was "intended to be broadly construed to insure that all forms of property are protected from unauthorized takings or uses." David A. Clarke, Chairperson, Committee on the Judiciary, Extension of Comments on Bill No. 4-133: The District of Columbia Theft and While Collar Crimes Act of 1982 (July 20, 1982). The common law distinctions between types of property were eliminated. Perhaps most significantly, for purposes of offenses under Chapter 32 of Title 22 of the D.C. Official Code the term "property" includes "services," which are, in turn, defined quite broadly. It is by no means clear that for common law offenses, such as robbery, arson and destruction of property, which are not contained in Chapter 32 of Title 22 of the D.C. Official Code, that the term "property" would be extended to services, although the Committee agrees that a broad definition of property would otherwise apply. For that reason, the Committee has recommended an instruction to be given for common law offenses that does not include "services," but otherwise includes a wide range of items as "property." It should be noted that the shoplifting statute, in contrast to the others, applies only to "personal" property of another, D.C. Official Code 22-3213(a) (2001). This term thus limits the broad definition of property applying to other offenses in Chapter 32. In many cases, no instruction defining "property" or "property of another" will be needed at all--where, for example, an item that is obviously of value, like a car or money, is involved. However, other cases, such as those involving intangible property or services, or cases involving competing legal interests, will call for an appropriate definition fitting the facts. The Committee recommends that the entire definitions not be read in each case, but rather the definition be tailored to the facts of the case. Moreover, since the definitions given, such as those for "property" and "services" for example are not intended to be exclusive, the judge may need to draft alternative language where the item in question does not fit any of the examples given. In the 2008 release, the Committee deleted the definition of "anything of value," which is also defined in the Theft and White Collar Crimes Act and at D.C. Official Code 22-1802 (2001), because the
definition of property includes those items listed in the definition. With respect to the term "of value," the court in Jeffcoat v. U.S., 551 A.2d 1301, 1303 (D.C. 1988) , recapitulating prior holdings, stated that the government need not show the item's specific monetary worth, but only that the item had "some value." Therefore, unless the statute requires proof of a specific value, as where theft is graded depending on the value of the property obtained, see Eldridge v. U.S., 492 A.2d 879, 881-82 (D.C. 1985) and cases cited, the government need prove only that the item had some value. In Jeffcoat the court further stated that "some value" was determined by the item's " 'useful functional purpose" and held that a bank check had some value even though the government did not prove that the maker had sufficient funds to cover it, reasoning, among other things, that the check had been used in the transaction at issue. If there is a factual issue as to whether, under Jeffcoat, an item has "some value," the court may need to include language taken from Jeffcoat telling the jury that an item must have some useful functional purpose. However, in most cases there will be no issue and no further instruction need be given other than defining property as "anything of value." The statutory definition of "property of another," D.C. Official Code 22-3201(4) (2001), compares the defendant's rights in the subject property to the rights of the complainant. See Moss v. U.S., 368 A.2d 1131 (D.C. 1977) . This very general formulation is necessary, as the provision consolidates offenses based on deceit with those historically considered crimes against possession. See Tibbs v. U.S., 507 A.2d 141, 144 (D.C. 1986) ("[L]arceny ... does (or did) require proof of possession.") Note that the identity of the "other" to whom the property belongs need not be proved with particularity. McEachin v. U.S., 432 A.2d 1212 (D.C. 1981) (affirming conviction under former larceny statute where defendant attempted to remove tools from Air Force base store, although goods not alleged to have been "taken from an identifiable entity"). Indeed, in several cases the Court of Appeals has stated explicitly that to prove "property of another" the government need only prove that "someone other than the defendant was the owner," Douglas v. U.S., 570 A.2d 772, 775-76 (D.C. 1990) ; Baldwin v. U.S., 521 A.2d 650 (D.C. 1987) ; Alston v. U.S., 509 A.2d 1129, 1131 (D.C. 1986) ; Carmon v. U.S., 498 A.2d 580, 583 (D.C. 1985) ; McEachin, 432 A.2d at 1217 . The statutory definition of "property of another," quoted above, may be necessary as part of the court's instructions when there is evidence suggesting that the defendant had an interest in the property, as, for example, where the defendant purchases property with borrowed funds, giving a security interest to another. See, e.g., Alston, 509 A.2d at 1130 n. 6 . However, in the ordinary theft, shoplifting, or taking-property-without-right case, where the evidence does not suggest that the defendant had an interest in the property, the Committee believes that the statutory definition need not be given. Rather, the court need only instruct that the government must prove that someone other than the defendant was the owner. With respect to "security interest," as used in the definition of "property of another," see D.C. Official Code 22-3201(4) (2001). Cross references: No. 3.105, Proof of Value; Nos. 5.300-5.308, Theft and Receipt of Stolen Goods.
Page 207
97 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability B. Theories of Liability 1-III Criminal Jury Instructions for DC Instruction 3.200 Instruction 3.200 AIDING AND ABETTING
D.C. Official Code 22-1805 (2001)
18 U.S.C. 2(a)
You may find [name of defendant] guilty of the crime charged in the indictment without finding that s/he personally committed each of the acts that make up the crime or that s/he was present while the crime was being committed. Any person who in some way intentionally participates in the commission of a crime can be found guilty either as an aider and abettor or as a principal offender. It makes no difference which label you attach. The person is as guilty of the crime as s/he would be if s/he had personally committed each of the acts that make up the crime. To find that a defendant aided and abetted in committing a crime, you must find that the defendant knowingly associated himself/herself with the commission of the crime, that s/he participated in the crime as something s/he wished to bring about, and that s/he intended by his/her actions to make it succeed. Some affirmative conduct by the defendant in planning or carrying out the crime is necessary. Mere physical presence by the defendant at the place and time the crime is committed is not by itself sufficient to establish his/her guilt. [However, mere physical presence is enough if it is intended to help in the commission of the crime.] [It is not necessary that you find that the defendant was actually present while the crime was committed.] The government is not required to prove that anyone discussed or agreed upon a specific time or method of committing the crime. [The government is not required to prove that the crime was committed in the particular way planned or agreed upon.] [Nor need the government prove that the principal offender and the person alleged to be the aider and abettor directly communicated with each other.]
[I have already instructed you on the elements of [each of] the offense[s] with which the defendant is charged. With respect to the charge of [name of offense], regardless of whether a defendant is an aider and abettor or a principal offender, the government must prove beyond a reasonable doubt that the defendant personally acted with [insert mens rea required for the charged offense] . [Repeat as necessary for additional offenses, e.g., with respect to the charge of [name of offense] , the government must prove beyond a reasonable doubt that each defendant personally acted with [insert mens rea] ]. [When there are alternate mental states that would satisfy the mens rea element of the offense, such as in second-degree murder (specific intent to kill or seriously injure or conscious disregard of an extreme risk of death or serious bodily injury), the Court may want to instruct that the principal and the aider and abettor do not need the same mens rea as each other.]] [Where felony murder based on a felony enumerated in D.C. Official Code 22-2101 is charged: [Solely with] [With] respect to the charge of felony murder [insert underlying felony], the government need not prove that the principal or the aider and abettor(s) had the specific intent to kill the decedent or that the principal and the aider and abettor(s) had the same intent as each other with respect to the killing. If two or more people, acting together, are committing or attempting to commit [insert underlying felony] and one of them, in the course of the felony and in furtherance of the common purpose to commit the [insert underlying felony], kills a human being, both the person who committed the killing and the person or persons who aided and abetted in the [specify the underlying felony] are guilty of felony murder. [A person who aids and abets the commission of [insert underlying felony] is guilty of felony murder for a killing that was committed in furtherance of a common purpose to commit that felony or a killing that was, in the ordinary course of things, a natural and probable consequence of acts done in committing that felony. But a person participating in a [insert underlying felony] is not guilty of first-degree felony murder if her/his accomplice kills the deceased in a separate and distinct act and to satisfy the accomplice's own ends.]] [With respect to possessory firearm offenses (see, e.g., PFCV 22-4501, CPWOL 22-4504): For [name of defendant] to be guilty of aiding and abetting the offense of [insert possessory firearm offense] , the government must prove beyond a reasonable doubt [both that s/he aided and abetted the commission of [insert name of crime of violence or dangerous crime] and also] that s/he aided and abetted the possession of a firearm. To aid and abet the possession of a firearm, [name of defendant] must have engaged in some affirmative conduct to assist or facilitate the principal's possession of a firearm.] [With respect to while armed offenses ( 22-4502): An aider and abettor is legally responsible for the principal's use of a weapon during an offense if the government proves beyond a reasonable doubt that the aider and abettor had actual knowledge that some type of weapon would be used to commit the offense. You may, but are not required to, infer that the aider and abettor knew that some type of weapon would be used to commit the offense from the surrounding circumstances. You may consider any statement made, acts [done] [not done], the reasonable foreseeability that some weapon would be required to commit the offense, and any other facts and circumstances received in evidence that indicate the aider and abettor's knowledge or lack of knowledge. [It is not necessary that all the people who committed the crime be caught or identified.] It is sufficient if you find beyond a reasonable doubt that the crime was committed by someone and that the defendant knowingly and intentionally aided and abetted in committing the crime.]____________________________________ Comment: A defendant who assists in the commission of a crime is guilty of that crime whether viewed as a principal or an aider and abettor. In many cases, no need exists to distinguish between principals and
aiders and abettors. The Committee retained from prior editions the elements of aiding and abetting set forth in the second paragraph. This formulation is consistent with current law. See Wilson-Bey v. U.S., 903 A.2d 818 (D.C. 2006) (en banc). The bracketed language in the third paragraph of the instruction concerning the sufficiency of mere presence to establish the defendant's guilt of aiding and abetting should be inserted where there is some evidence introduced that the defendant's mere presence was "intended to and [did] aid the primary actors." See Long v. U.S., 360 F.2d 829, 835, 124 U.S. App. D.C. 14, 20 (1966) . Accord Jefferson v. U.S., 463 A.2d 681, 683 (D.C. 1983) ; In re R.A.B., 399 A.2d 81, 83 (D.C. 1979) ; see also Wesley v. U.S., 547 A.2d 1022 (D.C. 1988) (evidence that defendant distracted robbery victims' lookout and stood 10 feet away in an elevated position during the robbery sufficient to sustain conviction for aiding and abetting robbery); Tyler v. U.S., 495 A.2d 1180, 1182 (D.C. 1985) (defendant could be convicted of burglary without his actual entry into building if his presence outside building aided actual perpetrators in commission of crime). In the fourth paragraph, the Committee bracketed the language in the second sentence to suggest that it need not be given except in cases where evidence of an agreement or discussion existed about how the crime was to be committed but it was not committed in the agreed-on way. The instruction from the 2004 edition was modified in the 2007 release. The previous bracketed paragraphs 5 and 6 were deleted and new bracketed paragraphs 5, 6, and 7 were added. The deletion of former bracketed paragraph 5 and its replacement with new bracketed paragraph 5 are changes intended to effectuate Wilson-Bey v. U.S., 903 A.2d 818 (D.C. 2006) (en banc); see also Kitt v. U.S., 904 A.2d 348 (D.C. 2006) . Wilson-Bey and Kitt hold that whether a defendant is a principal offender or an aider and abettor, she or he must have the mens rea required for the charged offense. Except in the case of felony murder based on an enumerated offense, Wilson-Bey and Kitt disapproved the former language--("It is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed, or that s/he have intended to commit the particular crime committed by the principal offender. An aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequences of the crime in which s/he intentionally participates.")--holding that it is unconstitutional to permit conviction based on a lesser mens rea for an aider and abettor than what the law requires for the principal offender. See Wilson-Bey, 903 A.2d at 837 , 843; Kitt, 904 A.2d at 354 , 356. To forestall jury confusion, the first three sentences of paragraph 5, which is bracketed and begins "I have already instructed you ...," should be given in all cases where the mens rea required for the charged offense(s) may not be adequately conveyed in the first two paragraphs of the aiding and abetting instruction. For example, if the charged offense is premeditated first-degree murder, bracketed paragraph 5 should be given because the language "[a]ny person who in some way intentionally participates in the commission of a crime" and "knowingly associated herself/himself with the commission of the crime" may not be understood by the jury to convey the required mens rea (premeditation, deliberation, and specific intent to kill). Similarly, bracketed paragraph 5 should be given for a charge of malicious destruction of property because the language in the first two paragraphs of the aiding and abetting instruction may not be understood by the jury to convey the mens rea required for malicious destruction of property (intent to injure or destroy the property, or a conscious disregard of known and substantial risks of harm that were likely to result to the property from the defendant's actions).
In some instances, the parties may be satisfied that the first two paragraphs of the instruction adequately convey the required mens rea for the offense without the bracketed language. The Committee does not propose further language, in the belief that further refinement is best achieved in concrete factual settings arising in litigation. The italicized last sentence of bracketed paragraph 5 gives guidance to the Court that additional instructions may be necessary to make clear to the jury that the principal and the aider and abettor(s) need not have the same mens rea as each other if an offense can be committed with an alternate mens rea (e.g., specific intent to kill or seriously injure, or conscious disregard of an extreme risk of death or serious bodily injury, in second-degree murder), so long as each defendant has a mens rea that satisfies the requirements of the offense charged. Bracketed paragraph 6, regarding felony murder, should be given in addition to bracketed paragraph 5 when multiple persons are charged with felony murder based upon an enumerated felony. See D.C. Official Code 22-2101; Instructions 4.205 IIA and 4.204 IA. It should not be given where multiple persons are charged with a felony murder based upon any other felony (e.g., carjacking). See Kitt, 904 A.2d at 356 ; Instruction 4.205 IIB; Instruction 4.204 IB. Wilson-Bey does not affect felony murder liability for enumerated felonies. The "natural and probable consequences" language in the felony murder instruction for enumerated felonies is proper because it describes a rule of law authorized by the felony murder statute. See Wilson-Bey, 903 A.2d at 838-39 ; Kitt, 904 A.2d at 355 . An aider and abettor's liability for the underlying felony, of course, is governed by Wilson-Bey. To correct a typographical error, the 2008 release placed a bracket around the final two sentences of the paragraph rather than merely the last sentence. Bracketed paragraph 7 for possessory firearm offenses is new in the 2010 release, added to effectuate Lancaster v. U.S., 975 A.2d 168 (D.C. 2009) . In Lancaster, the Court of Appeals held that the government must show "some conduct ... of an affirmative character in furtherance of [the possessory firearms offense]" and cannot merely show "general participation in the criminal venture" in order to prove aiding and abetting of the possessory firearms offense. Id. at 175 . See also Wheeler v. U.S., 977 A.2d 973, 986 n.34 (D.C. 2009) ("Lancaster ... necessarily implies a requirement that the trial court apply Wilson-Bey to PFCV and instruct accordingly.") Lancaster specifically referenced both PFCV and CPWL as offenses to which its holding applied. Bracketed paragraph 8, for the while armed enhancement, has been retained unaltered because the Court of Appeals has not specifically addressed the issue of how the jury should be instructed on the while armed enhancement following Wilson-Bey and how Lancaster may apply to the enhancement, which is found at D.C. Code 22-4502(a). See Wheeler, 977 A.2d at 986-87 . Wheeler suggests, however, that it may be advisable to use the Lancaster instruction for "while armed" as well. The court in Wheeler noted that the while armed enhancement "requires mere availability of a weapon ... to the principle offender," and has "equated such availability, at a minimum, with 'constructive possession.' " Wheeler, 977 A.2d at 987 n.36 (internal quotation and citation omitted). "Because possession (actual or constructive) requires knowledge of the weapon and intent to exercise dominion and control over it, it would not be fanciful to suggest that such knowledge and intent must be shown on the part of the aider and abettor, as well as the principle offender, to prove 'while armed' enhancement." Id. (emphasis added) (internal quotation and citation omitted). In the current bracketed paragraph, the second and third sentences are based on Instruction 3.101, proof of state of mind, and convey that the aider and abettor's knowledge that the principal was armed can be inferred from the surrounding circumstances. If felony murder is charged, the judge must give the supplementary aiding and abetting instruction in the felony murder instruction, from No. 4.205 or 4.204. See Christian v. U.S., 394 A.2d 1, 49 (D.C. 1978) .
The bracketed instruction in the next-to-last paragraph should be given in cases in which the principal offender is not on trial with the defendant. See Murchison v. U.S., 486 A.2d 77, 81-82 (D.C. 1984) (citing Strickland v. U.S., 332 A.2d 746 (D.C. 1975)) . Mere presence issues With reference to "mere presence," see Johnson v. U.S., 883 A.2d 135 (D.C. 2005) ("the jury could reasonably find from the evidence that Johnson was not 'merely present' and that he gave tacit approval to all of the offenses perpetrated by the principal, Lewis; that Johnson could have dissociated himself from Lewis at several points during the sequence of events, but failed to do so; and that Johnson displayed his consciousness of guilt by fleeing from the police and attempting to conceal himself in some bushes."); Price v. U.S., 813 A.2d 169 (D.C. 2002) (evidence showed that defendant was at the scene of the crime with two men and made his escape at the same time; he never distanced himself from the crimes but rather demanded to know who had shot at his car as one of his companions threatened to kill everyone on the block; and he had a weapon in view while his cohorts had their deadly weapons out as they made their threats; such evidence was sufficient to support his assault with a dangerous weapon conviction on an aiding and abetting theory); Porter v. U.S., 826 A.2d 398, 405 (D.C. 2003) ("Although mere presence at the scene is not enough to establish guilt under an aiding and abetting theory, the additional proof of 'conduct which designedly encourages or facilitates a crime will support an inference of guilty participation in the crime as an aider and abettor.' "); In re T.H.B., 670 A.2d 895 (D.C. 1996) (mere presence at the scene of the crime, without more, is generally insufficient to prove involvement in the crime, but it will be deemed sufficient if it is intended to aid and does aid the primary actor or actors); U.S. v. Powell, 929 F.2d 724, 289 U.S. App. D.C. 131 (1991) (where defendant took undercover officer who was seeking to buy drugs to an apartment in which other persons were present, one of whom was openly carrying a firearm, evidence was insufficient to convict defendant as aider and abettor to possession of firearm); U.S. v. Byfield, 928 F.2d 1163, 289 U.S. App. D.C. 71 (1991) (evidence sufficient to convict defendant as aider and abettor to possession of 600 grams of cocaine where he accompanied a girl on a train trip, they left train together at Union Station, conversed, separated, conversed again, and separated again, defendant motioned to girl to move away from him, and girl subsequently was arrested carrying a bag containing the cocaine); U.S. v. Poston, 902 F.2d 90, 284 U.S. App. D.C. 125 (1990) (where defendant gave man a ride in his truck knowing that man had PCP and intended to distribute it elsewhere, and man thereafter left the truck, distributed some drugs in alley, and fled from police leaving other drugs behind, and defendant thereafter was apprehended in his truck at a location where he could have been serving as a lookout for seller, conviction of defendant as aider and abettor to possession with intent to distribute drugs affirmed); In re L.A.V., 578 A.2d 708 (D.C. 1990) (evidence that respondent stood with his back to a companion who placed a handgun on the ground as police approached and that respondent knew companion had gun insufficient to convict defendant as aider and abettor); Jefferson v. U.S., 463 A.2d 681, 683 (D.C. 1983) (evidence that defendant was present when murder occurred, that he moved from back seat of car to driver's seat during altercation and drove off at high speed after his associates got back in the car, and that he warned unwitting passenger to remain silent about what he had witnessed was sufficient to support defendant's conviction for aiding commission of crime upon which felony murder conviction was based); Downing v. U.S., 434 A.2d 409, 412 (D.C. 1981) (evidence that assailants got out of car defendant was driving and almost immediately thereafter assaulted victim, that defendant had opportunity to see victim's bloodied face and see her pursue assailants, and that assailants were in car driven by defendant a short time later, was sufficient to support conviction for aiding and abetting assault with intent to commit robbery); Hordge v. U.S., 545 A.2d 1249 (D.C. 1988) (evidence that defendant and principal were observed circling area two hours before the robbery and that defendant sat in car with engine running only a short distance from the scene during the robbery was sufficient to sustain conviction for aiding and abetting robbery).
Proof of underlying crime For a defendant to be convicted as an aider and abettor, the government must prove beyond a reasonable doubt all of the elements of the underlying crime, including commission of the crime by someone other than the accused. In re J.W.Y., 363 A.2d 674 (D.C. 1976) ; U.S. v. Wiley, 492 F. 2d 547, 160 U.S. App. D.C. 281 (1973) (insufficient corroboration that anyone had committed carnal knowledge). Thus, for example, a defendant may not be convicted of aiding and abetting the crime of carrying a pistol without a license absent proof that the principal lacked a license. Jefferson v. U.S., 558 A.2d 298, 303-04 (D.C. 1989) ; Jackson v. U.S., 395 A.2d 99, 103 n. 6 (D.C. 1978) . However, the principal perpetrator of an offense need not be convicted as a prerequisite to the conviction of an aider and abettor. U.S. v. Edmond, 924 F.2d 261, 288 U.S. App. D.C. 17 (1991) (defendant could be convicted as aider and abettor to first degree murder after gunman had been acquitted of offense); Gray v. U.S., 260 F.2d 483, 104 U.S. App. D.C. 153 (1958) (conviction of aider and abettor sustained despite acquittal of the principal); U.S. v. McCall, 460 F.2d 952, 148 U.S. App. D.C. 444 (1972) . Compare U.S. v. Smith, 478 F.2d 976, 156 U.S. App. D.C. 66 (1973) (where principal charged in murder case was improperly deprived of evidence corroborating his claim of self-defense through actions of the government and his conviction therefore was reversed, conviction of second defendant as aider and abettor also reversed because if principal has been acquitted on grounds of self-defense, no crime to aid and abet would have been committed). Aiding and abetting need not be charged in indictment or information It is not necessary that an aiding and abetting charge have been included in an indictment or information in order to instruct the jury on aiding and abetting. Tyler v. U.S., 495 A.2d 1180 (D.C. 1985) ; U.S. v. Kegler, 724 F.2d 190, 233 U.S. App. D.C. 58 (1984) ; U.S. v. Boone, 543 F.2d 412, 177 U.S. App. D.C. 265 (1976) ; Mason v. U.S., 256 A.2d 565 (D.C. 1969) . Nor is an instruction on aiding and abetting necessary in order to make the accused as principal vicariously liable for the acts of the other perpetrator of the offense. Hazel v. U.S., 353 A.2d 280 (D.C. 1976) . But see U.S. v. Raper, 676 F.2d 841, 219 U.S. App. D.C. 243 (1982) (where aiding and abetting is separately charged in the indictment, jury must be instructed as to its elements). Finally, an indictment need not specify the means by which the defendant aided and abetted the principal where the particular theory of aiding and abetting is not an element of the offense, and no constructive amendment of the indictment occurs where the government during trial shifts the theory under which the defendant allegedly was an aider and abettor (e.g., from getaway driver to planner of robbery). Ingram v. U.S., 592 A.2d 992 (D.C. 1991) . Basis required for giving aiding and abetting instruction Where the government originally proceeded against a defendant as a principal but, at the close of trial, requested an instruction on aiding and abetting, the giving of such an instruction under those circumstances was reversible error because the government had elicited at trial only vague and inconclusive proof that another was the principal offender. Payton v. U.S., 305 A.2d 512 (D.C. 1973) ; see also Hairston v. U.S., 908 A.2d 1195, 1197-1200 (D.C. 2006) (per curiam) (no evidentiary basis for aiding and abetting instruction where victim testified that defendant was the principal; while victim's prior statements portrayed defendant as an accomplice, these statements were admitted only for impeachment and not the truth, and could not serve as evidence that there was an additional principal whom the defendant aided and abetted); Russell v. U.S., 701 A.2d 1093, 1099-1100 (D.C. 1997) (error for court to give aiding and abetting instruction when no evidence whatsoever existed that the defendant aided and abetted anyone). See Brooks v. U.S., 599 A.2d 1094, 1099 (D.C. 1991) (no evidentiary predicate for a finding that defendant was other than the principal); see also Bayer v. U.S., 651 A.2d 308 (D.C. 1994) (when the government proceeds against a defendant as a principal but then, at the close of
the evidence, successfully requests an aiding and abetting instruction, no reversal is warranted if there is clear and convincing evidence that the defendant was present and participating in the crime); Gayden v. U.S., 584 A.2d 578, 582-83 (D.C. 1990) (instruction not error where there was clear and convincing evidence that defendant was present and participating in the crime). Where a defendant was indicted as the principal for armed rape and sodomy, the indictments were based on false testimony, and the defendant subsequently was convicted as an aider and abettor on the rape and sodomy charges, his convictions could not stand because he had not been indicted on the charges of which he was convicted. Wright v. U.S., 564 A.2d 734 (D.C. 1989) . If an instruction on aiding and abetting is erroneously given, reversal of the conviction is not warranted where there is separate strong evidence of an independent basis for conviction of the principal offender. United States v. Alexander, 471 F.2d 923, 966, 152 U.S. App. D.C. 371 (1972) . See also Smith v. U.S., 837 A.2d 87, 95 (D.C. 2003) ("In order to prove an offense on an aiding and abetting theory, the government is required to prove: (1) that the offense was committed by someone; (2) that the accused participated in the commission of the offense; and (3) that he did so with guilty knowledge."); Hawthorne v. U.S., 829 A.2d 948 (D.C. 2003) (because there was "some evidence" that someone other than the defendant was the principal whom the defendant aided and abetted, the court committed no error by giving the aiding and abetting instruction); Lloyd v. U.S., 806 A.2d 1243 (D.C. 2002) (evidence sufficient for reasonable jury to find that the defendant advised and incited the co-defendant or at least that he knowingly participated in the shooting); Bouknight v. U.S., 641 A.2d 857 (D.C. 1994) (trial court acted within its discretion in giving a supplemental jury instruction on aiding and abetting in response to a jury note after deliberations had begun; court properly limited subject of additional closing argument, which was permitted after the supplemental instruction); Greer v. U.S., 600 A.2d 1086, 1088 (D.C. 1991) (evidence sufficient to prove aiding and abetting possession with intent to distribute controlled substance); Felder v. U.S., 595 A.2d 974 (D.C. 1991) (at first trial defendant was prosecuted as principal who possessed gun and killed decedent; jury acquitted defendant of carrying a pistol but hung on charges of armed felony murder and armed attempted robbery; at second trial, trial judge ruled that government could not introduce evidence that defendant had gun in his possession when killing occurred, on appeal held that defendant's due process rights were not violated by his prosecution at second trial on theory he was an aider and abettor to murder and attempted robbery); Gillis v. U.S., 586 A.2d 726 (D.C. 1991) (aiding and abetting instruction properly given where evidence showed that defendant who was charged with armed assault acted in concert with his friends in shooting at victims during confrontation); U.S. v. Lam Kwong-Wah, 924 F.2d 298, 288 U.S. App. D.C. 54 (1991) (where defendant was not indicted as aider and abettor, government did not argue it during trial and court did not instruct jury on aiding and abetting, no inference is permissible that jury convicted defendant as aider and abettor; consequently, his conviction for an offense committed in the District of Columbia at a time the defendant was present elsewhere could not be sustained on the theory he aided and abetted offense); Williams v. U.S., 478 A.2d 1101 (D.C. 1984) (fundamental difference between accessory after the fact and aider and abettor is that former is charged with a distinct crime having its own penalty and the offense of accessory after the fact must be separately set out in the indictment); Christian v. U.S., 394 A.2d 1 (D.C. 1978) (felony murder statute reaches only the individual who committed the murder; other participants in felony are exposed by virtue of the aiding and abetting statute); U.S. v. Lyons, 706 F.2d 321, 227 U.S. App. D.C. 284 (1983) (18 U.S.C. 2(a) supports conviction for aiding and abetting possession of controlled substance with the intent to distribute); U.S. v. Garrett, 720 F.2d 705, 232 U.S. App. D.C. 58 (1983) (aider and abettor need not perpetrate substantive offense, know of its details, or even be present during its commission so long as he consciously assists in aiding its commission in some way); Branch v. U.S., 382 A.2d 1033 (D.C. 1978) (jury could properly convict defendant as aider and abettor of lesser offense than principal); Shanahan v. U.S., 354 A.2d 524 (D.C. 1976) (principal's defense of insanity of no avail to aider and abettor); In re W.E.P., 318 A.2d 286 (D.C. 1974) (person who could not be charged as principal may be charged as aider and abettor and thus conviction of female for carnal
knowledge upheld where she was aider and abettor); Quarles v. U.S., 308 A.2d 773 (D.C. 1973) (evidence insufficient to sustain aiding and abetting petit larceny conviction, notwithstanding proof that defendant pushed victim under suspicious circumstances at the same moment unknown assailant picked victim's pocket); 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 16.09 and 18.01, 12.01 to 12.03, 12.05, 12.07, pp. 121-40, 150-59 (5th ed. 2000); Model Penal Code 2.06 and 5.02 (1962); Criminal Practice Institute Trial Manual, 36.6 to 36.9 (2005/2006 ed.). Cross references: No. 3.101, Proof of State of Mind--Note; Underlying Offense Instruction (elements); No. 4.204, Homicide--First Degree Felony Murder and Second Degree Murder; No. 4.205, Homicide--First Degree Premeditated Murder, First Degree Felony Murder and Second Degree Murder (No Self-Defense or Mitigation Raised); No. 6.500, Carrying a Pistol Without a License, Carrying a Rifle or Shotgun, or Carrying a Dangerous Weapon; No. 6.510, Possession of a Firearm During the Commission of a Crime of Violence or Dangerous Crime; No. 7.100, Accessory After the Fact; No. 8.101, Armed Offenses--Added Element.
Page 215
98 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. III. Definitions and Theories of Liability B. Theories of Liability 1-III Criminal Jury Instructions for DC Instruction 3.201 Instruction 3.201 TRANSFERRED AND CONCURRENT INTENT
A. TRANSFERRED INTENT In this case, [name of defendant] is charged with [name of offense] of [name of victim] on the principle of transferred intent. Transferred intent connects the mental state directed toward an intended victim with the actual harm caused to another person. Accordingly, if the government proves beyond a reasonable doubt that [name of defendant] [specify conduct such as "fired a shot"], specifically intending to [kill] [injure/harm] [name of target] [another person], but instead actually [killed] [injured/harmed] [name of unintended victim], an unintended victim, then, by operation of law, the defendant's intent to [kill] [injure/harm] is [also] transferred from [name of target] to [name of victim]. This principle applies whether or not the intended victim is also killed/injured/harmed and whether or not the intended victim is identified. B. CONCURRENT INTENT I have already instructed you on the offense of [insert name of offense]. I further instruct you that if the government proves beyond a reasonable doubt that [name of defendant], by [specify conduct, such as "firing multiple shots" or "planting a bomb"], created a zone of harm/danger around [name of target, if known] [one person] with the intent to kill/injure/harm him/her, you may infer that [name of defendant] intended to kill/injure/harm any other person in the anticipated zone of harm/danger and [name of defendant] has committed the same [degree of homicide] [type of assault] against [name of other person] as [s/he committed against [name of target]] [s/he would have committed had s/he also killed/injured/harmed [name of target]/the intended victim]. This principle applies whether or not the intended victim is also killed/injured/harmed and whether or not the intended victim is identified. ____________________________________ Comment:
Transferred Intent This instruction was added in the 2002 edition based upon the common law of transferred intent as applied and approved in the District of Columbia. The language is adapted from the instructions approved in Hunt v. U.S., 729 A.2d 322, 325-26 (D.C. 1999) , and Ruffin v. U.S., 642 A.2d 1288, 1293-95 (D.C. 1994) . See O'Connor v. U.S., 399 A.2d 21, 24-25 (D.C. 1979) (doctrine of transferred intent is well entrenched in the common law, forms a part of the criminal law of the District of Columbia, and applies in first degree murder cases); see also Williams v. U.S., 881 A.2d 557, 567 (D.C. 2005) (reaffirming the law of transferred intent in the District of Columbia); In re E.D.P., 573 A.2d 1307, 1308 (D.C. 1990) ("where a person attempts to injure one person, but injures another by mistake, the intent of the defendant will be transferred from the intended victim to the actual, unintended victim") (references to parties omitted); see also Di Giovanni v. U.S., 810 A.2d 887 (D.C. 2002) (even if the jury believed that the defendant had aimed at two men who attacked him, since the gun which he fired at close range was pointed in the victim's direction, a jury could reasonably conclude that the defendant knew the victim was in his "zone of harm" and, thus, he acted with the specific intent to kill). It applies whether or not the intended victim is also murdered or injured. See Lloyd v. U.S., 806 A.2d 1243 (D.C. 2002) (transferred intent doctrine permits a first-degree murder conviction for shooting death of an unintended victim even when the intended victim is also killed); Hunt v. U.S., 729 A.2d 322, 326 (D.C. 1999) ("This court has not limited the application of the doctrine of transferred intent where the intended victim is murdered"); Brooks v. U.S., 655 A.2d 844, 845 (D.C. 1995) (declining to hold under plain error standard that when a specific intent assault injures the intended victim, the doctrine of transferred intent does not apply to the unintended victims); Harvey v. State, 111 Md. App. 401, 681 A.2d 628 (Md. App. 1996) ("doctrine of transferred intent operates with full force whenever the unintended victim is hit and killed, regardless of the fate of the intended victim"). The trial court should modify this instruction to the facts of the case and use the bracketed language appropriate for a homicide case or a non-fatal assault. This instruction is not appropriate when the defendant is charged with an assault that requires only a general intent. See In re E.D.P., 573 A.2d 1307, 1308 (D.C. 1990) (applying the theory of transferred intent to a specific intent assault). Concurrent Intent The Fifth Edition added an instruction for concurrent intent. "In Nixon v. U.S., 730 A.2d 145, 149 (D.C. 1999) , [the Court] recognized that 'where the means employed to commit the crime against a primary victim created a zone of harm around that victim, the fact finder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.' Id. (quoting Ruffin v. U.S., 642 A.2d 1288 (D.C. 1994)) ." Di Giovanni v. U.S., 810 A.2d 887, 895 (D.C. 2002) . The line between transferred intent and concurrent intent is difficult to discern and where the trial court has instructed on transferred intent, the Court of Appeals has found the error, if any, on failing to instruct on concurrent intent harmless. Hunt v. U.S., 729 A.2d 322, 324-26 (D.C. 1999) . Accord West v. U.S., 866 A.2d 74, 79-80 (D.C. 2005) (not plain error to instruct on transferred intent where "same fact would have supported an instruction and finding of concurrent intent"). The Court of Appeals of Maryland distinguished between transferred intent and concurrent intent by stating that, "In transferred intent, the intended harm does not occur to the intended victim, but occurs instead to a second unintended victim," whereas, in concurrent intent "the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity." Ford v. State, 625 A.2d 984, 1000-01 (Md. 1993) . That distinction, however, was later repudiated. Harvey v. State, 681 A.2d 628, 637 (Md. 1996) (concluding that "the doctrine of transferred intent operates with full force whenever the unintended victim is hit and killed" regardless of the fate of the
intended victim). The D.C. Court of Appeals has expressly held that "in a murder case such as the present one, application of the transferred intent doctrine is not limited to situations in which the intended victim survives the deadly assault." Brooks v. U.S., 655 A.2d 844, 849 (D.C.1995) ." Lloyd v. U.S., 806 A.2d 1243, 1251 (D.C. 2002) . Cross references: No. 4.103, Aggravated Assault; No. 4.104, Mayhem; No. 4.105, Malicious Disfigurement; No. 4.111, Assault with Intent to Kill; No. 4.112, Assault with Intent to Commit Murder; No. 4.114, Assault on a Police Officer; No. 4.201, Homicide--First Degree Premeditated Murder and Second Degree Murder (No Justification or Mitigation Generated); No. 4.202, Homicide--First Degree Premeditated Murder and Second Degree Murder and Voluntary Manslaughter (Self-defense and Heat of Passion Caused by Adequate Provocation); No. 4.203, Homicide--First Degree Premeditated Murder, Second Degree Murder and Voluntary Manslaughter (Heat of Passion Caused by Adequate Provocation; No Self-defense Raised); No. 4.210, Homicide--Second Degree Murder and Voluntary Manslaughter (Heat of Passion Caused by Adequate Provocation; no Self-Defense Raised); No. 4.211, Homicide--Second Degree Murder and Voluntary Manslaughter (Self-Defense and Heat of Passion Caused by Adequate Provocation). Doctrine of transferred intent does not apply to: No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.110, Assault with Intent to Commit Robbery; No. 4.120, Cruelty to Children; No. 4.212, Homicide--Voluntary and Involuntary Manslaughter; No. 4.204, Homicide--First Degree Felony Murder and Second Degree Murder; Felony murder portion of No. 4.205, Homicide--First Degree Premeditated Murder, First Degree Felony Murder, and Second Degree Murder (No Self-Defense or Mitigation Raised); No. 4.213, Homicide--Second Degree Murder and Criminal Negligence Involuntary Manslaughter (No Self-Defense or Mitigation Raised).
Page 218
99 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.100 Instruction 4.100 ASSAULT
D.C. Official Code 22-404 (2001) A. ATTEMPTED-BATTERY ASSAULT The elements of the offense of assault, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant], with force or violence, injured [or attempted or tried to injure] [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; [and] 3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person.] [; and] [4. That the defendant's conduct was not justified by the use of reasonable parental discipline.] B. INTENT-TO-FRIGHTEN ASSAULT [The elements of assault, each of which the government must prove beyond a reasonable doubt, are that:] [Another way the government may prove an assault is by proving each of the following elements beyond a reasonable doubt, that:] 1. [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury;
Page 219 1-IV Criminal Jury Instructions for DC Instruction 4.100
2. S/he did so voluntarily, on purpose, and not by mistake or accident; [and] 3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]. [; and] [4. That the defendant's conduct was not justified by the use of reasonable parental discipline.]
[The following definitions apply to both Parts A and B.] [In the case of either kind of assault,] Injury means any physical injury, however small, including a touching offensive to a person of reasonable sensibility. [The government must prove a threatening act; mere words are not sufficient. The government need not prove that the defendant intended to injure the complainant.] [To prove that the defendant had the apparent present ability to injure the complainant, the government need not prove the complainant actually experienced fear of injury. It is sufficient to prove that the defendant's act would have created, in a person of reasonable sensibility, a fear of immediate bodily harm.] [The parent of a minor child is justified in using a reasonable amount of force upon the child for the purpose of safeguarding or promoting the child's welfare, including the prevention or punishment of his/her misconduct. Thus, the parent may punish the child for wrongdoing and not be guilty of assault (1) if the punishment is inflicted out of a genuine effort to correct the child, and (2) if the punishment thus inflicted is not excessive in view of all the circumstances, including the child's age, health, mental and emotional development, alleged misconduct on this and earlier occasions, the kind of punishment used, the nature and location of the injuries inflicted, and any other evidence that you deem relevant. To be justified, the force must have been used for the purpose of exercising parental discipline and must be reasonable. The defendant is not required to prove that his/her conduct was a justifiable exercise of reasonable parental discipline. Rather, the government must prove beyond a reasonable doubt that the defendant's conduct was not so justified.] C. NON-VIOLENT SEXUAL TOUCHING ASSAULT The elements of a sexual touching assault, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] sexually touched [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose and not by mistake or accident; and 3. [Name of complainant] [The other person] did not consent to being touched by [name of defendant] in that manner.
Sexual touching is touching a part of another person's body that would cause fear, shame, humiliation or mental anguish in a person of reasonable sensibility if done without consent. The government need not prove, however, that the complainant actually suffered any of those feelings [and it need not prove the complainant was aware of being touched]. ____________________________________ Comment:
The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. In the Fifth Edition, the Committee substituted "tried to injure" in element one of Part A, in place of "made an attempt or effort," to simplify the language even more. It also reorganized the instruction slightly to move the definitions that applied to both Parts A and B after those subsections to eliminate unnecessary repetition. Case law clearly defines at least three forms of simple assault: "attempted-battery" assault, "intent-to-frighten" assault, and "sexual touching" assault. The District of Columbia Court of Appeals spelled out the first two kinds of assault in Ray v. United States, 575 A.2d 1196 (D.C. 1990) (attempted battery) and McGee v. U.S., 533 A.2d 1268, 1270 (D.C. 1988) (intent to frighten). See also Robinson v. United States, 506 A.2d 572, 574 (D.C. 1986) ; Anthony v. U.S., 361 A.2d 202 (D.C. 1976) . It defined sexual touching assault in In the Matter of A.B., 556 A.2d 645, 646-47 (D.C. 1989) . Parts A and B The judge may choose Part "A" or "B" or give both, as the circumstances of the case require. In some cases, the court should give both "A" and "B", in which case the court should give the bracketed language at the beginning of Part "B" that indicates "B" is an alternative of way of proving assault and give the bracketed language before the paragraph defining "injury." The Fifth Edition simplified the first element of Parts A and B by changing "made an attempt or effort" to "attemped or tried to" injure. It also struck the word "present" from the third element because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). Attempted battery assault and intent-to-frighten assault are distinguished by the nature of the intent that must be proven. "Attempt-battery assault requires proof of an attempt to cause a physical injury... . Intent-to-frighten assault, on the other hand, requires proof that the defendant intended either to cause injury or to create apprehension in the victim by engaging in some threatening conduct; an actual battery need not be attempted." ( Nathaniel) Robinson v. U.S., 506 A.2d 572, 574 (D.C. 1986) . In an attempt-battery assault case, the government must prove the defendant not only used actual violence but directed it against the complainant. "Indeed, the intentional infliction of bodily injury is the essence of such an assault." Williams v. U.S., 887 A.2d 1000 (D.C. 2005) . In Williams the defendant's admission that he had thrown or tossed his shoe alone did not support a guilty verdict; the court must also have found--which it did not--that he had aimed it at the complainant to support the conviction. However, the court emphasized that because assault is a "general intent crime", the government does not have to prove that the defendant subjectively intended to inflict injury. Id. See O'Brien v. U.S., 962 A.2d 282, 300 (D.C. 2008) (assault has no specific intent element). Since Williams, the court has reiterated the elements of assault as: "(1) a voluntary (2) act on the part of the defendant to harm another person, and (3) that at the time the defendant committed the act, he must have had the apparent ability to injure the person. Williamson v. U.S., 445 A.2d 975, 978 (D.C. 1982) ." Long v. U.S., 940 A.2d 87, 99 (D.C. 2007) . See also Powell v. U.S., 916 A.2d 890, 893 (D.C. 2006) ; Freeman v. U.S., 912 A.2d 1213, 1219, n. 16 (D.C. 2006) ; Macklin v. U.S., 733 A.2d 962, 964 (D.C. 1999) ("(1) an attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure; (2) the apparent present ability to injure the victim; and (3) the intent to do the act constituting the assault."); Ray v. United States, 575 A.2d 1196, 1198 (D.C. 1990) . It is reversible error to instruct only on attempted battery assault when the evidence at trial can only
support an intent-to-frighten assault. Peterson v. U.S., 657 A.2d 756, 761 (D.C. 1995) citing ( (Joseph) Smith, 601 A.2d 1080, 1082 (D.C. 1992)) . See also McGee v. U.S., 533 A.2d 1268 (D.C. 1988) (reversible error for court to give the attempted-battery instruction instead of the intent-to-frighten instruction in case where defendant "brandished" a handgun, pointing it towards the windshield of the car in which the complainant was seated but in which the "government presented no evidence that McGee displayed his weapon in an attempt to harm anyone, or that he either fired the gun or attempted to fire it); Robinson, 506 A.2d at 574 ("To establish an attempted-battery type of assault on the facts of this case [where defenant pointed gun at complainant], the government would have had to prove that [defendant] either fired the gun or attempted to fire it."). Intent-to-frighten assault requires a "menacing," Williamson v. U.S., 445 A.2d 975, 978 (D.C. 1982) , or "threatening," Robinson, 506 A.2d at 574 , act. The Committee used "threatening" in the first element of "B" as more commonly understandable. For the second element in Parts A, B and C, the Committee provided a description of general intent, rather than using that term. See Defendant's State of Mind--Note, No. 3.100; (Smith v. U.S., 593 A.2d 205, 20607 (D.C. 1991) (attempted battery assault and intent-to-frighten assault are general intent crimes); Robinson, 506 A.2d at 574-75 . See also Carter v. U.S., 531 A.2d 956, 960 (D.C. 1987) (voluntary intoxication no defense to assault because it is a general intent crime). The third element of the attempted-battery assault and of the intent-to-frighten assault is the same, Williamson, 445 A.2d at 978 , and focuses "upon the conduct of the accused rather than subjective perception of the victim." ( Clifford) Smith, 593 A.2d at 206 (citing Anthony, supra ). Nevertheless, evidence that the defendant's conduct did actually produce fear in the victim is relevant. Id. The bracketed fourth elements and explanatory paragraphs make clear that the government has the burden of proving that the defendant did not merely exercise reasonable parental discipline when that is raised as a defense to assault. See Lee v. U.S., 831 A.2d 378, 380-81 (D.C. 2003) (once this defense is raised, the government has the burden of refuting it by proving beyond a reasonable doubt that "the parent's purpose in resorting to force against her child was not disciplinary, or that the force she used was unreasonable"); Newby v. U.S., 797 A.2d 1233, 1237 (D.C. 2002) ("We hold that the simple assault statute ... applies to crimes by parents against their children. We further hold that the government is not obliged to prove malice in order to defeat the parental discipline defense. The government may refute that defense by proving that the parent's purpose in resorting to force against her child was not disciplinary, or that the force she used was unreasonable."); Martin v. U.S., 452 A.2d 360, 362 (D.C. 1982) (person acting in loco parentis may also raise this defense). Because the reasonable parental discipline defense is also available to someone acting in loco parentis, see Martin v. U.S., 452 A.2d 360, 362 (D.C. 1982) , there is an additional instruction, No. 4.13A, for the court's use in appropriate cases when explaining that concept to the jury. Instruction will only be given if in loco parentis defense is fairly raised by the evidence. The instruction explains that "injury" includes an offensive touching. See Ray v. United States, 575 A.2d 1196 (D.C. 1990) (includes spitting on another person). See also Harris v. U.S., 201 A.2d 532, 534 (D.C. 1964) (pickpocket's jostling of victim and fumbling with his trouser cuff sufficiently offensive to constitute injury needed for assault). To ensure the jury uses an objective standard of judging "offensive," the Committee borrowed the "reasonable sensibility" standard from Anthony v. U.S., 361 A.2d 202, 206 (D.C. 1976) , where it was used in a related context. The first bracketed portion, explaining that words cannot amount to an assault and that the government need not prove specific intent to injure, is from Williamson, 445 A.2d at 978 . The second bracketed portion, explaining apparent present ability to injury, stems from ( Robinson, 506 A.2d at 575 and Anthony.
Self-defense may be raised to justify assaultive behavior. In cases involving a police officer, this defense is more limited. Robinson v. United States, 649 A.2d 584, 587 (D.C. 1994) . When a defendant is charged with felony assault on officer, the defedant must show that the officer's force was excessive and the defendant's response was reasonably necessary for self-protection. When a defendant is charged with misdemeanor simple assault for conduct against an officer and invokes the right of self-defense, the burden shifts to government to prove beyond a reasonable doubt that, at the time of the assault, the complainant officer was engaged in official duties and that the defendant did not act with justifiable and excusable cause. The trial court should instruct the jury that, if the government fails to prove these facts, the defendant was entitled to defend against the use of any force under a general right of self-defense. Id. See also U.S. v. Speed, 562 A.2d 124, 127 (D.C. 1989) (in simple assault case, where complainant was police officer, defendant's self defense rights may be limited); McDonald v. U.S, 496 A.2d 274 (D.C. 1985) (illegality of arrest by police no defense to assault); Womack v. U.S., 350 A.2d 381 (D.C. 1976) (conviction of off-duty police officers for assault and obstruction of justice sustained despite defendants' assertion they reasonably believed they were assisting in an arrest). Part C The instruction on sexual-touching assault is based on In the Matter of A.B., 556 A.2d 645 (D.C. 1989) . There, the court found a simple assault where the defendant touched a person of the opposite sex on the buttocks, without consent. Building on prior cases, A.B., reinforced the point that the sexual nature of the contact supplies the "injury or threat of injury" necessary for simple assault. Id. at 646-47 . See Beausoliel v. U.S., 107 F.2d 292, 296-97, 71 App. D.C. 111, 115-16 (1939) (discussing long common law history of this type of assault). In A.B. and Beausoliel, the court reasoned that the "fear, shame, humiliation, and mental anguish" caused by such a touching amounted to the injury. A.B., 556 A.2d at 646-47 (quoting Beausoliel). The instruction uses this language to define sexual touching. A.B. also makes clear, however, that the government need not prove the victim experienced those feelings, or even was aware of the act. Id. at 647 n.3 . As in other instructions, the Committee used an objective standard for offensiveness. Conceivably, however, touchings in some places might be sexual touchings as a matter of law. Based on A.B., non-violent sexual touching is an "offensive touching," and could be subsumed in the attempted-battery assault instruction, as an "attempt or effort." As a practical matter, however, the Committee concluded that a non-violent sexual touching virtually always involves an actual touching, as in every reported case describing the offense. In a case that does present an attempted sexual touching amounting to an assault, the judge should modify the instruction to address the facts. Consent negates assault in sexual touching cases, as in other kinds of assault. Guarro v. U.S., 99 U.S. App. D.C. 97, 100 and n.4, 237 F.2d 578, 581 and n.4 (1956) . The comments in the 1993 edition noted that "[a]lthough it is not clear the government must prove lack of consent in all cases, whether or not the evidence raises the issue, the Committee believes it prudent to instruct on lack of consent as a matter of course in sexual touching cases, unless they involve children or other legally incompetent complainants." The comprehensive sex offense statute at least raises the issue of whether that remains an accurate statement of the law. See The Anti-Sexual Abuse Act of 1994, D.C. Law 10-257. See also Riley v. U.S., 291 A.2d 190, 193 (D.C. 1972) (defendant may be convicted of assault without victim's availability as witness. Lack of consent can be shown by other's testimony that defendant stealthily removed victim's wallet, passed it to an accomplice who hurried away, and the observation of victim's emotional state upon discovering missing wallet). A single incident may constitute one or more assaults. See generally In re T.H.B, 670 A.2d 895 (D.C. 1996) (when the evidence establishes "a continuing course of assaultive conduct," rather than "a
succession of detached incidents," the defendant is properly charged with only one count of assault); Hawkins v. U.S., 434 A.2d 446 (D.C. 1981) (jury must be instructed to distinguish between two separate potential assaults for unanimity purposes). One transaction may also involve multiple charges, which may be merged or charged separately. See Joiner v. U.S., 585 A.2d 176, 178 (D.C. 1991) (merger of assaults where a single act implicated multiple complainants); Jones v. U.S., 401 A.2d 473 (D.C. 1979) (consecutive sentences sustained for assault and possession of a prohibited weapon arising out of the same transaction); Glymph v. U.S., 490 A.2d 1157 (D.C. 1985) (assault a lesser included offense of assault with a dangerous weapon); Hall v. U.S., 400 A.2d 1063 (D.C. 1979) (assault a lesser included offense of taking indecent liberties with a minor child under D.C. Code 22-3501(a)); Hall v. U.S., 343 A.2d 35 (D.C. 1975) (assault not necessarily a lesser included offense of obstructing justice). Cross references: No. 4.101, Assault with a Dangerous Weapon; No. 4.103, Aggravated Assault; No. 4.114, Assault on a Police Officer; No. 4.121, In Loco Parentis--Defined; No. 4.130, Threats; No. 9.600, Defenses of Accident and Mistake--Note.
Page 224
100 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.101 Instruction 4.101 ASSAULT WITH A DANGEROUS WEAPON
D.C. Official Code 22-402 (2001) A. ATTEMPTED BATTERY ASSAULT The elements of assault with a dangerous weapon, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant], with force or violence, injured [or attempted or tried to injure] [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; [and] [3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; and] 4. [Name of defendant] committed the act with a dangerous weapon. B. INTENT-TO-FRIGHTEN ASSAULT [The elements of assault with a dangerous weapon, each of which the government must prove beyond a reasonable doubt, are that:] [Another way the government may prove an assault with a dangerous weapon is by proving each of the following elements beyond a reasonable doubt, that:]
1. [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury; 2. [Name of defendant] acted voluntarily, on purpose, and not by mistake or accident; 3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; and 4. [Name of defendant] committed the threatening act with a dangerous weapon.
Dangerous Weapon
An object is a dangerous weapon if it designed to be used, actually used, or threatened to be used, in a manner likely to produce death or serious bodily injury. The government need not prove the defendant actually killed, injured or even touched [name of complainant] with the weapon. [Voluntarily pointing a dangerous weapon at another person in a threatening manner, or voluntarily using it in a way that would reasonably create in the other person a fear of immediate injury, would be an assault with a dangerous weapon.] Injury
[In the case of either kind of assault,] [I][i]njury means any physical injury, however small[.] [, including a touching offensive to a reasonable person]. [The government must prove a threatening act; mere words are not sufficient. The government need not prove the defendant intended to injure [name of complainant].] ____________________________________ Comment: The District of Columbia Court of Appeals has identified at least three forms of simple assault: "attempted battery" assault; "intent-to-frighten" assault; and "sexual touching" assault. For extended discussion of these kinds of assault, see comment on Instruction 4.100, Assault. In this Assault with a Dangerous Weapon instruction, the Committee offers Parts A and B as alternatives, covering the attempted battery and the intent-to-frighten bases for the greater offense. The Committee has not offered language appropriate for a sexual touching assault, in this context, because it appeared unlikely the government would charge such an assault as an assault with a dangerous weapon. The court may choose Part A or B, or give both, as the circumstances of the case require. In those cases where both instructions are appropriate, the court should give both and use the language, which appears in second set of brackets at the beginning of Part B, as a transition. The Fifth Edition simplified the first element of Part A by changing "made an attempt or effort" to "attemped to tried to" injure. It also struck the word "present" from the third element in Parts A and B because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). The third element's reference to "apparent ability" focuses "upon the conduct of the accused rather than subjective perception of the victim." ( Smith v. United States, 593 A.2d 205, 206 (D.C. 1991) (citing
Anthony v. U.S., 361 A.2d 202, 206 (D.C. 1976)) . Nevertheless, evidence that the defendant's conduct did actually produce fear in the victim is relevant. Id. In Powell v. U.S., 485 A.2d 596, 601 (D.C. 1984) , the court defined "dangerous weapon" as an object " 'which is likely to produce death or great bodily injury by the use made of it.' " (quoting Scott v. U.S., 243 A.2d 54, 56 (D.C. 1968) (emphasis in Scott)). The court said a dangerous weapon is "an instrument capable of producing death or serious bodily injury by its manner of use ... ." Id. at 601 . See also Edwards v. U.S., 583 A.2d 661, 664 (D.C. 1990) (quoting Powell). Of these two descriptions, the Committee chose "likely to produce" bodily injury because of its long recognition as the standard. See, e.g., Josey v. U.S., 135 F.2d 809, 811, 77 U.S. App. D.C. 321, 323 (1943) . The Committee chose to use "serious bodily injury" rather than "great bodily injury" as the former is defined in other instructions (e.g., Instruction 4.06A, Aggravated Assault). See Alfara v. U.S., 859 A.2d 149, 161 (D.C. 2004) (recognizing that "great bodily injury" is not defined statutorily in D.C. and stating that it is impossible, "as a practical matter, to envisage a bodily injury that is 'great' but not 'serious.' "). If it is an issue in the case, the court and parties may wish to insert in this instruction the definition of "serious bodily injury" from Instruction 4.103. The instruction defines dangerous weapon to include objects "used in a manner" that is dangerous, to incorporate the Powell court's point that an instrument such as an automobile can become a dangerous weapon by its reckless or intentional use in a particular situation, even though not ordinarily used to cause death or injury. See also Strong v. U.S., 581 A.2d 383 (D.C. 1990) (finding definition of dangerous weapon varies according to circumstances of its use, with coercive use putting the emphasis on the victim's view of the weapon, while mere carrying emphasizes the object's actual capacity to harm); Johnson v. U.S., 386 A.2d 710 (D.C. 1978) (automobile); Wynn v. U.S., 538 A.2d 1139, 1144 n.14 (D.C. 1988) (pencil). But see Edwards v. U.S., 583 A.2d 661 (D.C. 1990) (permanent stationary fixture not a dangerous weapon when used as part of assault because defendant could not take it into his possession or prepare it for use as a weapon). The jury generally determines whether an instrument is a dangerous weapon, from the surrounding circumstances. Williamson v. U.S., 445 A.2d 975, 979 (D.C. 1982) . In some cases, it is the perception of the complainant that informs whether an object is a dangerous weapon. In Paris v. U.S., 515 A.2d 199, 204 (D.C. 1986) , the defendant thrust "an extremely hard object" into the complainant's ribs leading the complainant to believe the defendant had a gun; the Court of Appeals held that the complainant's perception that the object had the apparent present ability to cause great bodily harm was sufficient to support a finding that the object was a dangerous weapon, whether in truth the object thrust into the complainant's ribs was a gun or a finger. In cases where the complainant mistakenly perceives an object to be a dangerous weapon, the court might consider instructing the jury as follows:
If the defendant uses an object that is not a dangerous weapon in a manner that leads the complainant to believe mistakenly that it is an object that would cause death or serious bodily injury then the object is a dangerous weapon. This insertion is not to be used in cases where the complainant correctly perceives the object but the issue is that the complainant mistakenly perceives that the object could cause death or serious bodily injury. For example, the insertion should not be used in a case where the complainant correctly perceives that he was assaulted with a flip flop and the issue is whether a flip flop is a dangerous weapon. Cf. Stroman v. U.S., 878 A.2d 1241, 1245-46 (D.C. 2005) (a flip flop, because it was not likely to produce great bodily injury, was not as a matter of law a prohibited weapon). For the jury to decide whether the object used was a dangerous weapon, the complainant need not necessarily have perceived the weapon, at least in attempt-battery type assaults. See Edwards v. U.S., 583
A.2d 661, 666 n. 6 (D.C. 1990) (court gave example of an ambushed victim shot from behind would still qualify as dangerous weapon even though victim never perceived it). The paragraph on voluntarily pointing a weapon at another person in a threatening manner is bracketed because it only applies to objects that are designed to be weapons. Voluntarily pointing an object not designed to be or commonly considered to be a weapon cannot rise to the level of threat necessary to make the object "dangerous." Where the evidence warrants, the trial judge must instruct on the lesser included offense of assault. See, e.g., Greenfield v. U.S., 341 F.2d 411, 119 U.S. App. D.C. 278 (1964) (weapon of soda pop bottle raised question of whether it was a dangerous weapon). As noted in the comment on the Assault Instruction, assault with a dangerous weapon is a general intent crime, Parker v. U.S., 359 F.2d 1009, 123 U.S. App. D.C. 343 (1966) ; Sousa v. U.S., 400 A.2d 1036, 1044 (D.C. 1979) ; see also Ruffin v. U.S., 642 A.2d 1288, 1296 (D.C. 1994) (intentional act need not be directed at a particular person; intentional firing of gun while confined in small car sufficient to sustain ADW charge as to each occupant of the car; "[k]nowledge of the passenger's presence rather than a particular intent to harm them is sufficient under the circumstances presented here"). Voluntary intoxication is not a defense because specific intent is not an element of ADW. Carter v. U.S., 531 A.2d 956, 960 n.12 (D.C. 1987) ; Parker v. U.S., 359 F.2d 1009, 123 U.S. App. D.C. 343, 346 (1966) . Assault with a dangerous weapon often constitutes a lesser included offense of other armed felonies. In such cases, the offenses merge, and a conviction for the greater offense bars a separate conviction for ADW. See, e.g., Norris v. U.S., 585 A.2d 1372 (D.C. 1991) (ADW merges with armed robbery); Leftwitch v. U.S., 460 A.2d 993, 997 (D.C. 1983) ; Harling v. U.S., 460 A.2d 571, 574 (D.C. 1983) ; United States v. Toy, 482 F.2d 741, 157 U.S. App. D.C. 152 (1973) (ADW merges with armed robbery); Evans v. U.S., 392 A.2d 1015 (D.C. 1978) (ADW merged with armed robbery and armed burglary); Bell v. U.S., 332 A.2d 351, 354 (D.C. 1975) (ADW merges with armed rape); U.S. v. Alston, 483 F.2d 1264, 157 U.S. App. D.C. 261 (1973) (ADW merges with assault with intent to commit robbery while armed). See also Waller v. U.S., 389 A.2d 801 (D.C. 1978) (noting that ADW would merge with armed robbery and assault would merge with ADW); Bell v. U.S., 332 A.2d 351, 354 (D.C. 1975) (ADW merges with armed rape); U.S. v. Alston, 483 F.2d 1264, 157 U.S. App. D.C. 261 (1973) (ADW merges with assault with intent to commit robbery while armed). The lesser included offense may be vacated if two convictions were given. See Franey v. U.S., 382 A.2d 1019, 1021 (D.C. 1978) (ADW vacated due to merger with armed robbery); U.S. v. Benn, 476 F.2d 1127, 155 U.S. App. D.C. 180 (1972) (ADW vacated due to merger with assault with intent to commit rape while armed). Trial court need not give jury instructions on lesser included offense if there is no rational basis to do so. See Hebron v. U.S., 625 A.2d 884 (D.C. 1993) (trial court correctly refused to give ADW instruction as a lesser included offense when circumstances were such that it was either murder or manslaugher--uncontroverted facts showed that defendant swung a knife at victim as the victim was fleeing from her, that the knife struck the victim, and that the victim died from the resulting wound). However, convictions for assault with a dangerous weapon and armed robbery or other armed offenses will not merge where the assault is an offense separate and distinct from the other offense on the facts of the case. See Joyner v. U.S., 540 A.2d 457 (D.C. 1988) (defendant convicted of both ADW and assault with intent to kill while armed where each conviction related to separate incident); Floyd v. U.S., 538 A.2d 248 (D.C. 1988) (no double jeopardy violation when defendant convicted of both robbery and ADW; court looked at element of dangerous weapon needed for ADW and not for robbery, legislative intent signaled allowing multiple punishment because carried different penalties, and because each
statute protected different societal interests). "[A] single assaultive act--directed at a group of individuals, but injuring no one--bears only one count of assault." McCoy v. U.S., 890 A.2d 204, 214 n. 28 (D.C. 2006) (citing Joiner v. U.S., 585 A.2d 176 (D.C. 1991) ; Horton v. U.S., 541 A.2d 604, 612 n.10 (D.C. 1988) , and U.S. v. Alexander, 471 F.2d 923, 152 U.S. App. D.C. 371 (1972)) . "[W]here multiple shots are fired at more than one person, multiple convictions are appropriate." McCoy v. U.S., 890 A.2d 204, 214 n. 28 (D.C. 2006) (there were two ADW counts where defendant fired multiple shots at a car, where the shooter knew that the car was occupied by two persons); Ruffin v. U.S., 642 A.2d 1288, 1296 (D.C. 1994) ("the intentional firing of multiple shots into the confined space of a small passenger vehicle could sustain an assault charge on each occupant of the car, even if the assailant did not have actual knowledge that such passengers were present"). See also Gray v. U.S., 585 A.2d 164 (D.C. 1991) (three AWIK convictions where three shots fired at three children whom jury could reasonably infer were visible to the shooter); Kelly v. U.S., 590 A.2d 1031 (D.C. 1991) (appellant convicted of AWIK as to both mother and child even though his intent was to harm the mother, and the child just happened to be there); Government of Virgin Islands v. Dowling, 633 F.2d 660, 666 (3d Cir. 1980) (three assault with a deadly weapon convictions where fleeing felon fired several "bursts of gunfire" at a police car occupied by three officers). Lesser included offenses: No. 4.100, Assault; No. 6.500, Carrying a Pistol Without a, Carrying a Rifle or Shotgun, or Carrying a Dangerous Weapon; No.6.503, Possession of a Prohibited Weapon. Cross references: No. 4.100, Assault; No. 4.103. Aggravated Assault.
Page 229
101 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.102 Instruction 4.102 ASSAULT WITH SIGNIFICANT INJURY
D.C. Official Code 22-404(a)(2) (2001) A. BATTERY ASSAULT The elements of the crime of assault with significant injury, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] with force or violence injured [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; 3. The injury caused by [name of defendant] was a significant bodily injury; and 4. [Name of defendant] either (A) intended to cause significant bodily injury to [name of complainant or third person]; or (B) knew that significant bodily injury to [name of complainant or third person] would result from his/her conduct; or (C) was aware of and disregarded the risk of significant bodily injury that his/her conduct created.
[For this offense, "significant bodily injury" means an injury that requires hospitalization or immediate medical attention in order to preserve the health and well-being of the individual. The fact that an individual who was injured did or did not seek immediate medical attention, was or was not transported by ambulance to a hospital, or did or did not receive treatment at a hospital is not determinative of whether hospitalization or immediate medical attention was required. Instead, you must consider the nature of the alleged injury itself and the practical need in the ordinary course of events for hospitalization or prompt medical attention in determining whether significant bodily injury occurred here.] B. INTENT-TO-FRIGHTEN ASSAULT [The elements of the offense of assault with significant injury, each of which the government must prove beyond a reasonable doubt, are that:] [Another way the government may prove an assault with significant injury is by proving each of the following elements beyond a reasonable doubt, that:] 1. [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; 3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; 4. [Name of defendant's] threatening act caused [name of complainant's] injury; and 5. [Name of defendant] either (A) intended to cause significant bodily injury to [name of complainant or third person]; or (B) knew that significant bodily injury to [name of complainant or third person] would result from his/her conduct; or (C) was aware of and disregarded the risk of significant bodily injury that his/her conduct created.
For this offense, "significant bodily injury" means an injury that requires hospitalization or immediate medical attention in order to preserve the health and well-being of the individual. The fact that an individual who was injured did or did not seek immediate medical attention, was or was not transported by ambulance to a hospital, or did or did not receive treatment at a hospital is not determinative of whether hospitalization or immediate medical attention was required. Instead, you must consider the nature of the alleged injury itself and the practical need in the ordinary course of events for hospitalization or prompt medical attention in determining whether significant bodily injury occurred here. ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. It also reorganized the instruction to divide it into the two kinds of assaults. "Attempted" has been deleted from the title for the assault described in Part A because a significant injury is required to prove this
offense. The Committee did not intend to make any substantive change in the contents of the instruction. The Committee has added the definition of "significant bodily injury" in brackets in Part A. The 2011 release modified this definition to track the statute as well as the Court of Appeals decision in In re R.S., 6 A.3d 854 (D.C. 2010) . It should be given there when the court is instructing the jury only on battery assault. If both Parts are given, then the definition would be given only after both Parts A and B have been read. Finally, the Fifth Edition struck the word "present" from the third element in Part B because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). The instruction allows the judge to use the appropriate assault instruction language, No. 4.100, either or both attempted battery assault or intent-to-frighten assault; an "assault," however, must be proved. In an attempt-battery assault case, the government must prove the defendant not only used actual violence but directed it against the complainant. "Indeed, the intentional infliction of bodily injury is the essence of such an assault." Williams v. U.S., 887 A.2d 1000 (D.C. 2005) . In Williams the defendant's admission that he had thrown or tossed his shoe alone did not support a guilty verdict; the court must also have found--which it did not--that he had aimed it at the complainant to support the conviction. However, the court emphasized that because assault is a "general intent crime", the government does not have to prove that the defendant subjectively intended to inflict injury. Id. See O'Brien v. U.S., 962 A.2d 282, 300 (D.C. 2008) (assault has no specific intent element). Since Williams, the court has reiterated the elements of assault as: "(1) a voluntary (2) act on the part of the defendant to harm another person, and (3) that at the time the defendant committed the act, he must have had the apparent ability to injure the person. Williamson v. U.S., 445 A.2d 975, 978 (D.C. 1982) ." Long v. U.S., 940 A.2d 87, 99 (D.C. 2007) . See also Powell v. U.S., 916 A.2d 890, 893 (D.C. 2006) ; Freeman v. U.S., 912 A.2d 1213, 1219, n. 16 (D.C. 2006) ; Macklin v. U.S., 733 A.2d 962, 964 (D.C. 1999) ("(1) an attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure; (2) the apparent present ability to injure the victim; and (3) the intent to do the act constituting the assault."); Ray v. U. S., 575 A.2d 1196, 1198 (D.C. 1990) . Although it is unlikely that assault with significant bodily injury will be based on facts indicating only threatening acts, the Committee did not wish to exclude the possibility of instances where such threatening acts result in significant bodily injury and give rise to the charge. Accordingly, the court is given the option of including that language. The statute allows three ways to cause significant bodily injury as noted in element 5: intentionally, knowingly and recklessly. Rather than use the word "recklessly," element 5(C) uses the definition from Jones v. U.S., 813 A.2d 220, 224-25 (D.C. 2002) . Section 207 of the Omnibus Public Safety Act of 2006 created this offense. That statute went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006. It remained in effect under various Emergency Acts (Act 16-490, Act 17-10 and Act 17-25). The law was not in effect for the following two periods--from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5 p.m. The permanent law went into effect on April 24, 2007. At the time the Fifth Edition went to print, no cases involving this statute had been decided. Cross references: No. 4.100 Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.103, Aggravated Assault.
Page 232
102 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.103 Instruction 4.103 AGGRAVATED ASSAULT
D.C. Official Code 22-404.01 (2001)
The elements of the crime of aggravated assault, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused serious bodily injury to [name of complainant]; and 2. [Name of defendant] either A. Intended to cause serious bodily injury to [name of complainant or third person]; or B. Knew that serious bodily injury to [name of complainant or third person] would result from his/her conduct; or C. Under circumstances manifesting extreme indifference to human life, [name of defendant] engaged in conduct, voluntarily, on purpose and not by mistake or accident, that created a grave risk of serious bodily injury to [name of complainant or third person]. "Serious bodily injury" is an injury that involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ or mental faculty or a substantial risk of death.____________________________________ Comment:
Although the statute does not explicitly define "serious bodily injury," the Court of Appeals in Nixon v. U.S., 730 A.2d 145, 150 (D.C. 1999) , adopted the definition of "serious bodily injury" found in D.C. Official Code 22-3001(7) (2001). See Jenkins v. U.S., 877 A.2d 1062, 1069 (D.C. 2005) (holding that "the concept, 'serious impairment of physical condition,' broadens impermissibly the core meaning of 'serious bodily injury' established by Nixon"); Zeledon v. U.S., 770 A.2d 972 (D.C. 2001) (defendant's conviction for aggravated assault reversed when trial court did not instruct on definition of "serious bodily injury"). But see Hudson v. U.S., 790 A.2d 531, 534 (D.C. 2002) (failure to instruct on meaning of "serious bodily injury" was harmless error because jury also convicted defendant of malicious disfigurement--a charge requiring a much worse degree of injury). See also Anderson v. U.S., 857 A.2d 451, 464 (D.C. 2004) (the nature of the injuries, including stabbing and being stomped on, and the victim's reaction were sufficient for jury to conclude that complainant suffered serious bodily injury that involved extreme pain); Beaner v. U.S., 845 A.2d 525, 538 (D.C. 2004) (testimony by victim that he lost consciousness from multiple blows to his head placed his injuries within the statutory definition of serious bodily injury). The definitional possibilities of "serious bodily injury" have been reordered to make clear that "subtantial risk" only applies to "death" and not to the other possibilities. See Scott v. U.S., 954 A.2d 1037 (D.C. 2008) . The Court of Appeals has insisted on a rigorous standard for both the definition of "extreme physical pain" and for "protracted and obvious disfigurement" to "avoid trivializing the 'high threshold of injury' erected by the aggravated assault statute." Jackson v. U.S., 940 A.2d 981, 991 (D.C. 2008) (quoting Swinton v. U.S., 902 A.2d 772, 777) . "The level of pain necessary to constitute serious bodily injury must be exceptionally severe if not unbearable." Jackson, 940 A.2d. at 987-88 . The pain may have to be "so severe as to be 'immobilizing' " to satisfy the serious bodily injury requirement. Id. at 988 . For protracted and obvious disfigurement, the government must prove (1) serious physical disfigurement, (2) that the disfigurement was protracted in that it remained beyond a brief recovery period, and (3) that the disfigurement had a degree of genuine prominence sufficient to make it obvious. Id. at 991 . The Court of Appeals has not ruled yet on whether it is necessary to instruct on all five of the definitional possibilities for "serious bodily injury" or only on those for which there is evidence in a case. Cf. Bolanos v. U.S., 938 A.2d 672, 678 (D.C. 2007) (reversing for failure to instruct on part of the definition for which there was evidence). Cross references: No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.102, Assault with Significant Injury; No. 4.114, Assault on a Police Officer; No. 4.130, Threats; No. 9.600, Defenses of Accident and Mistake--Note.
Page 234
103 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.104 Instruction 4.104 MAYHEM
The elements of the offense of mayhem, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused a permanent disabling injury to [name of complainant]. A permanent disabling injury is one that either renders a member or organ of the body wholly useless or leaves its usefulness greatly impaired; 2. [Name of defendant] acted voluntarily and on purpose, and not by mistake or accident; [and] 3. [Name of defendant] intended to permanently or seriously injure [name of complainant] or was aware that his/her conduct created an extreme risk of permanent or serious bodily injury to [name of complainant] but engaged in that conduct nonetheless; [and] [Where there is evidence of mitigation, include the following element and relevant portions of the explanation: 4. There were no mitigating circumstances. Mitigating circumstances can exist in two situations. One exists [exist] when a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of another that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never
adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."] [Mitigating circumstances also exist when a person actually believes that s/he is in danger of serious bodily injury, and actually believes that the use of force that was likely to cause serious bodily harm was necessary to defend against that danger, but one or both of those beliefs are not reasonable. [Thus, mitigating circumstances are similar to self-defense, which is a complete defense to the charges, but different in that self-defense requires that person's actual beliefs about both the danger and the need to respond to it be reasonable.]] To prove mayhem, the government must prove beyond a reasonable doubt that there were no mitigating circumstances. [If it does not, you must find [name of defendant] not guilty of mayhem and go on to consider whether the government has proved him/her guilty of [insert appropriate lesser included offenses.]] [If an age enhancement was charged, insert Sentencing Enhancement Based on Age, No. 8.103.]____________________________________ Comment: Perkins v. U.S., 446 A.2d 19, 19, 25-26 (D.C. 1982) , makes clear that malicious disfigurement and mayhem differ in their mental elements, in that malicious disfigurement requires proof of specific intent in addition to proof of malice, whereas mayhem does not. See id. at 19 , 25-26. Sufficient intent is inferred as a matter of law from the "malicious and willful commission of the act." Id. at 25 . Thus, malicious disfigurement requires both specific intent and malice, whereas mayhem requires only malice (along with general intent). The court in Wynn v. U.S., 538 A.2d 1139, 1145 (D.C. 1988) (citing Bridgeford v. U.S., 411 A.2d 633, 635 n. 4 (1980)) , in its discussion of mayhem while armed, stated the elements of mayhem as (1) an act causing permanent injury to another, (2) general intent to do the injurious act and (3) willful and malicious commission of the act. See also Moore v. U.S., 599 A.2d 1381, 1383 (D.C. 1991) . The definition of "permanent disabling injury" in the first element is from Edwards v. U.S., 583 A.2d 661, 668 & n. 12 (D.C. 1990) . See also Whitaker v. U.S., 616 A.2d 843, 854-55 (D.C. 1992) ; Smith v. U.S., 466 A.2d 429, 431 (D.C. 1983) . Element two in this instruction provides the general intent element. As in other instructions, the Committee has chosen to omit the word "intentionally," and instead provide the jury with the definition of "intentionally." The third element, malice, requires proof of a subjective mental state, and where appropriate, proof of the absence of self-defense or heat of passion. See generally Comber v. U.S., 584 A.2d 26, 38-41 (D.C. 1990) (en banc) (discussing malice in the context of murder). The Committee has defined the mental state required rather than using the word "malice" with an accompanying definition. As mayhem, unlike malicious disfigurement, does not require a specific intent to cause the forbidden result, the Committee concluded that the mental state required was an intent to cause either permanent injury or an intent to cause serious bodily injury. Because malice generally does not require specific intent, but may involve a conscious disregard of an extreme risk of harm, the jury is instructed that the mental element may be satisfied by proof of a conscious disregard of an extreme risk of serious bodily injury. See, e.g., id. at 39 (conscious disregard of extreme risk of death or serious bodily injury sufficient for malice in murder); Thomas v. U.S., 557 A.2d 1296, 1299 (D.C. 1989) (awareness of risk of harm sufficient for malicious destruction of property). For further explanation of the reasons underlying the Committee's definition of
the mental element, the reader is referred to the comment on Instruction No. 4.15, Malicious Disfigurement. The 2007 release deleted the specific reference to self-defense as an element in favor of inserting self-defense instructions where appropriate. It is certainly appropriate to instruct on self-defense when it is raised by the defendant. Specifically, the jury should be instructed that where self-defense is presented, failure by the government to disprove self-defense should result in an acquittal. Because of inconsistent usage of self-defense instructions by the assault instructions, the 2007 release deleted references to self-defense instructions in the assault instructions. This change was to avoid misleading users of the Redbook who might otherwise have concluded that the failure to cross reference the self-defense instruction in a specific assault instruction meant that a self defense instruction should not be given. A trial court should, however, identify each of the charges to which self-defense applies when giving self-defense instructions. See Jones v. U.S., 893 A.2d 564, 568 (D.C. 2006) . The mitigating circumstances paragraphs are bracketed to suggest that the mitigating circumstance defense instruction is to be given only where the evidence in the case warrants the instruction. See Comber, 584 A.2d at 41 n. 17 . If the fourth element is not given, then the subsequent paragraphs defining mitigating circumstances should not be given. The instruction contains only the common kinds of mitigating circumstances. See id., 584 A.2d at 41 ; Logan v. U.S., 483 A.2d 664, 671 (D.C. 1984) ; see, e.g., U.S. v. Wharton, 433 F.2d 451, 458-59, 139 U.S. App. D.C. 293, 300-01 (1970) . In cases where self-defense is not presented, the first bracketed portion, concerning adequate provocation will be sufficient. Where self-defense is presented, both bracketed paragraphs should be given. There may be other kinds of mitigation raised by the evidence. The court need not repeat the government's burden of disproving mitigation where more than one kind of mitigation is present. The bracketed sentence that explains the difference between mitigating circumstances self-defense as a complete defense is for cases where the defendant has raised self-defense as a complete defense because the jury may find imperfect self-defense instead. If there is evidence of adequate provocation or other sufficient mitigation, it is suggested that, if requested, a lesser included offense of assault would be appropriate. See Moore, 599 A.2d 1381, 1383 (D.C. 1991) (assault is a lesser included offense of mayhem). Accordingly, an instruction is provided (within interior brackets) for instances in which a lesser included offense is given based on the absence of mitigating circumstances for that offense. A lesser included offense would also be appropriate where there is a rational basis for a finding the government has not proved that the victim suffered a permanent injury. Id. at 1384 and n. 4. The Committee notes that in most cases mayhem will be charged as an armed offense and that therefore assault with a dangerous weapon will be the appropriate lesser included offense. See Hayward v. U.S., 612 A.2d 224, 225 n.1 (D.C. 1992) . For further discussion of malice, see Comment to No. 4.105, Malicious Disfigurement. See also Perkins, 446 A.2d at 26 (infliction of injury forbidden by a mayhem-type statute may constitute an offense, notwithstanding the possibility that injury could be alleviated by medical treatment; court correct in rejecting instruction suggesting injury not permanent because of medical treatment in malicious disfigurement case); Edwards, 583 A.2d at 668-89 (malicious disfigurement and mayhem do not merge); Smith, 466 A.2d at 432 (evidence sufficient to support conviction of assault with intent to commit mayhem); see generally Vest v. U.S., 905 A.2d 263, 264 (D.C. 2006) (convictions for mayhem while armed, aggravated assault while armed, and assault with a dangerous weapon merged); Bodrick v. U.S., 892 A.2d 1116, 1122 (D.C. 2006) (government conceded that mayhem conviction merged with aggravated assault conviction).
The last bracketed sentence of the instruction applies if the government has charged a sentencing enhancement based on the age of the victim. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen's enhancement when the victim of mayhem was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. See D.C. Code 22-3603. The new law became effective on April 24, 2007. Prior to that, emergency legislation, the Omnibus Public Safety Emergency Amendment Act of 2006, went into effect on July 19, 2006 and remained in effect (except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m). Lesser included offense: No. 4.100, Assault. Cross references: No. 4.100, Assault; No. 4.105, Malicious Disfigurement; Nos. 4.200-4.214, Homicide; No. 5.400, Malicious Destruction of Property; No. 8.103, Sentencing Enhancements Based on Age.
Page 238
104 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.105 Instruction 4.105 MALICIOUS DISFIGUREMENT
The elements of the offense of malicious disfigurement, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] inflicted an injury on [name of complainant]; 2. [Name of defendant] acted voluntarily, on purpose, and not by mistake or accident; 3. At the time [name of defendant] inflicted the injury, s/he intended to disfigure [name of complainant] [; and] 4. As a result of the injury, [name of complainant] was permanently disfigured [; and] [5. There were no mitigating circumstances]. "Disfigure" means to make less complete, perfect or beautiful in appearance or character. A person is permanently disfigured if s/he is appreciably less attractive or if a part of his/her body is to some appreciable degree less useful or functional than it was before the injury. [Mitigating circumstances [can exist in two situations. One situation is] [occur] when a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of others that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered
"adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."]] [Mitigating circumstances also occur when a person actually believes that s/he is in danger of serious bodily injury, and actually believes that the use of force that was intended to cause disfigurement was necessary to defend against that danger, but one or both of those beliefs are not reasonable. [Thus, mitigating circumstances are similar to self-defense, which is a complete defense to the charges, but different in that self-defense requires that a person's actual beliefs about both the danger and the need to respond to it be reasonable.] To prove malicious disfigurement, the government must prove beyond a reasonable doubt that there were no mitigating circumstances. [If it does not, you must find [name of defendant] not guilty of malicious disfigurement and go on to consider whether the government has proved him/her guilty of [aggravated assault] [assault with significant injury] [assault with a dangerous weapon] [assault].] [If an age enhancement was charged, insert Sentencing Enhancement Based on Age, No. 8.103.]____________________________________ Comment: In Perkins v. U.S., 446 A.2d 19, 23-26 (D.C. 1982) , the court held that malicious disfigurement requires a specific intent to disfigure. It also provided a definition of "disfigure" and "permanently disfigured." Id. Both of these definitions have been incorporated into the instruction. In Perkins, the court provided an instruction for use by the trial court, id. at 26 , that is as follows:
The essential elements of the offense of malicious disfigurement, each of which the government must prove beyond a reasonable doubt, are: (1) That the defendant inflicted an injury on the complaining witness, (2) That, as a result of the injury, the complaining witness was permanently disfigured, (3) That, at the time the defendant inflicted the injury, he specifically intended to disfigure the complaining witness, (4) That, when he inflicted the injury, the defendant was acting with malice. To be permanently disfigured means that the person is appreciably less attractive or that a part of his body is to some appreciable degree less useful or functional than it was before the injury. Malice is a state of mind or heart regardless of the life and safety of other. It may also be defined as the condition of mind which prompts a person to do willfully, that is on purpose without adequate provocation, justification or excuse, a wrongful act the foreseeable consequence of which is a serious permanent disfiguring bodily injury to another. Id. See also Foreman v. U S., 506 A.2d 1124, 1126 n.3 (D.C. 1986) (listing the elements of malicious disfigurement); see generally Wages v. U.S., 952 A.2d 952 (D.C. 2008) (defendant "may harbor at the
same time ... an intent to murder and an intent to maim, disfigure, or disable"). The instruction recommended by the Committee does not precisely track the language in Perkins, although it does incorporate the essential elements as expressed in Perkins. 446 A.2d at 25-26 . The Committee's instruction differs from the Perkins language in that (1) it omitted the term "malice," providing instead the appropriate definitions of that term, and (2) it placed in brackets those aspects of malice, normally the absence of self-defense and the absence of mitigating circumstances, which are given to the jury only when there is evidence to support the instruction. The Committee chose this approach based upon a number of decisions from the Court of Appeals. First, in Comber v. U.S., 584 A.2d 26 (D.C. 1990) (en banc), the court discussed fully the concept of malice in the common law of murder. The court made clear that, for murder, malice could involve one of four distinct mental states: intent to kill; intent to inflict serious bodily harm; wanton and willful disregard of an unreasonable human risk (depraved heart murder); and felony murder, where malice is inferred. Id. at 38-39 . In addition, even if the person has one of these four mental states, malice does not exist if the act is justified, excused, or committed under recognized circumstances of mitigation (most commonly, adequate provocation). Id. at 40-42 . Thus, under Comber, if an intent to kill or inflict serious bodily injury is required and proven, there is evidence of justification, excuse or mitigation, and the government proves the absence of those mitigating circumstances, the malice element of murder is satisfied. The Court of Appeals had refused to distinguish malice in homicide offenses from malice in property offenses like destruction of property and arson. See Thomas v. U.S., 557 A.2d 1296, 1299 (D.C. 1989) ; Carter v. U.S., 531 A.2d 956, 963 (D.C. 1987) ; Charles v. U.S., 371 A.2d 404, 411 n.12 (D.C. 1977) . Additionally, in Brown v. U.S., 584 A.2d 537, 539 n. 2 (D.C. 1990) , the Court of Appeals, in discussing the law of provocation, suggested that the law was the same for homicide as well as non-homicide cases such as destruction of property, and malicious disfigurement. And it observed, citing Perkins, that "[i]n other non-homicide cases, we have defined malice as intentional conduct done without provocation, justification, or excuse." Id. at n.2 (citing 446 A.2d at 22 ). Finally, in Burton v. U.S., 818 A.2d 198, 200 (D.C. 2003) (per curiam), the Court of Appeals considered whether the language recommended by the Committee in this instruction adequately addressed the issue of malice. The Court specifically found that the word "malice" need not appear as an element in the instruction. Id. It noted that "all of the concepts traditionally embraced by the term 'malice' are encompassed within the requirements that the government prove specific intent to permanently disfigure the victim, as well as the absence of both self-defense (where raised) and any mitigating circumstances [where raised]." Id. The Court concluded that the language of Instruction 4.15 reflected no substantive change in the definition of malicious disfigurement, and approved of the instruction. Id. As discussed above, the subjective mental state required for malicious disfigurement, in addition to general intent, is the specific intent to disfigure. Perkins, 446 A.2d at 23-25 (discussion of common law distinction between malicious disfigurement and mayhem); see also Peoples v. U.S., 640 A.2d 1047, 1055 (D.C. 1994) (specific intent can be inferred from the circumstances surrounding the disfiguring act). Elements two and three express the mental state required: two, general intent, and three, specific intent. If there is evidence of justification, excuse, or provocation, the element of malice is not satisfied unless the government proves the absence of those mitigating circumstances. Elements five and six express these elements. Following Comber, 584 A.2d at 41 n.17 , as well as the property cases, see supra, the Committee has suggested that instructions on justification, excuse, or provocation be given only where the evidence so warrants. The 2007 release deleted the specific reference to self-defense as an element in favor of inserting
self-defense instructions where appropriate. It is certainly appropriate to instruct the jury when self-defense is raised by the defendant. Specifically, the jury should be instructed that where self-defense is presented, failure by the government to disprove self-defense should result in an acquittal. Because of inconsistent usage of self-defense instructions by the assault instructions, the 2007 release deleted references to self-defense instructions in the assault instructions. This change was to avoid misleading users of the Redbook who might otherwise have concluded that the failure to cross reference the self-defense instruction in a specific assault instruction meant that a self-defense instruction should not be given. A trial court should, however, identify each of the charges to which self-defense applies when giving self-defense instructions. See Jones v. U.S., 893 A.2d 564, 568 (D.C. 2006) . Comber mentions several types of mitigating circumstances. 584 A.2d at 41 . Among them, adequate provocation and heat of passion are discussed in the first bracketed paragraph of the mitigation element (no. 5) of the malicious disfigurement instruction. Id. The second bracketed paragraph on mitigation concerns imperfect self-defense. Id. If the fifth element is not given, then the paragraphs defining mitigating circumstances should not be given. The bracketed paragraphs on mitigation contain only the common kinds of mitigation; there may be other kinds of mitigation raised by the evidence. Id. In cases where self-defense is not presented, the first bracketed portion, concerning adequate provocation, will be sufficient. Where self-defense is presented, both bracketed paragraphs should be given. The judge need not repeat the government's burden of disproving mitigation where the jury is instructed on both mitigation paragraphs. (For a further discussion of mitigation, the reader is referred to the comment in Instruction No. 4.202, Homicide). The bracketed sentence that explains the difference between mitigating circumstances self-defense as a complete defense is for cases where the defendant has raised self-defense as a complete defense because the jury may find imperfect self-defense instead. With respect to disfigurement, the Court of Appeals has noted that the possibility that medical treatment may alleviate scarring is irrelevant to the determination of whether there is permanent disfigurement. Foreman, 506 A.2d at 1127 (where victim scarred, government need not introduce evidence of pre-injury appearance to prove disfigurement, since cosmetic effects of scarring may be sufficiently severe to show permanent disfigurement); see also Perkins, 446 A.2d at 26-27 . Aggravated assault while armed is a lesser included offense of malicious disfigurement while armed, Burton v. U.S., 818 A.2d 198, 201 (D.C. 2003) ; Hudson v. U.S. 790 A.2d 531, n.3 at 534 (D.C. 2002) . Logically, so would assault with a significant injury while armed, (no reported cases), and simple assault, Burton v. U.S., supra. If the defendant uses the weapon in the attack, assault with a dangerous weapon is also a lesser included offense, Curtis v. U.S., 568 A.2d 1074, 1076 (D.C. 1990) , although if the while armed element arises only out of being armed with or having a readily available a weapon, and not from actual use of the weapon, assault with a dangerous weapon may not be a lesser included offense, see, Perkins v. U.S., 446 A.2d 19, 26-27 (D.C. 1982) . See also Edwards, 583 A.2d 661, 668-69 (D.C. 1990) (whether court looked only to elements, or also to facts, mayhem and permanent disfigurement did not merge). The last bracketed sentence of the instruction applies when the government has charged a sentencing enhancement based on the age of the victim. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen's enhancement when the victim of the malicious disfigurement was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. See D.C. Code 22-3603. The new law became effective on April 24, 2007. Prior to that, emergency legislation, the Omnibus Public Safety Emergency Amendment Act of 2006, went into effect on July 19, 2006 and remained in effect (except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m).
Lesser included offense: No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.102, Assault with Significant Injury; No. 4.103, Aggravated Assault. Cross references: No. 4.100, Assault; No. 4.104, Mayhem; Nos. 4.200-4.214, Homicide; No. 5.400, Malicious Destruction of Property; No. 8.101, Armed Offenses--Added Element; No. 8.103, Sentencing Enhancements Based on Age.
Page 243
105 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.110 Instruction 4.110 ASSAULT WITH INTENT TO COMMIT ROBBERY
D.C. Official Code 22-401 (2001) A. ATTEMPTED BATTERY ASSAULT The elements of the offense of assault with intent to commit robbery, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant], with force or violence, injured or attempted to injure [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; [and] [3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; and] 4. At the time of the attempt to injure, [name of defendant] intended to rob [name of complainant]. B. INTENT-TO-FRIGHTEN ASSAULT [The elements of the offense of assault with intent to commit robbery, each of which the government must prove beyond a reasonable doubt, are that:] [Another way the government may prove an assault with intent to commit robbery is by proving each of the following elements beyond a reasonable doubt, that:]
1. [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; 3. At the time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; and 4. At the time of the threatening act, [name of defendant] intended to rob [name of complainant].
A robbery is the taking and carrying away of property of some value from the person or from the immediate actual possession of [name of complainant] against his/her will by [force and violence] [sudden or stealthy seizure or snatching] [putting the [name of complainant] in fear], without right to do so, and with the intent to steal the property. In order to find [name of defendant] guilty of assault with intent to commit robbery, it is not necessary for you to find that s/he accomplished his/her purpose to rob. ____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. It also reorganized the instruction to divide it into the two kinds of assaults. The Committee did not intend to make any substantive change in the contents of the instruction. The Fifth also struck the word "present" from the third element in Parts A and B because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). This instruction allows the court to use the appropriate language from the assault instruction, No. 4.110, either or both attempted battery assault or intent to frighten assault. See Comment to No. 4.110. Specific intent to rob can be inferred from the totality of the evidence. Owens v. U.S., 497 A.2d 1086 (D.C. 1985) (jury could reasonably infer that assailants intended to rob victim when they accosted him in the alley). See e.g., Singleton v. U.S., 488 A.2d 1365 (D.C. 1985) (assailant's testimony that defendant was attempting to reach complainant's hip pocket, corroborated by police officer at the scene, was sufficient to support conviction for assault with intent to commit robbery); Bowles v. U.S., 439 F.2d 536, 538, 142 U.S. App. D.C. 26 (1970) (appearance at crime scene of victim's pocket ripped and turned inside out, discarded billfold nearby, scattered change, together with assault, sufficient to establish specific intent to rob). But see Jones v. U.S., 516 A.2d 929, 932 (D.C. 1986) (little evidence beyond the assault would not support an inference of intent to rob beyond a reasonable doubt; evidence included violence and contact initiated by victims, and no words or conduct by assailants indicated attempt to search or remove anything from scene of encounter). The government need not show intent to rob a specific person, only the specific intent to commit robbery. Young v. U.S., 288 F.2d 398, 109 U.S. App. D.C. 414 at 416 (1961) (Young and accomplice assaulted an undercover police officer while attempting to rob a restaurant. Count of assualt with intent to commit robbery was upheld even though it did not name the person(s) intended to be robbed). Lesser included offenses: No. 4.100, Assault; No. 4.301, Attempted Robbery. Cross references: No. 3.100, Defendant's State of Mind--Note; No. 4.100, Assault; No. 8.101, Armed
Offenses--Added Element.
Page 246
106 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.111 Instruction 4.111 ASSAULT WITH INTENT TO KILL
D.C. Official Code 22-401 (2001) A. ATTEMPTED BATTERY ASSAULT The elements of the offense of assault with intent to commit kill, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant], with force or violence, injured or attemped to injure [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; [and] [3. At that time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; and] 4. At that time, [name of defendant] intended to kill [name of complainant] [a person]. B. INTENT-TO-FRIGHTEN ASSAULT [The elements of the offense of assault with intent to commit kill, each of which the government must prove beyond a reasonable doubt, are that:] [Another way the government may prove an assault with intent to commit kill is by proving each of the following elements beyond a reasonable doubt, that:]
1. [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; 3. At that time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; and 4. At that time, [name of defendant] intended to kill [name of complainant] [a person]. ____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. It also reorganized the instruction to divide it into the two kinds of assaults. The Committee did not intend to make any substantive change in the contents of the instruction. The Fifth Edition also struck the word "present" from the third element in Parts A and B because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). The instruction allows the court to use the appropriate language from the assault instruction, No. 4.100, either or both attempted battery assault or intent to frighten assault. Although it is unlikely that an assault with intent to kill will be based on facts indicating only threatening acts, the Committee did not wish to exclude the possibility of instances where such threatening acts, accompanied by other circumstances, give rise to a charge of assault with intent to kill. Accordingly, the court is given the option of including that language. Assault with intent to kill does not require proof of malice, i.e., proof of both an intent to kill or of reckless and wanton conduct grossly deviating from a raesonable standard of care and the absence of provocation, justification, and excuse. Logan, 483 A.2d 664, 672 (D.C. 1984) , Comber v. U.S., 584 A.2d 26, 39, 41 (definition of malice). Rather, the specific intent to kill is the only mental state required. Hence, a person may be convicted of assault with intent to kill even though, had the victim died, a charge of manslaughter, not murder, would have been appropriate. Id. at 672-73 and n. 11. The government must prove specific intent to kill beyond a reasonable doubt. U.S. v. Martin, 475 F.2d 943, 154 U.S. App. D.C. 359 (1973) . Intent is a state of mind, and unless admitted by the defendant, must be shown by circumstantial evidence. Jones v. U.S., 516 A.2d 929, 931 (D.C. 1986) . Moreover, the assault and the intent to kill must concur. Davis v. U.S., 16 App. D.C. 442, 449 (1900) . In determining whether sufficient evidence of intent exists to support a jury's verdict, the court should examine the totality of the evidence, including statements of the defendant (e.g., "I will kill you," U.S. v. Bridges, 432 F.2d 692, 139 U.S. App. D.C. 259, 261 (1970)) and actions of the defendant (e.g., shooting the victim at close range), Di Giovanni v. U.S., 810 A.2d 887 (D.C. 2002) (even if the jury believed that the defendant had aimed at two men who attacked him, since the gun which he fired at close range was pointed in the victim's direction, a jury could reasonably conclude that the defendant knew the victim was in his "zone of harm" and, thus, he acted with the specific intent to kill); U.S. v. Robertson, 507 F.2d 1148, 165 U.S. App. D.C. 325 (1974) . Concerning the sufficiency of evidence of specific intent to kill, see Gray v. U.S., 585 A.2d 164, 165 (D.C. 1991) (three separate shots fired at three children sufficient to prove intent to kill); Bedney v. U.S.,
471 A.2d 1022, 1024 (D.C. 1984) (lethal intent can be proved without showing that defendant succeeded in wounding intended victim); In re G.O.B., 343 A.2d 567, 569 (D.C. 1975) (strangling the victim until he lost conciousness after the defendants had taken his money was sufficient to show intent to kill). A single transaction can result in multiple counts of assault and multiple offenses. Consecutive sentences can be imposed where the actions constituted distinct sucessive episodes. Smith v. U.S., 418 F.2d 1120, 135 U.S. App. D.C. 284 (1969) (consecutive sentences not imposed for assault incident involving hitting with curling iron and hammer, and then throwing victim down flight of stairs, because not sufficient evidence that they were distinct criminal episodes). See also Taylor v. U.S., 508 A.2d 99, 100 (D.C. 1986) (separate, consecutive sentences for armed robbery and assault with intent to kill were not precluded by the merger doctrine); Leftwitch v. U.S., 460 A.2d 993, 997 (D.C. 1983) (offense of assault with intent to kill while armed merges with assault with a dangerous weapon where the two offenses arise out of the same act); Johnson v. U.S., 398 A.2d 354, 369-70 (D.C. 1979) (for purposes of instructing jury, court must distinguish between two separate incidents, both of which might have supported conviction for assault with intent to kill). Lesser included offenses: No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon. Cross references: No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.112, Assault with Intent to Commit Murder; No. 4.200 et seq., Homicide; No. 8.101, Armed Offenses--Added Element.
Page 249
107 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.112 Instruction 4.112 ASSAULT WITH INTENT TO COMMIT MURDER
D.C. Official Code 22-403 (2001) A. ATTEMPTED BATTERY ASSAULT The elements of the offense of assault with intent to murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant], with force or violence, injured or attempted to injure [name of complainant] [another person]; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; [and] [3. At that time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; [and]] 4. At that time, [name of defendant] intended to kill [name of complainant][.][; and] 5. [There were no mitigating circumstances.] [Name of defendant] did not act in self-defense.] [There were no mitigating circumstances and [name of defendant] did not act in self-defense.] B. INTENT-TO-FRIGHTEN ASSAULT
[The elements of the offense of assault with intent to murder, each of which the government must prove beyond a reasonable doubt, are that:] [Another way the government may prove an assault with intent to commit kill is by proving each of the following elements beyond a reasonable doubt, that:] 1. [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury; 2. S/he did so voluntarily, on purpose, and not by mistake or accident; 3. At that time, [name of defendant] had the apparent ability to injure [name of complainant] [a person]; [and] 4. At that time of the threatening act, [name of defendant] intended to kill [name of complainant] [.] [; and] 5. [There were no mitigating circumstances.] [[Name of defendant] did not act in self-defense.] [[Name of defendant] did not act in self-defense and there were no mitigating circumstances.]
Intent to kill means purpose or conscious intention to cause death. [Self-Defense
Self-defense is a complete defense to assault with intent to murder. The government must prove beyond a reasonable doubt that the defendant did not act in self-defense. If it does not, you must find the defendant not guilty of assault with intent to murder. [The difference between self defense that is a mitigating circumstance and self defense that is a complete defense is whether the defendant's honest beliefs were unreasonable or reasonable.] [Give self-defense instructions]] [Mitigating circumstances Mitigating circumstances exist in two situations. One is when a person acts in the heat of passion caused by adequate provocation. Heat of passion includes rage, resentment, anger, terror and fear. A person acts upon adequate provocation if his/her action is provoked by conduct that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. An act of violence or an immediate threat of violence may be adequate provocation, but a slight provocation, entirely out of proportion to the defendant's retaliation, is not adequate provocation. Mere words, no matter how offensive, are not adequate provocation. [Provocation must be such as would provoke a reasonable person--in other words, a sober person. Therefore, if the defendant was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be adequate.] The other situation where mitigating circumstances can exist is when the defendant did not reasonably act in self-defense. These mitigating circumstances exist where the defendant actually and honestly believes that s/he is in
danger of serious bodily injury, and actually and honestly believes that the use of force is necessary to defend against that danger, but one or both of those beliefs are unreasonable. The government must prove beyond a reasonable doubt that there were no mitigating circumstances.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. It also reorganized the instruction to divide it into the two kinds of assaults. The Committee did not intend to make any substantive change in the contents of the instruction. The Fifth Edition also struck the word "present" from the third element in Parts A and B because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). The Court of Appeals in U.S. v. Hobbs, 594 A.2d 66 (D.C. 1991) , held that D.C. Code 22-403 (2001) (formerly D.C. Code 22-503 (1981)), includes the offense of assault with intent to murder. Id. at 69 . "This construction gives effect to Congress' intention in enacting [D.C. Code] 16-2301(3)(A) 'to authorize the prosecution of certain juveniles as adults only when they are charged with an assault committed with a malicious intent to kill.' " Id., quoting Logan v. U.S., 483 A.2d 664, 676 (D.C. 1984) . Under Logan, juveniles who are 16 or 17 at the time of the offense may be prosecuted, at the election of the government, for assault with intent to murder, but not for assault with intent to kill, unless there is a judicial transfer under D.C. Code 16-2307 (2001), after a determination that there is no reasonable prospect for rehabilitation. 483 A.2d at 676-77 . See also Hunter v. U.S., 590 A.2d 1048 (D.C. 1991) . The Court of Appeals has not explicitly set out the elements of the offense of the assault with intent to murder although it has indicated strongly that an intent to kill is an essential element. As noted in Logan, in a passage reiterated in Hobbs, the court noted Congress' intent in passing D.C. Code 16-2301 to authorize prosecution of certain juveniles as adults "only when they are charged with an assault committed with a malicious intent to kill." Logan, 483 A.2d at 676 ; Hobbs, 594 A.2d at 69 . In Hunter, the court stated that "the difference between assault with intent to murder while armed and assault with a dangerous weapon was proof of a malicious intent to kill." 590 A.2d at 1051 . The conclusion that an intent to kill is required is consistent with the law in virtually all the jurisdictions in which assault with intent to murder is a crime. See, e.g., State v. Jenkins, 515 A.2d 465, 472 (Md. 1986) ; Glenn v. State, 511 A.2d 1110, 1115 (Md. Ct. Sp. App. 1986) ; Commonwealth v. Henson, 476 N.E. 2d 947, 952-53 (Mass. 1985) ; People v. Taylor, 375 N.W.2d 1, 7-8 (Mich. 1985) ; State v. Fournier, 448 A.2d 1230, 1233 (R.I. 1982) ; People v. Murtishaw, 631 P.2d 446, 464 (Cal. 1981) ; McArdle v. State, 372 So. 2d 897, 900 (Ala. Crim. App. 1979) ; Fuller v. State, 568 P.2d 900, 903 (Wyo. 1977) ; Bell v. State, 501 S.W. 2d 137, 138 (Tex. Crim. App. 1973) . See also 40 C.J.S. 98. The Committee recognizes that certain statements in Logan might be taken to indicate that intent to seriously injure or awareness of extreme risk of death or serious bodily injury would be sufficient, see 483 A.2d at 671-72 , 673 n. 12 (citing homicide cases for proposition that malice may be found even where there is no intent to kill, as where the defendant intended serious bodily injury or acted with awareness of extreme risk of death or serious bodily injury). In view of the other statements from the Court of Appeals and the case law in other jurisdictions, however, the Committee recommends that the jury be instructed that intent to kill is a required element. The definition of specific intent to kill is from Logan, 483 A.2d at 671 . For further discussion of specific intent to kill, see Comment to No. 4.111, Assault with Intent to Kill.
Assault with intent to murder requires proof of a malicious intent to kill, in contrast to assault with intent to kill, which requires no showing of malice. Logan, 483 A.2d at 672-73 . Therefore, the judge will need to instruct on the absence of justification, mitigating circumstances, or excuse when there is evidence in the case warranting the instruction. See generally Comber v. U.S., 584 A.2d 26, 40-41 & n.17 (1990) (en banc). For a full discussion of that aspect of malice involving the absence of justification, excuse and mitigating circumstances, see Comment to No. 4.201. This portion of the instruction is given in brackets because there must be evidence warranting it. The Committee has offered, in parentheticals, mitigating circumstances, self-defense, and both mitigating circumstances and self-defense. The judge should choose the defense warranted by the evidence. Forms of excuse other that self-defense--for example, accident--are not offered, but should be given where appropriate. The Court of Appeals has made clear that an assault may consist of either an attempted battery or threatening acts. See, e.g., Smith v. U.S., 593 A.2d 205 (D.C. 1991) ; Robinson v. U.S., 506 A.2d 572 (D.C. 1986) . See generally Comment, Assault, No. 4.100. Although it is unlikely that an assault with intent to murder will be based on facts indicating only threatening acts, the Committee did not wish to exclude the possibility of instances where such threatening acts, accompanied by other circumstances, give rise to a charge of assault with intent to murder. Accordingly, the judge is given the option of including that language. Self-defense is a complete defense to assault with intent to murder. Although the 2007 release deleted the reference to inserting self-defense instructions when appropriate, the Committee decided to put that reference back in the 2008 release. A trial court should identify each of the charges to which self-defense applies when giving the self-defense instruction. Jones v. U.S., 893 A.2d 564, 568 (D.C. 2006) . Where there is an issue arising from the evidence involving intent to kill or mitigating circumstances (heat of passion caused by adequate provocation or imperfect self-defense), an appropriate lesser included offense instruction should be given. The Committee was agreed that assault and assault with a dangerous weapon (if a weapon is involved) are lesser included offenses of assault with intent to murder. The Committee was not agreed on whether assault with intent to kill is a lesser included offense of assault with intent to murder. Compare Hobbs, 594 A.2d at 69 (noting parties agreement that assault with intent to kill is a lesser included offense of assault with intent to murder, though its penalty is greater) with Craig v. U.S., 523 A.2d 567, 568-69 (D.C. 1987) (to be a lesser included offense, the offense must both involve fewer of the same constituent elements and carry a lighter sentence). Lesser included offenses: No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon. Cross references: No. 3.101, Proof of State of Mind; No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.111, Assault with Intent to Kill; Nos. 4.200 et seq., Homicide; No. 8.101 Armed Offenses--Added Element; No. 8.103, Sentencing Enhancements Based on Age; No. 9.320, Consent; No. 9.600, Defenses of Accident and Mistake--Note.
Page 253
108 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.113 Instruction 4.113 ASSAULT WITH INTENT TO COMMIT FIRST OR SECOND DEGREE SEXUAL ABUSE OR SEXUAL ABUSE OF A CHILD
The elements of assault with intent to commit [first degree sexual abuse] [second degree sexual abuse] [sexual abuse of a child], each of which the government must prove beyond a reasonable doubt, are that: 1. [(a). [Name of defendant], with force or violence, injured or attempted to injure [name of complainant] [another person];] [or] [(b). [Name of defendant] committed a threatening act that reasonably would create in another person a fear of immediate injury;] or, that would create in another person a reasonable fear of immediate injury;] 2. [Name of defendant] did so voluntarily and on purpose and not by mistake or accident; [and] 3. [Name of defendant] did so with the intent to commit [first degree sexual abuse] [second degree sexual abuse] [child sexual abuse][.] [; and] [4. At that time, [name of defendant] appeared to have the ability to injure [name of complainant] [a person].] Injury means any physical injury, however small, including a touching offensive to a reasonable person. An assault may be committed without actually touching, striking, or committing bodily harm on another; but the mere use of threatening words is not an assault.
[First degree sexual abuse is engaging in a sexual act with another person or causing another person to engage in a sexual act by (a) using force against that person, (b) threatening that person or placing that person in reasonable fear that any person would be subjected to death, bodily injury, or kidnapping, (c) rendering the other person unconscious, or (d) administering an intoxicant to the other person by force or threat of force. Force means the use or threatened use of a weapon, the use of such physical strength or violence as is sufficient to overcome, restrain or injury a person, or a threat sufficient to coerce or compel submission by the victim.] [Second degree sexual abuse is engaging in a sexual act with another person or causing another person to engage in a sexual act by threatening or placing that person in reasonable fear of something other than death, bodily injury, or kidnapping.] [Child sexual abuse is engaging in a sexual act or contact with a person under 16 years of age or causing a person under 16 years of age to engage in a sexual act or contact when the perpetrator is at least four years older than the child.] "Sexual act" means the penetration, however slight, of the anus or vulva of another by a penis; contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or the penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person. ["Sexual contact" means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of, or abuse or humiliate any person.] It is not necessary that the sexual act or sexual contact actually occur. The government need prove only that [name of defendant] intended to commit such a sexual act or sexual contact. [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103.] ____________________________________ Comment: This instruction combines the elements of assault in D.C. Official Code 22-401 (2001) with statutory language for first degree, second degree, and child sexual abuse. The definitions of "force," "sexual act" and "sexual contact" are taken from D.C. Official Code 22-3001 (2001), except that they omit the words harass" and "degrade" "harass" and "degrade" These words may be used, of course, in appropriate circumstances. Depending on the facts of the case, the court may give more than one of the alternatives for the first element The fourth element is bracketed because it need not be given where the victim was actually injured. The last bracketed sentence of the instruction applies when the victim is a minor or a senior citizen. The Fifth Edition also struck the word "present" in the fourth because it is redundant of the phrase "at the time." Long v. U.S. 940 A.2d 87, 99 (D.C. 2007) ("at the time the defendant committed the act, he must have had the apparent ability to injure the person"). If a charge is based on a single incident or course of conduct, a unanimity instruction is not required. See Parks v. United States, 627 A.2d 1, 8 (D.C. 1993) ; Schad v. Arizona, 501 U.S. 624 (1991) (jury unanimity not required where charges included alternative means of committing the same crime). Cross references: No. 4.400, Sexual Abuse; No. 4.401, Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; No. 4.403, Sexual Abuse of a Ward Patient, Client, Prisoner; No. 4.404, Sexual Abuse
of a Patient or Client; No. 4.410, Enticing a Chid or Minor; No. 4.411, Enticing a Person Who Represents Him/Herself to Be a Child; No. 8.103, Sentencing Enhancements Based on Age; No. 9.700, Marriage Defense to Sexual Abuse of a Child, Sexual Abuse of a Ward, and Sexual Abuse of a Patient or Client.
Page 256
109 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.114 Instruction 4.114 ASSAULT ON A POLICE OFFICER
The elements of the offense of assault on a police officer, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of complainant] was [insert statutory law enforcement position]; 2. [Name of defendant] assaulted, resisted, intimidated, or interfered with [name of complainant]; 3. [Name of defendant] did so voluntarily, on purpose, and not by mistake or accident 4. [Name of defendant] did so while [name of complainant] was engaged in the performance of his/her official duties; [and] 5. At the time [name of defendant] did so, s/he knew or had reason to believe that [name of complainant] was [insert statutory law enforcement position]. [; and] [6. [[Name of defendant] caused significant bodily injury to [name of complainant.]] [[Name of defendant] committed a violent act that created a grave risk of causing significant bodily injury to [name of complainant.]] Significant bodily injury means an injury that requires hospitalization or immediate medical attention.] [If you find that the government has proven these [five] [six] elements beyond a reasonable doubt, then you must
consider whether the defendant acted without justification or excuse. This involves special rules that I will now explain to you. A police officer may stop or detain someone for a legitimate police purpose. And the officer may use the amount of force that appears reasonably necessary to make or maintain the stop. This is the amount of force that an ordinarily careful and intelligent person in the officer's position would think necessary. If the officer uses only the force that appears reasonably necessary, the person stopped may not interfere with the officer, even if the stop later turns out to have been unlawful. If s/he does interfere, s/he acts without justification or excuse. If the officer uses more force than appears reasonably necessary, the person stopped may defend against the excessive force, using only the amount of force that appears reasonably necessary for his/her protection. If that person uses more force than is reasonably necessary for protection, s/he acts without justification or excuse. The government must prove beyond a reasonable doubt that the defendant acted without justification or excuse.]____________________________________ Comment: The 2011 release substituted the bracketed language in elements 1 and 5, leaving it for the court to fill in the appropriate position. The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The 2007 release added in element 6 the new offense of an assault on a police officer causing significant bodily injury created by 208 of the Omnibus Public Safety Act of 2006. That Act also reduced the penalty for simple assault on a police officer to 180 days. See D.C. Code 22-404. The Omnibus Public Safety Act of 2006 went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006. It remained in effect under various Emergency Acts (Act 16-490, Act 17-10 and Act 17-25). The law was not in effect for the following two periods--from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5 p.m. The permanent law went into effect on April 24, 2007. At the time the Fifth Edition went to print, no cases involving these statutory amendments had been decided. The paragraphs of the instruction relating to whether the defendant acted with justification or excuse are bracketed, since the absence of justifiable or excusable cause is not an element of the offense which the government must prove in every case, but rather must be warranted by evidence of excessive force. See Jones v. U.S., 512 A.2d 253, 259 n.8 (D.C. 1986) ; see also Nelson v. U.S., 580 A.2d 114, 117 (D.C. 1990) . The paragraphs relating to justification or excuse are in accordance with several explicit directives from the court in Speed v. U.S., 562 A.2d 124 (D.C. 1989) . Thus, a defendant's right to forcibly resist the police is now limited not only when an arrest is being made, but also during any "stop or detainment for a legitimate police purpose." Id. at 129 . If the self-defense instruction is warranted, it must explicitly state that the government must prove beyond a reasonable doubt that the defendant assaulted the officer without justifiable and excusable cause. Id. And if the government fails to prove that the victim was a police officer, or that the defendant knew or had reason to believe it, or that the officer was engaged in official police duties or was assaulted on account of official police duties, then the special principles of justifiable and excusable cause do not apply, and the jury is to be instructed on the general right of
self-defense. Id. at 129-30 . See also Robinson v. U.S., 649 A.2d 584, 587 (D.C. 1994) (citing this instruction with approval and noting: "Where a defendant is charged with the felony offense of assault on a police officer, a limited right of self-defense arises when the defendant presents evidence that the officer has used excessive force in carrying out his duties ... . Under this exception, if the defendant responded to the officer's excessive force with force that was 'reasonably necessary under the circumstances for self protection,' then the defendant acted with justifiable and excusable cause."). Speed set out an instruction on justifiable or excusable cause. 562 A.2d at 129-30 . The Committee has modified that instruction to shorten it and, it is hoped, make it more easily understandable, without, however, altering the substance. A definition of assault is not included in this instruction. The court should give the definition of attempted-battery assault, or intent-to-frighten assault, or both, wherever the facts show a simple assault and a police officer is the victim. However, the Committee believed that defining the term was not legally required in every case charging assault on a police officer, since in some cases the conduct in question falls short of simple assault. See, e.g., Jones v. U.S., 385 F.2d 296, 298, 128 U.S. App. D.C. 36, 38 n.2 (1967) . The bracketed statement that "[t]he mere use of threatening words alone, while it does not constitute an assault, may constitute intimidation," was deleted as of the 1993 edition. See In re E.D.P., 573 A.2d 1307, 1309 (D.C. 1990) (statute constitutional when construed to apply only to physical conduct and not to speech); City of Houston v. Hill, 482 U.S. 451, 465-67 (1987) (statute criminalizing mere words that interfere with an officer held unconstitutional). The portions of D.C. Official Code 22-405 (2001), concerning police officers and firemen apply exclusively to the District of Columbia. The extraterritorial application of the language in the statute dealing with assaults on employees of correctional institutions has not been directly decided by the District of Columbia Court of Appeals. Cf. Jackson v. U.S., 441 A.2d 1000, 1003-04 (D.C. 1982) (explicitly reserving question of whether extraterritorial application of statute to D.C. correctional officers in facilities located in other jurisdictions would comport with Article III and the Sixth Amendment of the Constitution); U.S. v. Perez, 488 F.2d 1057, 1058 (4th Cir. 1974) (holding that the U.S. District Court in Virginia had jurisdiction to try an assault on a District of Columbia correctional officer under this D.C. statute because the section is applicable outside the District of Columbia). Compare In re W., 391 A.2d 1385, 1390 (D.C. 1978) (juvenile proceedings are not criminal prosecutions for purposes of the U.S. Constitution, so D.C. Code 22-405 could be given extraterritorial effect). D.C. Official Code 22-405 (2001), applies to both attempted and completed acts of assault. U.S. v. Caviness, 192 A.2d 288, 289 (D.C. 1963) . Because the actions of assaulting, resisting, opposing, impeding, intimidating or interfering are stated in the disjunctive in the statute, a finding that the defendant committed any single act will support a conviction. Johnson v. U.S., 298 A.2d 516, 519 (D.C. 1972) . The assault contemplated by the statute is a simple assault. Id. at 518 . Non-violent obstruction of a police officer in the performance of his duties is also proscribed by the statute. Jones, 128 U.S. App. D.C. at 38 n.2, 385 F.2d at 298 n.2 ; see Andersen v. U.S., 132 A.2d 155, 157 (D.C. 1957) . See Holt v. U.S., 675 A.2d 474, 483-84 (D.C. 1996) (concluding that this instruction adequately conveyed the defendant's defense that he abandoned his assault after discovering that the complainant was a police officer); Jones v. U.S., 555 A.2d 1024, 1026-27 (D.C. 1989) (defendant entitled to instruction on defense of third person, where there is some evidence he did not know the officers were police officers); McDonald v. U.S., 496 A.2d 274, 276 (D.C. 1985) (Metro Transit Police Officer is within the statute); Lassiter v. D.C., 447 A.2d 456, 459 (D.C. 1982) (illegality of arrest is no defense to
charge of assaulting police officer); In re G., 427 A.2d 440, 444 (D.C. 1981) (fact that defendant had opportunity to view officer's gun and police clothing sufficient to establish that defendant knew or should have known complainant was police officer); Petway v. U.S., 420 A.2d 1211, 1212-13 (D.C. 1980) (per curiam) (error not to instruct jury on lesser included offense of assault when there was disputed testimony as to whether defendant knew complainant was police officer); Fletcher v. U.S., 335 A.2d 248, 251 (D.C. 1975) (government must prove, as an element of offense, that defendant knew or should have known that complainants were police officers); U. S. v. Lee, (1974), 509 F.2d 400, 407-08 (intent to assault may be inferred from the totality of the evidence); Brown v. U.S., 274 A.2d 683, 684 (D.C. 1971) (D.C. Code 22-405 (2001) abrogates the common law rule affording a right to resist an unlawful arrest); U.S. v. Lewis, 435 F.2d 417, 419-20, 140 U.S. App. D.C. 345 (1970) (where defendant fired a gun at two police officers, act constituted but one assault); Pino v. U.S., 370 F.2d 247, 248, 125 U.S. App. D.C. 225 n.1 (1966) (assault on a police officer is a general intent crime); Lawson v. U.S., 301 F.2d 520, 112 U.S. App. D.C. 196 (1962) (striking police officer after arrest). Lesser included offense: No. 4.100, Assault. Cross references: No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 4.100, Assault; No. 4.101, Assault with a Dangerous Weapon; No. 4.102, Assault with Significant Injury; No. 4.103, Aggravated Assault.
Page 260
110 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.120 Instruction 4.120 CRUELTY TO CHILDREN
D.C. Official Code 22-1101 (2001) A. FIRST DEGREE CRUELTY TO CHILDREN The elements of first degree cruelty to children, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [tortured] [beat] [wilfully maltreated] [name of complainant] [engaged in conduct which created a grave risk of bodily harm to [name of complainant]]; 2. [Name of defendant] did so intentionally or recklessly. Intentionally means that [name of defendant] acted voluntarily, on purpose and not by mistake or accident. Recklessly means that [name of defendant] was aware of and disregarded the grave risk of bodily harm his/her conduct created; 3. [Name of complainant] sustained bodily injury as a result of the defendant's conduct; [and] 4. At the time of the incident, [name of complainant] was less than 18 years old [; and] 5. [Name of defendant's] conduct was not justified by the use of reasonable parental discipline.
The parent of a minor child is justified in using a reasonable amount of force upon the child for the purpose of safeguarding or promoting the child's welfare, including the prevention or punishment of his/her misconduct. Thus, the parent may punish the child for wrongdoing and not be guilty of first degree cruelty to children (1) if the punishment is inflicted out of a genuine effort to correct the child, and (2) if the punishment thus inflicted is not excessive given all the
circumstances, including the child's age, health, mental and emotional development, alleged misconduct on this and earlier occasions, the kind of punishment used, the nature and location of the injuries inflicted, and any other evidence that you deem relevant. To be justified, the force must have been used for the purpose of exercising parental discipline and must be reasonable. [Name of defendant] is not required to prove that his/her conduct was a justifiable exercise of reasonable parental discipline. Rather, the government must prove beyond a reasonable doubt that the defendant's conduct was not so justified. [If an age enhancement was charged, insert the relevant section of Instruction 4.05C, Sentencing Enhancement Based on Age.] B. SECOND DEGREE CRUELTY TO CHILDREN The elements of the offense of second degree cruelty to children, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] maltreated [name of complainant] or engaged in conduct which created a grave risk of bodily harm to [name of complainant]; 2. That the defendant did so intentionally or recklessly. Intentionally means that [name of defendant] acted voluntarily, on purpose, and not by mistake or accident. Recklessly means that [name of defendant] was aware of and disregarded the grave risk of bodily harm his/her conduct created; [and] 3. At the time of the incident, the child was under 18 years old. [; and] 4. [Name of defendant's] conduct was not justified by the use of reasonable parental discipline.
The parent of a minor child is justified in using a reasonable amount of force upon the child for the purpose of safeguarding or promoting the child's welfare, including the prevention or punishment of his/her misconduct. Thus, the parent may punish the child for wrongdoing and not be guilty of second degree cruelty to children (1) if the punishment is inflicted out of a genuine effort to correct the child, and (2) if the punishment thus inflicted is not excessive in view of all the circumstances, including the child's age, health, mental and emotional development, alleged misconduct on this and earlier occasions, the kind of punishment used, the nature and location of the injuries inflicted, and any other evidence that you deem relevant. To be justified, the force must have been used for the purpose of exercising parental discipline and must be reasonable. [Name of defendant] is not required to prove that his/her conduct was a justifiable exercise of reasonable parental discipline. Rather, the government must prove beyond a reasonable doubt that the defendant's conduct was not so justified. ____________________________________ Comment: The Court of Appeals has provided further guidance in Jones v. U.S., 813 A.2d 220, 224 (D.C. 2002) , as to requisite mens rea required by this statute. Specifically, the court held that "malice is not an element of the 1994 amended version of the cruelty to children statute, D.C. Code 22-1101; rather, the government need only show that a defendant acted 'intentionally, knowingly, or recklessly.' " Id. (citing Smith v. U.S., 813 A.2d 216, 218 (D.C. 2002)) . In addition, the government need only prove that the defendant intended to do the act that constituted the offense. It is not required to prove that the defendant intended to cause the child any harm. Lee v. United States, 831 A.2d 378, 382 (D.C. 2003) . Because the instruction previously defined intentionally and knowingly identically, the Committee, for the sake of clarity and simplicity, deleted knowingly in favor of just using intentionally.
The Jones Court also clarified the meaning of the term "recklessly." As a result, in the 2003 release, the Committee deleted the brackets that had previously appeared around the definition of "recklessly." Jones made clear that the definition of "recklessly" in this instruction was "consistent with the usual meaning of the term" and approved its use. 813 A.2d at 225 . Specifically, the court cited Thompson v. U.S. for the proposition that "a defendant is ... 'reckless' only if he intentionally does an act with a willful disregard of its potential consequences." 690 A.2d 479, 483 (D.C. 1997) . As the Model Penal Code explains, "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." Model Penal Code Section 2.02(2)(c). A defendan t may be found reckless where s/he is personally aware of the grave risk of bodily harm resulting from certain conduct and s/he disregards the risk and engages in that conduct. Certain acts may be so dangerous that the defendant's knowledge of the risk can be inferred from the circumstances. See Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985) ; Doss v. Stempson, (No. Civ. A 87-3397) (D.D.C. Jun. 24, 1988) (unpublished decision). In the revised statute, the only explicit definition of "child" as someone under 18 years of age in found in the definition of first degree cruelty to children. Based on that definition, it should follow that the use of the words "children" and "child" in the other portions of the statute must refer to someone under 18 years of age. For that reason, the revised instruction contains that definition as an element for each type of this offense. The bracketed final element for each offense should be given when the defendant raises reasonable parental discipline as a defense. See Martin v. U.S., 452 A.2d 360, 361 (D.C. 1982) . See generally Florence v. U.S., 906 A.2d 889 (D.C. 2006) (evidence supported conclusion that defense of parental discipline applied to the defendant's actions). Cf. Carson v. U.S., 556 A.2d 1076, 1079-80 (D.C. 1989) ; Anderson v. State, 487 A.2d 294, 297-99 (Md. 1985) . In Jones, the Court of Appeals also reaffirmed its holding in Newby v. U.S., "that the government [is] not required to prove malice in order to rebut appellant's assertion of the parental discipline defense." 813 A.2d at 224 (quoting Newby, 797 A.2d 1233, 1245 (D.C. 2002) . Rather, "[o]nce this defense is raised, the government has the burden of refuting it by proving beyond a reasonable doubt that 'the parent's purpose in resorting to force against her child was not disciplinary, or that the force she used was unreasonable.' " Lee, 831 A.2d at 380-81 (quoting Newby, 797 A.2d at 1237 ). Because the reasonable parental discipline defense is also available to someone acting in loco parentis, see Martin, 452 A.2d at 362 , an additional instruction, No. 4.13A, was added in the 2005 release to help explain that concept to the jury. See also Simms v. U.S., 867 A.2d 200, 204 (D.C. 2005) . Cruelty to children in the first degree is a crime of violence. D.C. Official Code 23-1331(4). Section 102 of the Omnibus Public Safety Amendment Act of 2006 created a new enhancement for crimes of violence against minors. See D.C. Official Code 22-3603. The new law became effective on April 24, 2007. Prior to that, emergency legislation, the Omnibus Public Safety Emergency Amendment Act of 2006, went into effect on July 19, 2006 and remained in effect ((except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m.). At the time the Fifth Edition was published, no cases involving this statute had been decided. The 2007 release added a new instruction, No. 8.103, on sentencing enhancements based on age. In addition to finding that the complainant was less than 18 years old at the time of the offense, a jury must find additional elements before the sentencing enhancement for crimes of violence against minors can be imposed. A cross reference to Instruction 8.103 has been added to this instruction. The District of Columbia Court of Appeals has concluded that simple assault is not a lesser-included
offense of attempted second-degree cruelty to children. See Alfaro v. U.S., 859 A.2d 149, 160 (D.C. 2004) ("If, as we conclude, the attempted second-degree cruelty to children statute, enacted inter alia to protect the mental and moral well-being of children, prohibits attempts to inflict unnecessary or unreasonable mental pain and suffering or psychological harm, then [Section] 901(b)(1) can obviously be violated without the commission of an assault--an offense which, by definition, must actually or potentially impair the victim's bodily integrity."); Bradley v. U.S., 856 A.2d 1157, 1163 (D.C. 2004) (second-degree cruelty to children and simple assault do not merge because each requires an element of proof that the other does not). Cross references: No. 2.201, Child's Testimony; No. 3.100, Proof of State of Mind; No. 4.121, In Loco Parentis--Defined; Nos. 4.200-4.214, Homicide; No. 5.400, Malicious Destruction of Property; No. 8.103, Sentencing Enhancements Based on Age.
Page 264
111 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.121 Instruction 4.121 IN LOCO PARENTIS--DEFINED
The law permits a person who is not a child's biological or adoptive parent and who acts in place of that child's parent to use reasonable parental discipline. Before someone may act in place of a child's parent, that person must have put himself or herself in the situation of a lawful parent, without going through the formalities necessary for legal adoption, by both assuming parental status and by discharging the duties and obligations of a parent toward a child. In other words, that person must have a relationship that involves more than a duty to aid and assist and more than a feeling of kindness, affection, or generosity. S/he must perform the support and maintenance responsibilities of a parent toward the child. You should consider the intent of the person claiming the status of in loco parentis and the scope of authority given to that person to so act. If you find that at the time of the charged offense, [name of defendant] was acting in place of [name of child]'s parent, as I have defined that for you, then you may consider whether the defendant's conduct was justified by the use of reasonable parental discipline.____________________________________ Comment: This instruction is designed for cases in which a defendant charged with assault or cruelty to children claims to be acting in loco parentis and raises the defense of reasonable parental discipline. If applicable, this instruction can be inserted into instructions 4.100 and 4.120 immediately after the definition of reasonable parental discipline. The definition used in this instruction is based on Simms v. U.S., 867 A.2d 200, 205-07 (D.C. 2005) . See also Martin v. U.S., 452 A.2d 360, 362 (D.C. 1982) ; Fuller v. Fuller, 247 A.2d 767 (D.C. 1968) , aff'd, 418 F.2d 1189, 135 U.S. App. D.C. 353 (1969) (per curiam). In Simms, the Court of Appeals noted that given "the developments in the numerous kinds of arrangements that characterize modern childrearing," there might be situations in which the language or implication that a person must assume all of the duties and obligations of a parent toward a child would be too broad. The specific example that gave the court pause in Simms, though found not to apply in Mr. Simms' case, was that of a step-parent who wants to claim to act in loco parentis but who has assumed
only some of the obligations and receives only some of the benefits of being a parent to a child because the biological parent continues to assume some obligations and receive some benefits. Simms, 867 A.2d at 205 n.6 . Cross references: No. 4.100, Assault; No. 4.120, Cruelty to Children.
Page 266
112 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.130 Instruction 4.130 THREATS
D.C. Code 22-407; D.C. Code 22-1810 A. THREATS TO DO BODILY HARM (MISDEMEANOR THREATS--D.C. CODE 22-407) The elements of threats, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [spoke words heard by] [wrote words in [a letter] [an email] received by] [otherwise communicated to] [name of recipient] [name of target] [another person]; 2. The [words [name of defendant] spoke/wrote] [symbol [name of defendant] used] would cause a person reasonably to believe that [s/he] [name of target] would be seriously4.130)_and_footnotes(n1);.vk n1 harmed [if [name of event] occurred]; and 3. [Name of defendant] intended [name of recipient] [name of target] to believe that [[s/he] [name of target] would be seriously harmed [if [name of event] occurred].4.130)_and_footnotes(n2);.vk n2 The government is not required to prove that [name of defendant] intended to carry out the threat. B. THREATENING TO KIDNAP OR INJURE A PERSON OR DAMAGE HIS PROPERTY (FELONY THREATS--D.C. CODE 22-1810) The elements of threats, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [spoke words heard by] [wrote words in [a letter] [an email] received by] [otherwise communicated to] [name of recipient] [name of target] [another person];
2. The [words [name of defendant] spoke/wrote] [symbol [name of defendant] used] would cause a person reasonably to believe that [[s/he] [name of target] would be [kidnapped] [seriously4.130)_and_footnotes(n3);.vk n3 harmed]] [[his/her property] [name of target's property] would be damaged] [if [name of event] occurred]; and 3. [Name of defendant] intended [name of recipient] [name of target] to believe that [[s/he] [name of target] would be [kidnapped] [seriously harmed]] [[his/her property] [name of target's property] would be damaged] [if [name of event] occurred].4.130)_and_footnotes(n4);.vk n4 The government is not required to prove that [name of defendant] intended to carry out the threat.
[It is not necessary that the intended victim actually heard the words, or learned about them.] In considering whether the government has proved beyond a reasonable doubt that [name of defendant] threatened [name of target], you should consider all the evidence, including the circumstances under which the words were spoken/written; facial expression, body language, tone and inflection, punctuation, and other ways of giving words meaning; and the nature of the relationship between the parties. ____________________________________ Comment: The Fifth Edition modified this instruction in several ways. It combines the instruction for threats to do bodily harm (misdemeanor threats, D.C. Official Code 22-407), previously Instruction 4.12 and now Part A, and the instruction for threatening to kidnap or injure a person or damage his property (felony threats, D.C. Official Code 22-1810), formerly Instruction 4.91 and now Part B. The last two paragraphs of the intruction, regarding the intended victim actually hearing the words and regarding considering all the evidence, apply to both Parts A and B. The court should give the bracketed paragraph as appropriate and should always give the last paragraph. If a substantive crime is charged which requires a serious bodily injury and there is also a threats charge, the court may want to instruct the jury that the serious bodily injury for purposes of offense such as "aggravated assault" is not necessarily the same as the menace or fear of serious bodily harm that is required for the elements of the threat offense. See Jenkins v. U.S., 902 A.2d 79, 86 n. 10 (D.C. 2006) ("In using the phrase 'serious bodily harm' in Baish, and in reiterating it in Clark, we did not necessarily mean that the threatened bodily harm had to be as serious as we subsequently required it to be in aggravated assault cases."). The bracketed language in the second element, "if [name of event] occurs" should be given in cases where the alleged threat is conditional. For example, a threat such as "if you go to the grand jury, I will kill you," would be a conditional threat. See Postell v. U.S., 282 A.2d 551, 553 (D.C. 1971) ("the mere fact that the infliction of the harm is upon condition does not by any means preclude it from being a threat within the meaning of the Code"; "[a] statement of an intention to inflict harm on another, conditioned upon a future happening would tend to generate fear in direct proportion to the likelihood of the condition coming to pass"). Beard v. U.S., 535 A.2d 1373, 1378 (D.C. 1988) , makes clear that the defendant need not intend that the threat be communicated to the victim and that it need not actually be communicated to the victim, so long as someone heard the threat. See also Baish, 460 A.2d at 42, Joiner v. U.S., 585 A.2d 176 (D.C. 1991) . The bracketed language that follows the elements should be used where the victim did not hear the threat or learn of it.
If a threat fortuitously goes unheard, a person who utters it is guilty of attempted threats. Evans v. U.S., 779 A.2d 891, 894-95 (D.C. 2001) ("Attempted but unconsummated oral threats are easy to conceive--as where, for instance, a threat is garbled and not understood, or is whispered too softly to be heard, or is spoken into a telephone answering device that malfunctions and fails to record the utterance, or is recorded but erased before anyone listens to it. As a practical matter, such unconsummated threats may be unprovable, for lack of available evidence; but there is no doubt that they can be perpetrated."). Baish held that the Superior Court has jurisdiction over a threats offense where the threat was either uttered or heard in the District of Columbia. 460 A.2d at 43 . The court may wish to modify the instruction as necessary in a case where it is alleged that a nonverbal symbol, such a noose, was used to convey a threat. See also Rogers v. U.S., 422 U.S. 35, 42 (1975) ; Watts v. U.S., 394 U.S. 705 (1969) ; Alexander v. U.S., 418 F.2d 1203, 135 U.S. App. D.C. 367 (1969) (construing 18 U.S.C. 871(a) to require proof of a "true threat" not "idle talk" or "jest," and sanctioning consideration of the context, conditional nature, and reaction of the listeners by the jury); U.S. v. Young, 376 A.2d 809 (D.C. 1977) (prosecutor had authority to elect whether to charge defendant with misdemeanor under D.C. Official Code 22-507 (1981) or a felony under D.C. Official Code 22-2307 (1981)). Cross reference: No. 4.100, Assault. FOOTNOTES: (n1)Footnote 1. The Committee was deeply divided over the question of whether the offense of threats requires serious bodily injury or merely bodily injury. The D.C. Court of Appeals has used both formulations when listing the elements of threats but has never directly decided the question. See, e.g., Griffin v. U.S., 861 A.2d 610, 615 (D.C. 2004) ("That these words were of such a nature as to convey fear of serious bodily harm or injury..."); Joiner-Die v. U.S., 899 A.2d 762, 764 (D.C. 2006) ("[T] hat the words were of such a nature as to convey fear of bodily harm or injury..."). Some members of the Committee argued that the court uses the "serious bodily harm or injury" phrasing intentionally, citing Jenkins v. U.S., 902 A.2d 79 (D.C. 2006) . In Jenkins, the court, citing prior cases, set forth the same elements of threats as those listed above, including using the phrase "serious bodily harm" in the second element, and noted that in "using the phrase 'serious bodily harm' in Baish, and in reiterating it in Clark, we did not necessarily mean that the threatened bodily harm had to be as serious as we have subsequently required it to be in aggravated assault cases." Jenkins, 902 A.2d at 86-87 n.10 (D.C. 2006) (citing U.S. v. Baish, 460 A.2d 38 (D.C. 1983) and Clark v. U.S., 755 A.2d 1026 (D.C. 2000)) . Other members of the Committee, relying on the language of D.C. Code 22-407 and 22-1810 which do not use the term "serious" to define the injury that was the subject of the threat, argue that adding "serious" to the element was a mistake in the 1978 version of the Redbook resulting from a misreading of Postell v. U.S., 282 A.2d 551, 554 (D.C. App. 1971) ("we do not ask whether appellant succeeded in frightening these police officers, but whether under the circumstances the language used by appellant when heard by the ordinary person would be understood as being spoken in jest, but as carrying the serious promise of bodily harm or death") (emphasis added). Because the Redbook has used the "serious bodily injury" formulation for more than thirty years and the Court of Appeals has never disapproved the Redbook instructions using that formulation, the Committee has decided to retain it but to highlight the disagreement immediately in a footnote rather than merely including it in the Comment. (n2)Footnote 2. Similarly, there was a divide on the Committee as to whether threats requires the defendant to have intended to convey an actual desire to cause harm or merely requires the defendant to have intended to utter the words which constitute the threat. Again, the D.C. Court of Appeals has used both formulations in stating the elements of threats. See, e.g., Clark v. U.S., 755 A.2d 1026, 1031 (D.C. 2000) ("[A] reasonable juror could conclude that the statements made would 'convey fear of serious bodily harm to the ordinary hearer and that such was [defendant's'] intent.") (citations omitted); Evans v. U.S., 779 A.2d 891, 894 (D.C. 2001) ("The essential elements of the offense of
threats to do bodily harm are: ...the defendant intended to utter the words which constituted the threat."). The court in Jenkins used the "intended to utter the words as a threat" formulation but noted "the conflict here perceived by the government--a conflict which arguably might be more appropriately addressed by the court sitting en banc." Jenkins, 902 A.2d at 87 n.11 . Because the court has not addressed this en banc direction on this question, the Committee has decided to retain the "intended to utter the words as a threat" formulation but to highlight this issue for the parties above the Comment. (n3)Footnote 3. See n. 1, supra. (n4)Footnote 4. See n. 2, supra.
Page 270
113 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 1. Assault and Threats 1-IV Criminal Jury Instructions for DC Instruction 4.140 Instruction 4.140 PROTECTION OF DISTRICT PUBLIC OFFICIALS
D.C. Official Code 22-851 (2001) A. INTIMIDATING A PUBLIC EMPLOYEE The elements of the offense of intimidating a public employee, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [intimidated] [interfered with] [retaliated against]] [attempted to [intimidate] [interfere with] [retaliate against]] [name of complainant]; 2. [Name of defendant] The defendant did so [corruptly] [by threatening [name of complainant] [by using force against [name of complainant] [by a threatening letter or communication to [name of complainant]; 3. [Name of complainant] [was] [had been] a District of Columbia official or employee; and 4. [Name of defendant] did so [while [name of complainant] was engaged in the performance of his/her duties] [because of [name of complainant's] performance of his/her duties].
["Corruptly" means with an improper motive.] [The term "threatening" means having a reasonable tendency to intimidate the ordinary person. In considering whether the words that were [spoken] [written] would have a reasonable tendency to intimidate the ordinary person [if a certain event occurs], you should consider all of the evidence, including the circumstances under which the words were
[spoken] [written], and the nature of the relationship between the parties.] B. ASSAULTING, STALKING, KIDNAPPING, INJURING A PUBLIC EMPLOYEE OR VANDALIZING, DAMAGING, DESTROYING OR TAKING THE PROPERTY OF A PUBLIC EMPLOYEE The elements of [name of offense against a public employee], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [[stalked] [assaulted] [kidnapped] [injured] [name of complainant] [[vandalized] [damaged] [destroyed] [took] [name of complainant's] property]. 2. [Name of complainant] [was] [had been] a District of Columbia official or employee; and 3. [Name of defendant] committed [name of offense] [while [name of complainant] was engaged in the performance of his/her duties] [because of [name of complainant's] performance of his/her duties].
[Insert appropriate Instruction 4.100-4.140 (various assaults); 4.303 (kidnapping); 4.104-4.105 (mayhem, malicious disfigurement); No. 4.501 (stalking); 5.300 (theft); or 5.400 (destruction of property).] C. ASSAULTING, STALKING, KIDNAPPING, INJURING A FAMILY MEMBER OF A PUBLIC EMPLOYEE OR VANDALIZING, DAMAGING, DESTROYING OR TAKING THE PROPERTY OF A FAMILY MEMBER OF A PUBLIC EMPLOYEE The elements of the [name of offense against a family member of a public employee], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [[stalked] [assaulted] [kidnapped] [injured] [name of complainant] [[vandalized] [damaged] [destroyed] [took] [name of complainant's] property]; 2. [Name of complainant] is a family member of a [name of official or employee], a [present] [former] District of Columbia official or employee]; and 3. [Name of defendant] [[stalked] [assaulted] [kidnapped] [injured] [name of complainant] [[vandalized] [damaged] [destroyed] [took] [name of complainant's] property], [because of the [name of District official or employee]'s performance of his/her duties].
[Insert appropriate Instruction 4.100-4.140 (various assaults); 4.303 (kidnapping); 4.104-4.105 (mayhem, malicious disfigurement); No. 4.501 (stalking); 5.300 (theft); or 5.400 (destruction of property).] "Family member" means a person who is related to the District of Columbia official or employee by blood, legal custody, marriage, domestic partnership, having a child in common, the sharing of a mutual residence, or the maintenance of a romantic relationship not necessarily including a sexual relationship. ["Official or employee" means a person who currently holds or formerly held a paid or unpaid position in the legislative, executive, or judicial branch of government of the District of Columbia, including boards and commissions.] ____________________________________ Comment:
Particularly if the conduct alleged is pure speech and if the complainant is an elected official or one who makes policy, the court should consider whether additional instructions are needed about First Amendment protections. The Supreme Court reversed a conviction under a similarly intended, but differently constructed, statute in Watts v. U.S., 394 U.S. 705 (1969) . Noting that "the language in the political arena...is often vituperative, abusive and inexact," the Supreme Court held that, in a prosecution under 18 U.S.C. 871, which prohibits threats against the President of the U.S., the prosecution must prove a "true threat;" "political hyperbole" will not suffice. Watts, 394 U.S. at 708 . The Supreme Court in Watts and the Court of Appeals for the D.C. Circuit in Alexander v. U.S., 135 U.S. App. D.C. 367, 418 F.2d 1203, 1206 (1969) , found the conditional nature of the "threat" made by the respective defendants to be relevant to the inquiry of whether the defendant uttered a "true threat." In Watts, however, the threat was conditioned upon an event that the speaker "vowed would never occur." 394 U.S. at 707 . If the purpose of the threat is to prevent a public official from taking a particular action, it may well be phrased in conditional terms. See Posnell v. U.S., 282 A.2d 551, 553 (D.C. 1971) ("the mere fact that the infliction of the harm is upon condition does not by any means preclude it from being a threat within the meaning of the Code"; "[a] statement of an intention to inflict harm on another, conditioned upon a future happening would tend to generate fear in direction proportion to the likelihood of the condition coming to pass"). Section 106 of the Omnibus Public Safety Act of 2006 created this new offense. That statute went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006. It remained in effect under various Emergency Acts (Act 16-490, Act 17-10 and Act 17-25). The law was not in effect for the following two periods--from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5 p.m. The permanent law went into effect on April 24, 2007. At the time the Fifth Edition went to print, no cases involving this statute had been decided. Cross references: Nos. 4.100-4.140, Various Assaults; Nos. 4.104, Mayhem; No. 4.105, Malicious Disfigurement; No. 4.303, Kidnapping; No. 5.300, Theft; 5.400, Destruction of Property; No. 4.501, Stalking.
Page 273
114 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.200 Instruction 4.200 INTRODUCTORY NOTE TO HOMICIDE INSTRUCTIONS
All of the instructions, except Nos. 4.212 and 4.230 are drafted on the assumption that a lesser included homicide instruction will be given. It was the experience of the Committee that, in homicide cases, lesser included offenses often need to be given either because of the nature of the proof required in, for example, first degree murder cases, or the defenses, such as self-defense and mitigation, generated by the evidence. Moreover, a complicating factor in homicide cases is the presence in many of them of both felony murder and first degree murder charges. In view of the difficulties in instruction caused by these complicating factors, the Committee believed it would be useful to draft pattern instructions that assume the presence of lesser included offenses, and the presence of some of the common defenses. It should be emphasized that, in drafting instructions with lesser included offenses and defenses, the Committee chose only the most common patterns. These instructions are not intended to comprehend all possible patterns, and all possible defenses. Finally, contained in each instruction is a direction to the jury as to the order in which to consider the charges. The Committee included this, though it overlaps with No. 2.401, because in some homicide cases special direction needs to be given.
Page 274
115 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.201 Instruction 4.201 HOMICIDE--FIRST DEGREE PREMEDITATED MURDER AND SECOND DEGREE MURDER (NO JUSTIFICATION OR MITIGATION GENERATED)
[Name of defendant] is charged with first degree murder. I am going to instruct you on this charge and also on the lesser included offense of second degree murder. After I give you the elements of these crimes, I will tell you in what order you should consider them. A. FIRST DEGREE MURDER The elements of first degree premeditated murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. [Name of defendant] intended to kill [name of decedent] [another person]; 3. S/he did so after premeditation; and 4. S/he did so after deliberation.
Premeditation means forming an intent to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill. Deliberation means considering and reflecting on the intent to kill, turning it over in the mind, giving it second thought. Premeditation--the formation of an intent to kill--may be instantaneous, as quick as thought itself. Deliberation,
however, requires some time to have elapsed between formation of this intent and the fatal act, within which one pauses and actually gives second thought and consideration to the intended act. The law does not require that deliberation take any particular amount of time. It can be days, hours or minutes, or it can be as brief as a few seconds. It varies according to the circumstances of each case. It is the fact of deliberation that the government must prove, not the length of time it may have gone on. [In deciding whether premeditation and deliberation have been proved beyond a reasonable doubt, you may consider the testimony as to the defendant's abnormal mental condition.] B. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].
Second degree murder differs from first degree premeditated murder in that it does not require premeditation, deliberation or an intent to kill. Inference on Use of a Weapon
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or you may conclude that s/he intended to inflict serious bodily injury or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind. Order of Considering Charges
You should consider first whether [name of defendant] is guilty of first degree murder. If you find him/her guilty, do not consider second degree murder. If you find him/her not guilty, go on to consider second degree murder. [If, after making all reasonable efforts to reach a verdict on first degree murder, you are not able to do so, you are allowed to consider second degree murder.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition.
The court should use this instruction when first degree premeditated murder is charged, felony murder is not charged, and second degree murder is given as a lesser included offense. The instruction should be used only when there is insufficient evidence to instruct on self-defense and mitigation. Thus, justification, mitigation and excuse are not given because it is assumed that insufficient evidence exists to call for instruction on those aspects of malice. The bracketed language on an abnormal mental condition should be given only in the U.S. District Court and only where evidence of the defendant's abnormal mental condition is introduced. See U.S. v. Peterson, 509 F.2d 408, 415, 166 U.S. App. D.C. 75, 82 (1974) ; Brawner v. U.S., 471 F.2d 969, 1008, 153 U.S. App. D.C. 1, 40 (1972) (en banc). It should not be given in Superior Court. Bethea v. U.S., 365 A.2d 64, 83 (D.C. 1976) . The last sentence under Order of Considering Charges is bracketed. Ordinarily, it should be given only if the defendant elects the "reasonable efforts" language. However, "[i]f the jury deadlocks on the greater charge ... the trial judge has discretion to give a "reasonable efforts" instruction over the defendant' objection in lieu of granting a mistrial if it concludes that repeating an "acquittal first" instruction would be unduly coercive." Wilson v. U.S. 922 A.2d 1192, 1195 (D.C. 2007) , citing Powell v. U.S., 684 A.2d 373, 381 (D.C. 1996) ; Taylor v. U.S., 866 A.2d 817, 825 (D.C. 2005) ; Parker v. U.S., 601 A.2d 45, 47 (D.C. 1991) . As for the first element of each offense, causation, the language is taken from Comber v. U.S., 584 A.2d 26, 42 n.19 (1990) (en banc), where the court, in setting forth the elements of voluntary manslaughter, stated that the first element was that "the defendant caused the death of the deceased." In the Committee's view, this succinctly and accurately states the first element of any unlawful homicide. Where an issue of causation arises, the court will need to refer to Instruction 4.230, Murder and Manslaughter--Causation. In drafting the other elements, the Committee has followed the guidance of the en banc court in Comber. Although the cases on appeal there involved second degree murder and manslaughter, not premeditated murder, the discussion in the opinion is helpful both in defining the elements and in clarifying the language on all the charges. Comber clarifies the concept of malice aforethought, which is required for murder, whether first or second degree. Logan v. U.S., 483 A.2d 664, 671 n.8 (D.C. 1984) . Malice comprises four distinct mental states: specific intent to kill, specific intent to injure, conscious disregard of an extreme risk of death or serious bodily injury, and implied malice in felony murder. Comber, 584 A.2d at 38-40 , 42 n.19. In addition, malice requires the absence of justification, excuse or mitigation, where there is some evidence of one or more of these circumstances in the case. Id. at 40-41 and n.17. Throughout the instructions, the 2008 release eliminates the phrase "had the specific intent" and substituted "intended." Juries are no longer instructed on the difference between specific intent and general intent crimes so the word "specific" would have not significance. Throughout the instructions, the 2008 release is using active verbs rather than a verb and a noun. By statute, murder is divided into two degrees. First degree premeditated murder requires that at a killing have been done "purposely, ... of deliberate and premeditated malice." D.C. Official Code 22-2101 (2001). "Purposely" is synonymous with "intentionally," Collazo v. U.S., 196 F.2d 573, 578-79, 90 U.S. App. D.C. 241, 246-47 (1952) . Accordingly, for first degree premeditated murder, the malice element is satisfied only by proof of a specific intent to kill, together with premeditation and deliberation. For second degree murder, "malice" includes any of the three mental states required for a first degree premeditated murder: specific intent to kill, specific intent seriously to injure, or conscious disregard of an extreme risk of death or serious bodily injury. Comber, 584 A.2d at 38-39 , 42 and n.19. In defining
the malice element for both degrees of murder, the Committee has used the mental states required, rather than the word "malice". This approach accords with the recommendation of the en banc court in Comber, 584 A.2d at 42 n.18 . The explanatory instruction on intent to kill is from Logan, 483 A.2d at 671 . The specific intent to kill must exist at the time the offense is committed. Austin v. U.S., 382 F.2d 129, 136-37, 127 U.S. App. D.C. 180, 187-88 (1967) . The definition of deliberation has been revised in accordance with Watson v. U.S., 501 A.2d 791, 793 (D.C. 1985) ("the Government is not required to show that there was a lapse of days or hours or even minutes ... and the time involved may be as brief as a few seconds" between the formation of the intent to kill and the fatal act) (internal quotes and citations omitted). It has also been revised to be parallel with premeditation. Premeditation and deliberation can be proved by circumstantial evidence, and the Court of Appeals has suggested at least three kinds of circumstantial evidence indicating those elements: presence of a motive, bringing the murder weapon to the scene of the crime, and interruption and subsequent continuation of the criminal act. See Hall v. U.S., 454 A.2d 314, 317-18 (D.C. 1982) . Several other factors bearing on premeditation and deliberation are discussed in Mills v. U.S., 599 A.2d. 775, 782-83 (D.C. 1991) . Passage of time within which the accused could have premeditated and deliberated is not by itself enough to sustain a finding of those elements. U.S. v. Peterson, 509 F.2d 408, 412, 166 U.S. App. D.C. 75, 79 (1974) ; U.S. v. Mack, (1972), 466 F.2d 333, 338 ; Parman v. U.S., 399 F.2d 559, 568, 130 U.S. App. D.C. 188, 197 (1968) ; Austin, 127 U.S. App. D.C. at 190-91, 382 F.2d at 139-40 . For further discussion of premeditation, deliberation, and sufficiency of evidence on those elements, see Porter v. U.S., 826 A.2d 398, 405 (D.C. 2003) ; Bright v. U.S., 698 A.2d 450 (D.C. 1997) ; Harris v. U.S., 668 A.2d 839, 842 (D.C. 1995) ; Thacker v. U.S., 599 A.2d 52, 56-57 (D.C. 1991) ; McAdoo v. U.S., 515 A.2d 412, 427 (D.C. 1986) ; Adams v. U.S., 502 A.2d 1011, 1017 (D.C. 1986) ; Watson v. U.S., 501 A.2d 791 (D.C. 1985) ; Jones v. U.S., 477 A.2d 231, 246-47 (D.C. 1984) ; Garris v. U.S., 465 A.2d 817, 821 (D.C. 1983) ; Head v. U.S., 451 A.2d 615, 623 (D.C. 1982) ; Frendak v. U.S., 408 A.2d 364, 371 (D.C. 1979) ; Harris v. U.S., 375 A.2d 505, 507-08 (D.C. 1977) ; Blango v. U.S., 373 A.2d 885, 887 (D.C. 1977) ; U.S. v. Brooks, 449 F.2d 1077, 1085, 146 U.S. App. D.C. 1, 8 (1971) ; U.S. v. Sutton, 426 F.2d 1202, 1208-11, 138 U.S. App. D.C. 208, 216-19 (1969) ; Hemphill v. U.S., 402 F.2d 187, 187-89, 131 U.S. App. D.C. 46, 48-50 (1968) . See generally Upshur v. U.S., 742 A.2d 887, 892 n.4 (D.C. 1999) (citing former Instruction 4.17B (now 4.201B) with approval). The language on the inference from use of a weapon is supported by Belton v. U.S., 382 F.2d 150, 154-55, 127 U.S. App. D.C. 201, 204-05 (1967) (desirable and necessary to instruct that the jury may infer malice from evidentiary facts, including the deadly nature of the weapon). Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age; No. 9.400, Insanity.
Page 278
116 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.202 Instruction 4.202 HOMICIDE--FIRST DEGREE PREMEDITATED MURDER, SECOND DEGREE MURDER, AND VOLUNTARY MANSLAUGHTER (SELF-DEFENSE AND HEAT OF PASSION CAUSED BY ADEQUATE PROVOCATION)
[Name of defendant] is charged with first degree murder. I am going to instruct you on this charge and also on the lesser included offenses of second degree murder and voluntary manslaughter. After I give you the elements of these crimes, I will tell you in what order you should consider them. A. FIRST DEGREE MURDER The elements of first degree premeditated murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. [Name of defendant] intended to kill [name of decedent] [another person]; 3. S/he did so after premeditation; 4. S/he did so after deliberation; 5. There were no mitigating circumstances; and 6. S/he did not act in self-defense.
Premeditation means forming an intent to kill. To premeditate is to give thought, before acting, to taking a human life,
and then to reach a definite decision to kill. Deliberation means considering and reflecting on the intent to kill, turning it over in the mind, giving it second thought. Premeditation--the formation of an intent to kill--may be instantaneous, as quick as thought itself. Deliberation, however, requires that some time have elapsed between formation of this intent and the fatal act, within which one pauses and actually gives second thought and consideration to the intended act. The law does not require that deliberation take any particular amount of time. It can be days, hours or minutes, or it can be as brief as a few seconds. It varies according to the circumstances of each case. It is the fact of deliberation that the government must prove, not the length of time it may have gone on. [In deciding whether premeditation and deliberation have been proved beyond a reasonable doubt, you may consider the testimony as to the defendant's abnormal mental condition.] I will define self-defense and mitigating circumstances later. B. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time, s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; 3. There were no mitigating circumstances; and 4. [Name of defendant] did not act in self-defense.
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or, you may conclude that s/he intended to inflict serious bodily injury or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind. Mitigating Circumstances
Mitigating circumstances can exist in two situations. They exist where a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of another that would cause an ordinary, reasonable person in the heat of the moment
to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."] [Mitigating circumstances also exist when a person actually believes that s/he is in danger of serious bodily injury, and actually believes that the use of force that was likely to cause serious bodily harm was necessary to defend against that danger, but one or both of those beliefs are not reasonable.] C. VOLUNTARY MANSLAUGHTER Manslaughter is a killing that would otherwise be second-degree murder except that mitigating circumstances are present. Mitigating circumstances, as I have just defined them for you, reduce the level of guilt from murder to manslaughter. The elements of manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time, s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; and 3. S/he did not act in self-defense.
Mitigating circumstances are not a defense to manslaughter. Order of Considering the Charges
You should consider first whether [name of defendant] is guilty of first degree murder. If you find him/her guilty, do not go on to the other two charges. If you find him/her not guilty, go on to consider second degree murder. [And if, after making all reasonable efforts to reach a verdict on first degree murder, you are not able to do so, you are allowed to consider second degree murder.] If you find the defendant guilty of second degree murder, do not go on to manslaughter. If you find [name of defendant] not guilty, go on to consider manslaughter. [And if, after making all reasonable efforts to reach a verdict on second degree murder, you are not able to do so, you are allowed to consider manslaughter.] Self-Defense
Self-defense is a complete defense to murder and manslaughter where [name of defendant] actually believed that s/he was in danger of serious bodily injury, and actually believed that the use of deadly force was necessary to defend against that danger and both of these beliefs were reasonable. [Give applicable self-defense instructions.] In evaluating self-defense, the difference between a complete defense, which acquits of both murder and manslaughter, and a mitigating circumstance, which reduces an offense from murder to manslaughter, is that for a complete defense,
the person's actual beliefs about both the danger and the need to use deadly force must be reasonable, whereas for a mitigating circumstance, one or both of these actual beliefs are not reasonable. It is the government's burden to prove beyond a reasonable doubt the absence of self-defense and, for murder, the absence of mitigating circumstances. [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The court should use this instruction when the charge is first degree premeditated murder, felony murder is not charged, evidence of self-defense and mitigation has been generated, and lesser included offenses of murder in the second degree and manslaughter are given. The instruction is written on the assumption that evidence of both self-defense and mitigating circumstances is present, as is typical when self-defense is raised. If there are mitigating circumstances but no self-defense, the judge should use No. 4.203. The court should use Parts A and B of this instruction when the charge is first degree premeditated murder, felony murder is not charged, evidence of self-defense and mitigation has been generated and only the lesser included offense of murder in the second degree is given. Where evidence of mitigating circumstances is present, upon request, the court should instruct on mitigating circumstances whether or not the lesser included offense of manslaughter is also requested by either party. See Lee v. United States, 959 A.2d 1141 (D.C. 2008) (error not to give instruction on mitigating circumstances on request where evidence supported the instruction although both government and defense had elected not to request the instruction on voluntary manslaughter); Bostick v. U.S., 605 A.2d 916, 917-18 (D.C. 1992) (internal quotations omitted) (error in second degree murder case where voluntary manslaughter instruction not requested to give only portion of second degree murder instruction on malice where full instruction on provocation, including requisite burden of proof on government, was requested). The bracketed language on an abnormal mental condition should be given only in the U.S. District Court and only where evidence of the defendant's abnormal mental condition is introduced. See U.S. v. Peterson, 509 F.2d 408, 415, 166 U.S. App. D.C. 75, 82 (1974) and Brawner v. U.S., 471 F.2d 969, 1008, 153 U.S. App. D.C. 1, 40 (1972) (en banc). It should not be given in Superior Court. Bethea v. U.S., 365 A.2d 64, 83 (D.C. 1976) . The last sentence under Order of Considering Charges is bracketed. Ordinarily, it should be given only if the defendant elects the "reasonable efforts" language. However, "[i]f the jury deadlocks on the greater charge ... the trial judge has discretion to give a "reasonable efforts" instruction over the defendant's objection in lieu of granting a mistrial if it concludes that repeating an "acquittal first" instruction would be unduly coercive." Wilson v. U.S. 922 A.2d 1192, 1195 (D.C. 2007) , citing Powell v. U.S., 684 A.2d 373, 381 (D.C. 1996) ; Taylor v. U.S., 866 A.2d 817, 825 (D.C. 2005) ; Parker v. U.S., 601 A.2d 45, 47 (D.C. 1991) . Regarding the first element of each offense, causation, see the comment to Instruction 4.230. In drafting the other elements, the Committee has followed the guidance of the en banc court in Comber
v. U.S., 584 A.2d 26 (D.C. 1990) . Although the cases on appeal there involved second degree murder and manslaughter, not premeditated murder, the discussion in the opinion is helpful both in defining the elements and in clarifying the language on all the charges. Comber clarifies the concept of malice aforethought, which is required for murder, whether first or second degree. Logan v. U.S., 483 A.2d 664, 671 n.8 (D.C. 1984) . Malice comprises four distinct mental states: specific intent to kill, specific intent to injure, conscious disregard of an extreme risk of death or serious bodily injury, and implied malice in felony murder. Comber, 584 A.2d at 38-40 , 42 n.19. In addition, malice requires the absence of justification, excuse or mitigation, where there is some evidence of one or more of these circumstances in the case. Id. at 40-41 and n.17. In this instruction, it is assumed that sufficient evidence of justification and mitigation has been presented. For further discussion of the elements of malice, where justification and mitigation are not involved, see comment to No. 4.201. That comment includes a discussion of intent to kill, premeditation and deliberation. Self-defense is a complete defense and failure to prove that the defendant did not act in self-defense results in an acquittal. Where some evidence of self-defense has been generated either in the government or defense case, an instruction is required. Comber, 584 A.2d at 41 ; Davis v. U.S., 510 A.2d 1051, 1053 (D.C. 1986) . The presence of mitigating circumstances is a partial defense. If the government fails to prove that there were no mitigating circumstances, but proves all other elements of murder, the resulting crime is voluntary manslaughter. As stated in Comber, "[A] homicide constitutes voluntary manslaughter where the perpetrator kills with a state of mind which, but for the presence of mitigating circumstances, would render the killing murder." 584 A.2d at 42 . The instruction makes this point to the jury. The explanation of heat-of-passion is based on Kinard v. U.S., 96 F.2d 522, 526, 68 App. D.C. 250, 254 (1938) . See also U.S. v. Hardin, 443 F.2d 735, 739, 143 U.S. App. D.C. 320, 323 (1970) ("mutual combat alone is not a true alternative ground for mitigating a murder to manslaughter;" it is a circumstance from which the jury could find adequate provocation). The explanation of adequate provocation is based on a suggested instruction in U.S. v. Alexander, 471 F.2d 923, 944-45, 152 U.S. App. D.C. 371, 394-95 (1972) . Minor wording changes and the language of Brown v. U.S., 584 A.2d 537, 543 (D.C. 1990) , were also incorporated. See also Austin v. U.S., 382 F.2d 129, 137, 127 U.S. App. D.C. 180, 188 (1967) . The bracketed portion should be given only when there is evidence that the defendant was under the influence of alcohol or another drug. See Hart v. U.S., 130 F.2d 456, 458, 76 U.S. App. D.C. 193, 195 (1942) . For cases on imperfect self-defense, see Sellars v. U.S., 401 A.2d 974, 977 (D.C. 1979) ; Pendergrast v. U.S., 332 A.2d 919, 925-26 and n.5 (D.C. 1975) ; and U.S. v. Wharton, 433 F.2d 451, 459, 139 U.S. App. D.C. 293, 301 (1970) . Instructions on mitigating circumstances and manslaughter are required once some evidence of heat-of-passion and adequate provocation is in the case--whether introduced by the government or the defense. See Comber, 584 A.2d at 41 n.17 , and cases cited. Brown rejects rigid categorization of provocations deemed adequate to require instruction. 584 A.2d at 540-43 . For cases in which evidence of provocation was held inadequate, see West v. U.S., 499 A.2d 860, 865 (D.C. 1985) (unarmed victim walked toward defendant during argument); Dean v. U.S., 377 A.2d 423, 427 (D.C. 1977) (rape of one of defendant's prostitutes); Harris v. U.S., 373 A.2d 590, 592 (D.C. 1977) (act of shutting door to keep out avengers of mother's rape, where victim known not to be the rapist); Jamison v. U.S., 373 A.2d 594, 596 (D.C. 1977) (ample time to reflect and cool down); Nicholson v. U.S., 368 A.2d 561, 565 (D.C. 1977) (verbal insults and allegation of past adulterous relationship); Morgan v. U.S., 363 A.2d 999, 1002-03
(D.C. 1976) ("emotional strain" unaccompanied by other provocative acts). For cases where provocation was held adequate, see Pendergrast, 332 A.2d at 925-26 (evidence that defendant has reason to believe that deceased went for a gun during heated argument); Comer v. U.S., 421 F.2d 1149, 1154, 137 U.S. App. D.C. 214, 219 (1970) (sudden discovery of spouse in act of adultery); Kinard v. U.S., 96 F.2d 522, 68 App. D.C. 250 (1938) (testimony that deceased attacked defendant with a knife). For comment on the explanatory instruction on inference from use of a weapon, see the comment to No. 4.201. For comment on the order of considering lesser included offenses, see comment to No. 2.401. Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age; No. 9.400, Insanity.
Page 284
117 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.203 Instruction 4.203 HOMICIDE--FIRST DEGREE PREMEDITATED MURDER, SECOND DEGREE MURDER AND VOLUNTARY MANSLAUGHTER (HEAT OF PASSION CAUSED BY ADEQUATE PROVOCATION; NO SELF DEFENSE RAISED)
[Name of defendant] is charged with first degree murder. I am going to instruct you on this charge and also on the lesser included offenses of second degree murder and voluntary manslaughter. After I give you the elements of these crimes, I will tell you in what order you should consider them. A. FIRST DEGREE MURDER The elements of first degree premeditated murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. [Name of defendant] intended to kill [name of decedent] [another person]; 3. S/he did so after premeditation; 4. S/he did so after deliberation; and 5. There were no mitigating circumstances.
Premeditation means forming an intent to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill.
Deliberation means considering and reflecting on the intent to kill, turning it over in the mind, giving it second thought. Premeditation--the formation of an intent to kill--may be instantaneous, as quick as thought itself. Deliberation, however, requires some time to have elapsed between formation of this intent and the fatal act, within which one pauses and actually gives second thought and consideration to the intended act. The law does not require that deliberation take any particular amount of time. It can be days, hours or minutes, or it can be as brief as a few seconds. It varies according to the circumstances of each case. It is the fact of deliberation that the government must prove, not the length of time it may have gone on. [In deciding whether premeditation and deliberation have been proved beyond a reasonable doubt, you may consider the testimony as to the defendant's abnormal mental condition.] I will define mitigating circumstances later. B. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time, s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; and 3. There were no mitigating circumstances.
You have heard evidence that [name of defendant] may have used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or, you may conclude that s/he intended to inflict serious bodily injury or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind. Mitigating Circumstances
Mitigating circumstances can exist when a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of another that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply
because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."] The government must prove beyond a reasonable doubt that there were no mitigating circumstances. C. VOLUNTARY MANSLAUGHTER Manslaughter is a killing that would otherwise be second-degree murder except that mitigating circumstances are present. Mitigating circumstances, as I have defined them for you, do not result in a verdict of not guilty, but reduce the level of guilt from murder to manslaughter. The elements of manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. At the time s/he [name of defendant] intended to kill or seriously injure [name of decedent] [another person]], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].
Mitigating circumstances are not a defense to manslaughter. Order of Considering Charges
You should consider first whether [name of defendant] is guilty of first degree murder. If you find him/her guilty, do not go on to the other two charges. If you find him/her not guilty, go on to consider second degree murder. [And if, after making all reasonable efforts to reach a verdict on first degree murder, you are not able to do so, you are allowed to consider second degree murder.] If you find [name of defendant] guilty of second degree murder, do not go on to manslaughter. If you find him/her not guilty, go on to consider manslaughter. [And if, after making all reasonable efforts to reach a verdict on second degree murder, you are not able to do so, you are allowed to consider manslaughter.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The Fifth Edition modified the definition of mitigating circumstances to clarify the concept of adequate provocation and to correct an ambiguity in the explanation of the difference between perfect and imperfect self defense. The court should use this instruction when the charge is first degree premeditated murder, felony murder is not charged, evidence of mitigating circumstances has been generated, and lesser included offenses of murder in the second degree and manslaughter are given. The instruction is written on the assumption that evidence of self-defense is not present. Where both self-defense and mitigation are raised, use No. 4.202. The comments to No. 4.201 and 4.202 should be read in conjunction with this instruction. This instruction is the same as 4.202 except that modifications have been made to account for the absence of self-defense in the case. The bracketed language on an abnormal mental condition, found in Part A, should be given only in the
U.S. District Court and only where evidence of the defendant's abnormal mental condition is introduced. See U.S. v. Peterson, 509 F.2d 408, 415, 166 U.S. App. D.C. 75, 82 (1974) and Brawner v. U.S., 471 F.2d 969, 1008, 153 U.S. App. D.C. 1, 40 (1972) (en banc). It should not be given in Superior Court. Bethea v. U.S., 365 A.2d 64, 83 (D.C. 1976) . Where evidence of mitigating circumstances is present, upon request, the court should instruct on mitigating circumstances whether or not the lesser included offense of manslaughter is also requested by either party. See Lee v. United States, 959 A.2d 1141 (D.C. 2008) (error not to give instruction on mitigating circumstances on request where evidence supported the instruction although both government and defense had elected not to request the instruction on voluntary manslaughter); Bostick v. U.S., 605 A.2d 916, 917-18 (D.C. 1992) (internal quotations omitted) (error in second degree murder case where voluntary manslaughter instruction not requested to give only portion of second degree murder instruction on malice where full instruction on provocation, including requisite burden of proof on government, was requested). The last sentence under Order of Considering Charges is bracketed. Ordinarily, it should be given only if the defendant elects the "reasonable efforts" language. However, "[i]f the jury deadlocks on the greater charge ... the trial judge has discretion to give a "reasonable efforts" instruction over the defendant's objection in lieu of granting a mistrial if it concludes that repeating an "acquittal first" instruction would be unduly coercive." Wilson v. U.S., 922 A.2d 1192, 1195 (D.C. 2007) , citing Powell v. U.S., 684 A.2d 373, 381 (D.C. 1996) ; Taylor v. U.S., 866 A.2d 817, 825 (D.C. 2005) ; Parker v. U.S., 601 A.2d 45, 47 (D.C. 1991) . Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age; No. 9.400, Insanity.
Page 288
118 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.204 Instruction 4.204 HOMICIDE--FIRST DEGREE FELONY MURDER AND SECOND DEGREE MURDER
[Name of defendant] is charged with first degree felony murder. I am going to instruct you on this charge and also on the lesser included offense of second degree murder. After I give you the elements of these crimes, I will tell you in what order you should consider them. I. FIRST DEGREE FELONY MURDER A. WHERE THE UNDERYLING OFFENSE IS ENUMERATED IN D.C. OFFICIAL CODE 22-2101 The elements of the offense of first degree felony murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. [Name of defendant] did so while committing or attempting to commit [arson] [first degree sexual abuse] [first degree child sexual abuse] [first degree cruelty to children] [mayhem] [robbery] [kidnapping] [first or second degree burglary of a dwelling while armed] [any felony involving a controlled substance.
The government need not prove that [name of defendant] intended to kill [name of decedent]. Any killing, even if done without the intent to kill and even if accidental, is murder in the first degree if done in committing or attempting to commit [insert underlying felony]. [The following instruction should be given only where felony murder based on an offense enumerated in D.C. Code 22-2101 is charged. This instruction is incorporated in bracketed paragraph 6 of the aiding
and abetting instruction, No. 3.200. Where felony murder based on an unenumerated offense is charged and there are multiple defendants, the Court must not use this paragraph or bracketed paragraph 6 of the aiding and abetting instruction with respect to that charge, but must use bracketed paragraph 5 of the aiding and abetting instruction. See Wilson-Bey v. U.S., 903 A.2d 818 (D.C. 2006) (en banc); Kitt v. U.S., 904 A.2d 348 (D.C. 2006) ; Comment to Instruction No. 3.200.] [If two or more people, acting together, are committing or attempting to commit [insert underlying felony] and one of them, in the course of the felony and in furtherance of the common purpose to commit the felony, kills a human being, both the person who committed the killing and the person or persons who aided and abetted in the felony are guilty of felony murder, even if the killing was accidental. [And any person who aids and abets the commission of [insert underlying felony] is guilty of felony murder for a killing that was committed in furtherance of a common purpose to commit that felony or a killing that was, in the ordinary course of things, a natural and probable consequence of acts done in committing that felony. But a person participating in a [insert underlying felony] is not guilty of first degree felony murder if his/her accomplice kills the deceased in a separate and distinct act and to satisfy the accomplice's own ends.]] B. WHERE THE UNDERLYING OFFENSE IS ANY OTHER FELONY The elements of the offense of murder in the first degree, felony murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time s/he did so, s/he intended to kill [name of decedent] [another person]; and 3. S/he killed [name of decedent] while committing or attempting to commit [insert underlying felony].
[Unlike felony murder based on [insert underlying felony], regardless of whether a defendant is a principal offender or an aider and abettor, the government must prove beyond a reasonable doubt that each defendant personally intended to kill [name of decedent] [another person] for you to find him/her guilty of felony murder based on [insert underlying felony]]. II. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].
Second degree murder differs from first degree felony murder in that the government need not prove that the killing occurred in the commission or attempted commission of a [insert underlying felony]. But the government does need to prove that [name of defendant] either intended to kill or seriously injure [name of decedent] [another person], or acted
in conscious disregard of an extreme risk of bodily injury to [name of decedent] [another person]. Inference on Use of a Weapon
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or you may conclude that s/he intended to inflict serious bodily injury or that s/he acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind. Order of Considering Charges
You should consider first whether [name of defendant] is guilty of first degree felony murder. If you find him/her guilty, do not consider second degree murder. If you find him/her not guilty, go on to consider second degree murder. [And if, after making all reasonable efforts to reach a verdict on first degree felony murder, you are not able to do so, you are allowed to consider second degree murder.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The court should use this instruction when there is a charge of felony murder, where second degree murder is given as a lesser included offense, and where no evidence of justification, excuse or mitigation has been introduced. The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The 2008 release also moved the language that formerly appeared in a separate Part C, when multiple offenders were involved, into Part A and placed it in brackets. Since this language applies only to offenses that are enumerated in D.C. Official Code 22-2101, it logically follows in Part A. Moreover, its placement in Part A is less likely to create confusion in those cases where there are both enumerated and unenumerated felonies. This instruction was amended in 2006 to take into account Wilson-Bey v. U.S., 903 A.2d 818 (D.C. 2006) (en banc), that held that the government must prove that each participant in a felony that was not enumerated in D.C. Official Code 22-2101 and that resulted in death had an intent to kill. See Kitt v. U.S., 904 A.2d 348 (D.C. 2006) ; Comment to Instruction No. 3.200. The optional, bracketed sentences in the last paragraph of Part A set forth the rule of accomplice liability for a homicide which is in furtherance of the underlying felony or is a natural or probable consequence of acts done in furtherance of the predicate felony. U.S. v. Heinlein, 490 F.2d 725, 735, 160 U.S. App. D.C. 157, 167 (1973) . In certain situations it may be useful for the court to articulate this principle. See Prophet v. U.S., 602 A.2d 1087, 1095 (D.C. 1992) (accomplice who aids underlying felony need not aid killing); West v. U.S., 499 A.2d 860, 865 (D.C. 1985) (conviction for felony murder predicated on aiding and abetting attempted armed robbery); Williams v. U.S., 483 A.2d 292, 297-98 (D.C. 1984) (standard aiding and abetting instruction needed to be amplified with "natural and probable consequences"); Hackney v. U.S., 389 A.2d 1336, 1342 (D.C. 1978) (aiding and abetting is established if accused
associated himself with the venture, participated in it as something he wished to bring about and sought by his action to make it succeed); Christian v. U.S., 394 A.2d 1, 48-49 (D.C. 1978) (if one of several confederates commits homicide while engaged in the commission of a felony, all may be found guilty of felony murder even if the killing is unintentional); Harris v. U.S., 377 A.2d 34, 37-38 (D.C. 1977) (to convict defendant, jury was required to find that homicide was committed in the scope of attempted burglary to which defendant was an aider and abettor). The judge should read this part in conjunction with the instruction on aiding and abetting. The first sentence of the bracketed language in Part A is based on Heinlein, 160 U.S. App. D.C. at 167, 490 F.2d at 735 . The second sentence is based on id. at 168, 490 F.2d at 736 , quoting People v. Wood, 8 N.Y.2d 48, 51-52, 167 N.E.2d 736, 738-39 (1960) . For an alternative formulation of the second sentence, see Christian, 394 A.2d at 48 . In cases where there is an issue not only of whether the act resulting in death was "separate and distinct," i.e., not in furtherance of the underlying felony, but also of whether under applicable legal principles the underlying felony itself could be found to be ongoing, the jury may need to be instructed on those principles. See, e.g., Carter v. U.S., 223 F.2d 332, 334, 96 U.S. App. D.C. 40, 42 (1955) (robbery continues as long as asportation continues); Blango v. U.S., 373 A.2d 885, 888 (D.C. 1977) (burglary a continuing offense for purposes felony murder based on killing while inside premises). Other potentially applicable legal principles are discussed below. Two distinct kinds of felony murder are defined D.C. Official Code 22-2101 (2001). Part A should be given where the killing took place during the attempted or completed perpetration of one of the specific offenses enumerated in D.C. Official Code 22-2101 (2001); under these circumstances, there is no requirement of purposefulness or specific intent as an element of felony murder. U.S. v. Branic, 495 F.2d 1066, 1068-69, 162 U.S. App. D.C. 10, 13 (1974) . Part B should be given where the killing occurred during the attempted or completed perpetration of any other felony; under these circumstances, the killing itself must have been purposeful and perpetrated with specific intent to kill. Additionally, the trial court must instruct on all the elements of the underlying felony; failure to do so constitutes reversible error. U.S. v. Williams, 463 F.2d 958, 962, 150 U.S. App. D.C. 122, 126 (1972) ; see also Waller v. U.S., 531 A.2d 994, 998 (D.C. 1987) (the elements of the predicate felony become additional elements which must be proven in order to establish the offense of felony murder). The statutory phrase, "any offense punishable by imprisonment in the penitentiary," virtually equates with the common law concept of felony, and signifies any offense for which a sentence of more than one year may be imposed. Lee v. United States, 112 F.2d 46, 72 App. D.C. 147 (1940) ; U.S. v. Evans, 28 App. D.C. 264 (1906) . The words "any offense" include felony offenses under Title 18 of the U.S. Code, where those offenses are committed in the District of Columbia. U.S. v. Greene, 160 U.S. App. D.C. 21, 489 F.2d 1145 (1973) . The phrase "in perpetrating or attempting to perpetrate" requires that the killing have been with the res gestae of the felony, but not that it have been a necessary or planned part of the felony. U.S. v. Bolden, 514 F.2d 1301, 169 U.S. App. D.C. 60 (1975) ; U.S. v. Carter, 445 F.2d 669, 144 U.S. App. D.C. 193 (1971) ; see also Womack v. U.S., 339 A.2d 37 (D.C. 1975) (evidence sufficient to sustain inference that defendant killed decedent during a robbery or for the purpose of robbing him); Brown v. U.S., 375 F.2d 310, 126 U.S. App. D.C. 134 (1966) (killing committed during armed housebreaking). While a killing committed during a preparation period is not sufficient to establish felony murder, one occurring during an attempt is sufficient. See Bolden, supra ; Calloway v. U.S., 399 F.2d 1006, 130 U.S. App. D.C. 273 (1968) . Although the felony may either precede or follow the killing, the intent to commit the felony must be established prior to the homicide, and acquittal is proper if the felony is an afterthought; moreover, under
circumstances where an "afterthought" defense is raised, it is the preferable practice to advise the jury that (1) to convict of felony murder, it is necessary that the intent to commit the underlying felony be formed before the homicide, (2) "intent" can only be proved by action beyond mere preparation since until that time the defendant could have abandoned the plan to commit the felony without legal liability, and (3) even if the jury finds the underlying felony did occur, that finding by itself does not settle the issue where the intent to commit the felony was formed before or after the homicide. Bolden, 169 U.S. App. D.C. at 69, 514 F.2d at 1310 . Mere coincidence in time between the underlying felony and the homicide is insufficient for conviction of felony murder; the homicide must be within the scope of the felony or the purpose upon which the defendant embarks. See Johnson v. U.S., 671 A.2d 428, 433 (D.C. 1995) ("Mere temporal and locational coincidence is not enough: '[i]t must appear that there was such actual legal relation between the killing and the [underlying felony] ... that the killing can be said to have occurred as a part of the perpetration of the crime ... .' " citing U.S. v. Heinlein, 490 F.2d 725, 736, 160 U.S. App. D.C. 157, 168 (1973) (internal citations and additional quotation marks omitted)); Head v. U.S., 451 A.2d 615, 625 (D.C. 1982) (circumstantial evidence sufficient to prove that defendant killed decedents during the course of an armed robbery). Moreover, the chain of circumstances between the felony and the killing must be unbroken. Coleman v. U.S., 295 F.2d 555, 557-58, 111 U.S. App. D.C. 210, 212-13 (1961) ; see also West v. U.S., 499 A.2d 860, 865 (D.C. 1985) . In cases where there is an issue not only of whether the act resulting in death was "separate and distinct," i.e., not in furtherance of the underlying felony, but also of whether under applicable legal principles the underlying felony itself could be found to be ongoing, the jury may need to be instructed on those principles. See, e.g., Carter v. U.S., 223 F.2d 332, 334, 96 U.S. App. D.C. 40 (1955) (robbery continues as long as asportation continues); Blango v. U.S., 373 A.2d 885, 888 (D.C. 1977) (burglary a continuing offense for purposes of felony murder based on killing while inside premises). First degree murder is defined as premeditated murder or felony murder. These are not distinct offenses, but merely alternate definitions and modes of proof of the same offense. Byrd v. U.S., 500 A.2d 1376, 1384 (D.C. 1985) , adopted in part by en banc court, 510 A.2d 1035 (D.C. 1986) . Thus, although a defendant may be indicted and convicted for both felony murder and premeditated murder based on the same killing, those convictions merge. After appeal, the trial court must vacate one of the convictions. Id. at 1388-89 ; Garris v. U.S., 491 A.2d 511, 514-15 (D.C. 1985) (Garris II). Likewise, a defendant may be indicted and convicted on multiple counts of felony murder based on a single killing but those convictions also merge. Garris v. U.S., 465 A.2d 817, 823 (D.C. 1983) (Garris I). After appeal, the trial court must vacate all of the felony murder convictions save one, Garris II. Finally, a defendant may be indicted and convicted of both felony murder and the underlying felony but, once again, those convictions ultimately merge. Harling v. U.S., 460 A.2d 571 (D.C. 1983) . After appeal, the trial court must vacate one conviction or the other. Garris II. In deciding which convictions to vacate after appeal in order to resolve the various merger issues, the trial court is free to pick and choose so as to effectuate it original sentencing plan. Id. It is now settled that second degree murder generally is a lesser included offense of felony murder based on alleged commission of an enumerated felony, and must be given if requested by the prosecution or the defense. Towles v. U.S., 521 A.2d 651, 657-58 (D.C. 1987) (en banc). It is not settled, however, that second degree murder is a lesser included offense of felony murder based on alleged commission of an unenumerated felony. Comber v. U.S., 584 A.2d 26, 40 n. 15 (D.C. 1990) (en banc). But see Byrd v. U.S., 500 A.2d 1376 (D.C. 1985) (adopting Byrd v. U.S., 510 A.2d 1035, 1037 n. 1 (D.C. 1986) . The rationale for inclusion of second degree murder in felony murder based on an enumerated felony is that
the common law has implied malice, premeditation and deliberation, necessary for first degree murder, from the commission of the underlying felony, and transferred it to the felony murder. Towles, 521 A.2d at 657 ; Comber, 584 A.2d at 39-40 ; Head v. U.S., 451 A.2d 615, 625 (D.C. 1982) . It should be observed that the court in Towles noted that "there may be some felony murder cases where a lesser included offense instruction is inappropriate. In other words, there must be something in the evidence at each trial to justify the giving of such [an] instruction." 521 A.2d at 658 . See also Wood v. U.S., 472 A.2d 408, 410 (D.C. 1984) . Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age.
Page 294
119 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.205 Instruction 4.205 HOMICIDE--FIRST DEGREE PREMEDITATED MURDER, FIRST DEGREE FELONY MURDER AND SECOND DEGREE MURDER (NO SELF-DEFENSE OR MITIGATION RAISED)
[Name of defendant] is charged with first degree premeditated murder and first degree felony murder. I am going to instruct you on these charges, and also on the lesser included offense of second degree murder. After I give you the elements of these crimes, I will tell you in what order you should consider them. I. FIRST DEGREE PREMEDITATED MURDER The elements of first degree premeditated murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. [Name of defendant] intended to kill [name of decedent] [another person]; 3. S/he did so after premeditation; and 4. S/he did so after deliberation.
Premeditation means forming an intent to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill. Deliberation means considering and reflecting on the intent to kill, turning it over in the mind, giving it second thought. Premeditation--the formation of an intent to kill--may be instantaneous, as quick as thought itself. Deliberation,
however, requires some time to have elapsed between formation of this intent and the fatal act, within which one pauses and actually gives second thought and consideration to the intended act. The law does not require that deliberation take any particular amount of time. It can be days, hours or minutes, or it can be as brief as a few seconds. It varies according to the circumstances of each case. It is the fact of deliberation that the government must prove, not the length of time it may have gone on. [In deciding whether premeditation and deliberation have been proved beyond a reasonable doubt, you may consider the testimony as to the defendant's abnormal mental condition.] II. FIRST DEGREE FELONY MURDER A. WHERE UNDERLYING OFFENSE IS ENUMERATED IN D.C. OFFICIAL CODE 22-2101 The elements of the offense of first degree felony murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. S/he did so while committing or attempting to commit [arson] [first degree sexual abuse] [first degree child sexual abuse] [first degree cruelty to children] [mayhem] [robbery] [kidnapping] [first or second degree burglary of a dwelling while armed]] [any felony involving a controlled substance].
The government need not prove that [name of defendant] intended to kill [name of decedent]. Any killing, even if done without the intent to kill and even if accidental, is murder in the first degree if done in committing or attempting to commit [insert underlying felony]. [Where Multiple Defendants Are Charged with Felony Murder Based on the Offenses Listed Above] [The following instruction should be given only where felony murder based on an offense enumerated in D.C. Code 22-2101 is charged. This instruction is incorporated in bracketed paragraph 6 of the aiding and abetting instruction, No. 3.200. Where felony murder based on an unenumerated offense is charged and there are multiple defendants, the Court must not use the following paragraph or bracketed paragraph 6 of the aiding and abetting instruction with respect to that charge, but must use bracketed paragraph 5 of the aiding and abetting instruction. See Wilson-Bey v. U.S., 903 A.2d 818 (D.C. 2006) (en banc); Kitt v. U.S., 904 A.2d 348 (D.C. 2006) ; Comment to Instruction 3.200.] [If two or more people, acting together, are committing or attempting to commit [insert underlying felony] and one of them, in the course of the felony and in furtherance of the common purpose to commit the felony, kills a human being, both the person who committed the killing and the person or persons who aided and abetted in the felony are guilty of felony murder. [And any person who aids and abets the commission of [insert underlying felony] is guilty of felony murder for a killing that was committed in furtherance of a common purpose to commit that felony or a killing that was, in the ordinary course of things, a natural and probable consequence of acts done in committing that felony. But a person participating in a [insert underlying felony] is not guilty of first degree felony murder if his/her accomplice kills the deceased in a separate and distinct act and to satisfy the accomplice's own ends.]] B. WHERE THE UNDERLYING OFFENSE IS ANY OTHER FELONY
The elements of the offense of murder in the first degree, felony murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time s/he did so, s/he intended to kill [name of decedent] [another person]; and 3. S/he killed [name of decedent] while committing or attempting to commit [insert underlying felony].
[Unlike felony murder based on [insert underlying felony], regardless of whether a defendant is a principal offender or an aider and abettor, the government must prove beyond a reasonable doubt that each defendant personally intended to kill [name of decedent] [another person] for you to find him/her guilty of felony murder based on [insert underlying felony]. III. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].
Second degree murder differs from first degree premeditated murder in that the government need not prove premeditation, deliberation or a specific intent to kill. Second degree murder differs from first degree felony murder in that the government need not prove that the killing occurred in the commission or attempted commission of [insert underlying felony]. But the government does need to prove that the defendant had the intent to kill or seriously injure the decedent, or acted in conscious disregard of an extreme risk of bodily injury to the decedent. Inference on Use of a Weapon
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or, you may conclude that s/he had the intent to inflict serious bodily injury or acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind. Order of Considering Charges
Consider first degree premeditated murder and first degree felony murder separately, and return separate verdicts on each charge. If your verdict on each charge is guilty, do not consider second degree murder. If your verdict on each charge is not guilty, consider second degree murder. If your verdict is guilty on one charge and not guilty on the other, consider second degree murder as a lesser included offense of the charge on which you found the defendant not guilty.
[And if, after making all reasonable efforts to reach a verdict, you are not able to reach a verdict on either or both first degree murder charges, you are permitted to consider second degree murder as a lesser included offense of the charge on which you have been unable to agree.] You should consider only one count of second degree murder [with respect to each decedent] if you found [name of defendant] not guilty of either one or both first degree murder charges [or could not reach a decision on one or both first degree murder charges]. [If the decedent was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. The 2008 release also moved the language that formerly appeared in a separate Part C, when multiple offenders were involved, into Part A and placed it in brackets. Since this language applies only to offenses that are enumerated in D.C. Official Code 22-2101, it logically follows in Part A. Moreover, its placement in Part A is less likely to create confusion in those cases where there are both enumerated and unenumerated felonies. No changes were made in the Fifth Edition. The court should use this instruction when first degree premeditated murder and the first degree felony murder are charged, when second degree murder is given as a lesser included offense of each, and when self-defense and mitigation have not been generated. This charge is intended for cases exemplified by Turner v. U.S., 459 A.2d 1054 (D.C. 1983) , in which a single killing gives rise to charges of both premeditated and felony murder. For a discussion of first degree premeditated murder and second degree murder, see comments to No. 4.201. For a discussion of felony murder, see comment to No. 4.204. See generally Johnson v. U.S., 671 A.2d 428, 433-34 (D.C. 1995) (felony murder convictions were based on a vehicular homicide committed during the asportation (or "carrying away") phase of a robbery and flight from police; court's instruction properly informed the jury of the causal connection required between the homicide and the underlying felony). Turner makes clear that in some factual settings second degree murder constitutes an appropriate lesser included offense of both premeditated and felony murder. In such a case, the judge should allow the jury to consider only one count of second degree murder. 459 A.2d at 1057 n.1 . The instructions on the order of considering the charges thus tell the jury to consider second degree murder if the verdict on either charge is not guilty or the jury is, after reasonable efforts, divided on either of the greater charges. The jury is then told to consider second degree as a lesser included offense of the charge on which the verdict is not guilty or on which it is divided. Where the verdict is not guilty on both greater charges, the jury should also consider just one count of second degree murder. The final sentence to this instruction is based upon the Court of Appeals' direction that the advice in Turner--about considering second degree murder only once although it is a lesser included offense of both first degree murder and felony murder--should be elevated to the text of this instruction. Fisher v. U.S., 749 A.2d 710 (D.C. 2000) . The final phrase of that sentence is bracketed. Ordinarily, it should be given only if the defendant elects the "reasonable efforts" language. However, "[i]f the jury deadlocks on the greater charge ... the trial judge has discretion to give a "reasonable efforts" instruction over the defendant's objection in lieu of granting a mistrial if it concludes that repeating an "acquittal first" instruction would be unduly coercive." Wilson v. U.S., 922 A.2d 1192, 1195 (D.C. 2007) , citing Powell v. U.S., 684 A.2d 373, 381 (D.C. 1996) ; Taylor
v. U.S., 866 A.2d 817, 825 (D.C. 2005) ; Parker v. U.S., 601 A.2d 45, 47 (D.C. 1991) . For further comment on instructions regarding lesser included offenses, see comment to Instruction No. 2.401. Cross references: No. 3.200, Aiding and Abetting; Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age; No. 9.400, Insanity.
Page 299
120 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.206 Instruction 4.206 MURDER OF LAW ENFORCEMENT OFFICER OR PUBLIC SAFETY EMPLOYEE
The elements of the offense of murder of [law enforcement officer] [public safety employee], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. S/he did so intending to kill [name of decedent]; 3. S/he did so after premeditation; 4. S/he did so after deliberation; 5. [At the time [name of defendant] caused his/her death, [name of decedent] was a [law enforcement officer] [public safety officer], that is [a sworn member of the Metropolitan Police Department] [a sworn member of the D.C. Protective Services] [the Director, deputy director or officer of the D.C. Department of Corrections] [a probation, parole, supervised release, community supervision or pretrial services officer of the Court Services and Offender Supervision Agency or the Pretrial Services Agency] [a Metro transit police officer]] [That [name of decedent] was a public safety employee, that is a [D.C. firefighter] [D.C. emergency medical technician/ paramedic] [emergency medical technician/intermediate paramedic] [emergency medical technician] [other federal, state, county or municipal law enforcement officer or corrections officer]]; 6. At the time s/he caused [name of decedent's] death, [name of defendant] [knew] [had reason to know]
that [name of decedent] was a [law enforcement officer] [public safety employee]; and 7. [At the time [name of defendant] caused the death of [name of decedent], [name of decedent] was engaged in the performance of his/her official duties as a [law enforcement officer] [public safety employee.]] [That [name of defendant] caused the death of [name of decedent] on account of [name of decedent's] performance of his/her official duties as a [law enforcement officer] [public safety employee].]. Specific intent to kill means purpose or conscious intention to cause death. Premeditation means forming an intent or design to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill. Deliberation means considering and reflecting on the preconceived design to kill, turning it over in the mind, giving it second thought. Premeditation--the formation of an intent to kill--may be instantaneous, as quick as thought itself. However, it is necessary that some time have elapsed between formation of the intent and the fatal act, within which there is, in fact, deliberation. The law requires no particular period of time. It can be days, hours or minutes, or it may be as brief as a few seconds. It necessarily varies according to the circumstances of each case. After forming an intent to kill, if one does not act instantly, but pauses and actually gives second thought and consideration to the intended act, s/he has, in fact, deliberated. It is the fact of deliberation that the government must prove, not the length of time it may have gone on.____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. It also deleted the bracketed language referring to sentencing enhancements based on age, because the penalty for this offense already is a mandatory life sentence. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. This instruction tracks the statutory language found in D.C. Official Code 22-2106, as well as the already accepted definitions for the relevant mens rea found in the instruction for first degree premeditated murder. See generally Dean v. U.S., 938 A.2d 751 (D.C. 2007) (upholding the constitutionality of this statute). Cross references: Nos. 4.200-4.214, Homicide.
Page 301
121 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.210 Instruction 4.210 HOMICIDE--SECOND DEGREE MURDER--AND VOLUNTARY MANSLAUGHTER (HEAT OF PASSION CAUSED BY ADEQUATE PROVOCATION; NO SELF-DEFENSE RAISED)
[Name of defendant] is charged with second degree murder. I am going to instruct you on this charge and also on the lesser included offense of manslaughter. After I give you the elements of these crimes, I will tell you in what order you should consider them. A. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; and 3. There were no mitigating circumstances
Inference on Use of a Weapon
You have heard evidence that [name of defendant] may have used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or, you may conclude that s/he
intended to inflict serious bodily injury or acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind Mitigating Circumstances
Mitigating circumstances can exist when a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of another that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."] B. VOLUNTARY MANSLAUGHTER Voluntary manslaughter is a killing that would otherwise be second-degree murder except that mitigating circumstances are present. Mitigating circumstances, as I have just defined them for you, do not result in a verdict of not guilty, but reduce the level of guilt from second degree murder to manslaughter. The elements of manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].
Mitigating circumstances are not a defense to manslaughter. Order of Considering Charges
You should consider first whether [name of defendant] is guilty of second degree murder. If you find him/her guilty, do not go on to consider manslaughter. If you find him/her not guilty, go on to consider manslaughter. [And if, after making all reasonable efforts to reach a verdict on second degree murder, you are not able to do so, you are allowed to consider manslaughter.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No.8.103.] ____________________________________ Comment: The Fifth Edition modified the definition of mitigating circumstances to clarify the concept of adequate provocation and to correct an ambiguity in the explanation of the difference between perfect and imperfect self defense.
The court should use this instruction when second degree murder is charged, mitigation in the form of heat-of-passion/adequate provocation is present, and self-defense has not been generated. Where evidence of mitigating circumstances is present, upon request, the court should instruct on mitigating circumstances whether or not the lesser included offense of manslaughter is also requested by either party. See Lee v. United States, 959 A.2d 1141 (D.C. 2008) (error not to give instruction on mitigating circumstances on request where evidence supported the instruction although both government and defense had elected not to request the instruction on voluntary manslaughter); Bostick v. U.S., 605 A.2d 916, 917-18 (D.C. 1992) (internal quotations omitted) (error in second degree murder case where voluntary manslaughter instruction not requested to give only portion of second degree murder instruction on malice where full instruction on provocation, including requisite burden of proof on government, was requested). If there is no evidence showing heat-of-passion, then the court should not instruct on voluntary manslaughter. See, e.g., Davis v. U.S., 724 A.2d 1163 (D.C. 1998) (court properly refused to instruct on manslaughter since there was no evidence showing "heat of passion," resulting from sufficient provocation that would cause an ordinary, reasonable person to lose his or her self control and ac t without reflection). If self-defense and heat-of-passion are present, use Instruction 4.211. The comments to No. 4.201 and 4.202 should be read in conjunction with this instruction. Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age; No. 9.400, Insanity.
Page 304
122 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.211 Instruction 4.211 HOMICIDE--SECOND DEGREE MURDER AND VOLUNTARY MANSLAUGHTER (SELF-DEFENSE AND HEAT OF PASSION CAUSED BY ADEQUATE PROVOCATION)
[Name of defendant] is charged with second degree murder. I am going to instruct you on this charge and also on the lesser included offense of voluntary manslaughter. After I give you the elements of these crimes, I will tell you in what order you should consider them. A. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; 3. There were no mitigating circumstances; and 4. [Name of defendant] did not act in self-defense.
Inference on Use of a Weapon
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If
use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or, you may conclude that s/he intended to inflict serious bodily injury or acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind. Mitigating Circumstances
Mitigating circumstances can exist in two situations. They exist where a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of another that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."] Mitigating circumstances also exist when a person actually believes that s/he is in danger of serious bodily injury, and actually believes that the use of force that was likely to cause serious bodily harm was necessary to defend against that danger, but one or both of those beliefs are not reasonable. The government must prove beyond a reasonable doubt that there were no mitigating circumstances. B. VOLUNTARY MANSLAUGHTER Voluntary manslaughter is a killing that would otherwise be second-degree murder except that mitigating circumstances are present. Mitigating circumstances, as I have just defined them for you, do not result in a verdict of not guilty, but reduce the level of guilt from murder to manslaughter. The elements of manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; and 3. [Name of defendant] did not act in self-defense.
Mitigating circumstances are not a defense to manslaughter. Self-Defense
Self-defense is a complete defense to murder and manslaughter where [name of defendant] actually believed that s/he was in danger of serious bodily injury, and actually believed that the use of deadly force was necessary to defend against that danger and both of these beliefs were reasonable. [Give applicable self-defense instructions.]
In evaluating self-defense, the difference between a complete defense, which acquits of both murder and manslaughter, and a mitigating circumstance, which reduces an offense from murder to manslaughter, is that for a complete defense, the person's actual beliefs about both the danger and the need to use deadly force must be reasonable, whereas for a mitigating circumstance, one or both of these actual beliefs are not reasonable. It is the government's burden to prove beyond a reasonable doubt the absence of self-defense and, for murder, the absence of mitigating circumstances. Order of Considering Charges
You should consider first whether [name of defendant] is guilty of second degree murder. If you find him/her guilty, do not go on to consider manslaughter. If you find [name of defendant] not guilty, go on to consider manslaughter. [And if, after making all reasonable efforts to reach a verdict on second degree murder, you are not able to do so, you are allowed to consider manslaughter.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The Fifth Edition modified the definition of mitigating circumstances to clarify the concept of adequate provocation and to correct an ambiguity in the explanation of the difference between perfect and imperfect self defense. The court should use this instruction when the charge is second degree murder, evidence of mitigating circumstances and self-defense has been introduced. If mitigation is present but self-defense is not, use No. 4.210. See generally Lee v. United States, 668 A.2d 822 (D.C. 1995) (voluntary manslaughter while armed is a lesser included offense of second-degree murder while armed). Where evidence of mitigating circumstances is present, upon request, the court should instruct on mitigating circumstances whether or not the lesser included offense of manslaughter is also requested by either party. See Lee v. United States, 959 A.2d 1141 (D.C. 2008) (error not to give instruction on mitigating circumstances on request where evidence supported the instruction although both government and defense had elected not to request the instruction on voluntary manslaughter); Bostick v. U.S., 605 A.2d 916, 917-18 (D.C. 1992) (internal quotations omitted) (error in second degree murder case where voluntary manslaughter instruction not requested to give only portion of second degree murder instruction on malice where full instruction on provocation, including requisite burden of proof on government, was requested). In Swann v. U.S., 648 A.2d 928, 931 (D.C. 1994) , the Court of Appeals noted that "a defendant's actual belief both in the presence of danger and the need to resort to force, even if one or both beliefs be objectively unreasonable, constitutes a legally sufficient mitigating factor to warrant a finding of voluntary manslaughter rather than second-degree murder." The comments to No. 4.201 and 4.202 should be read in conjunction with this instruction. Lesser included offense: No. 4.100, Assault. Cross references: No. 8.103, Sentencing Enhancements Based on Age; Nos. 4.200-4.214, Homicide; No. 9.400, Insanity.
Page 307
123 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.212 Instruction 4.212 HOMICIDE--VOLUNTARY AND INVOLUNTARY MANSLAUGHTER
A. VOLUNTARY MANSLAUGHTER The elements of voluntary manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]; [and 3. S/he did not act in self-defense.] B. INVOLUNTARY, CRIMINAL-NEGLIGENCE MANSLAUGHTER The elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant ] caused the death of [name of decedent]; 2. The conduct that caused the death was a gross deviation from a reasonable standard of care; and 3. The conduct that caused the death created an extreme risk of death or serious bodily injury. C. INVOLUNTARY, MISDEMEANOR MANSLAUGHTER
The elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. S/he did so while committing or attempting to commit [insert underlying misdemeanor]; and 3. S/he committed or attempted to commit [insert underlying misdemeanor] in a manner that created a reasonably foreseeable risk of appreciable physical injury. A foreseeable risk of appreciable physical injury exists when physical injury is a possible consequence of the manner in which the crime is committed or attempted. The government need not prove that [name of defendant] intended to kill or injure [name of decedent] [another person].
Order of Considering Charges
You should consider first whether [name of defendant] is guilty of voluntary manslaughter. You should then consider whether [name of defendant] is guilty of involuntary criminal negligence manslaughter or involuntary manslaughter while committing [name of offense]. [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No 8.103.] ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. It also added an explanation of the order in which the jury should consider the charges. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The elements of voluntary manslaughter are taken directly from Comber v. U.S., 584 A.2d 26, 42 n.19 (D.C. 1990) (en banc). The elements of criminal negligence involuntary manslaughter are based on id. at 48-49 , and the elements of misdemeanor involuntary manslaughter are based on id. at 49-51 . The explanatory language in the misdemeanor manslaughter instruction is taken both from Comber (regarding foreseeable consequences) and from the felony murder instruction (regarding the government's not having to prove intent). Voluntary manslaughter exists where "the perpetrator kills with a state of mind which, but for the presence of legally recognized mitigating circumstances, would render the killing murder." Id. at 42 . Because of the presence of mitigating circumstances, the government in such circumstances has not charged the defendant with second degree murder. Thus, mitigating circumstances are not a defense to voluntary manslaughter and the government need not disprove mitigation to establish voluntary manslaughter. Id. at n. 19. Additionally, since specific intent or conscious disregard must be proven, forms of excuse such as accident or negligence are covered in the second element. Id. Thus, separate instruction on these defenses is unnecessary (except where they are requested as part of the theory of defense; see Clark v. U.S., 593 A.2d 186, 194-95 (D.C. 1991)) . Where self-defense is generated, however, the jury needs separate instruction. Id. Unlike voluntary manslaughter, involuntary manslaughter does not require proof a specific intent to kill
or injure or even a conscious disregard of an extreme risk of death or serious bodily injury. Comber, 584 A.2d at 49 and nn.32, 52. "The intent necessary to prove criminal negligence involuntary manslaughter is a 'lack of awareness or failure to perceive the risk of injury from a course of conduct under circumstances in which the actor should have been aware of the risk.' Thus, where the accused was aware of the risk of harm, but acted in conscious disregard of it, the killing is murder or voluntary manslaughter, and where the accused is not aware of the risk of harm, but should have been, the killing will be involuntary manslaughter." Boykins v. U.S., 702 A.2d 1242, 1250-51 (D.C. 1997) (citation omitted). See also Smith v. United States, 686 A.2d 537 (D.C. 1996) (same). But an unintentional homicide is excused unless the fact-finder, employing an objective standard, finds either criminal negligence or commission of the homicide during the course of certain misdemeanors. Criminal-negligence, involuntary manslaughter exists when the actor's conduct "both creates 'extreme danger to life or of serious bodily injury,' and amounts to 'a gross deviation from a reasonable standard of care.' " Id. at 48 , quoting Faunteroy v. U.S., 413 A.2d 1294, 1298-99 (D.C. 1980) . The Committee has included both of these elements in the instruction. There is no need to instruct separately on legal justification or excuse, because the standard of risk expressed in the elements "implicitly incorporates the absence of the excuse element of involuntary manslaughter, except in cases of self-defense." Comber, 584 A.2d at 48-49 n.31 . For cases involving criminal-negligence manslaughter, see, among others, Reed v. U.S., 584 A.2d 585, 588 (D.C. 1990) (drunken driver driving at excessive speed crossed median); Faunteroy, supra (death of infant due to parent's failure to provide food and medical care); Thomas v. U.S., 419 F.2d 1203, 1205-06, 136 U.S. App. D.C. 222, 224-25 (1969) (defense evidence that gun in pocketbook went off accidentally sufficient for involuntary manslaughter instruction); U.S. v. Dixon, 419 F.2d 288, 290-93, 135 U.S. App. D.C. 401, 403-06 (1969) (Leventhal, J., concurring) (defendant fired shot between friends to break up argument); Stewart v. U.S., 383 A.2d 330 (D.C. 1978) (act of handing unloaded gun to participant in fight, who loaded gun and shot decedent); Story v. United States, 16 F.2d 342, 57 App. D.C. 3 (1926) (defendant allowed drunk man to drive his car recklessly). Criminal negligence manslaughter may be a lesser included offense of second degree murder. Comber, 584 A.2d at 52 . For further comment, see No. 4.213. Misdemeanor manslaughter is an unintentional homicide committed during the course of certain misdemeanors. Only "inherently dangerous" misdemeanors are included in the class of crimes covered under this offense. Whether a misdemeanor is "inherently dangerous" is a matter of law for the trial court's determination. Comber, 584 A.2d at 50-51 and n.37. See U.S. v. Walker, 380 A.2d 1388 (D.C. 1977) and Walker v. U.S., 403 A.2d 1163 (D.C. 1979) (Walker II) (carrying a pistol without a license); Comber, 584 A.2d at 50 (simple assault). Even if a misdemeanor is inherently dangerous, however, the government must additionally prove that the defendant committed it "in a way which is dangerous under the particular circumstances of the case," and this means "in a manner ... entail[ing] a reasonably foreseeable risk of appreciable physical injury." Id. at 51 . "Foreseeable" means that the appreciable injury must be a "possible consequence," not a "normal consequence." Id. at 51 n.39 . For examples of misdemeanor manslaughter in addition to Walker, see Comber, supra , in which both appellants committed a simple assault leading to the death of the victim. Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age.
Page 310
124 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.213 Instruction 4.213 HOMICIDE--SECOND DEGREE MURDER AND CRIMINAL-NEGLIGENCE INVOLUNTARY MANSLAUGHTER (NO SELF-DEFENSE OR MITIGATION RAISED)
[Name of defendant] is charged with second degree murder. I am going to instruct you on this charge and also on the lesser included offense of involuntary manslaughter. After I give you the elements of, these crimes, I will tell you in what order you should consider them. A. SECOND DEGREE MURDER The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; and 2. At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person, or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person]. B. INVOLUNTARY MANSLAUGHTER The elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] caused the death of [name of decedent]; 2. The conduct which caused the death was a gross deviation from a reasonable standard of care; and 3. The conduct that caused the death created an extreme risk of death or serious bodily injury.
The difference between second degree murder and involuntary manslaughter is in whether the defendant is aware of the risk. To show guilt of second degree murder, the government must prove that [name of defendant] was aware of the extreme risk of death or serious bodily injury. For involuntary manslaughter, the government must prove, not that s/he was aware of the risk, but that s/he should have been aware of it. Order of Considering Charges
You should consider first whether [name of defendant] is guilty of second degree murder. If you find him/her guilty, do not consider manslaughter. If you find him/her not guilty, go on to consider involuntary manslaughter. [And if, after making all reasonable efforts to reach a verdict on second degree murder, you are not able to do so, you are allowed to consider involuntary manslaughter.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: The 2008 release modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. No changes were made in the Fifth Edition. The court should use this instruction when the charge is second degree murder based on a conscious disregard of an extreme risk of serious bodily injury, such as where driving is so reckless that it manifests a disregard for human life, see, e.g., Powell v. U.S., 485 A.2d 596 (D.C. 1984) , and a lesser included offense of criminal-negligence involuntary manslaughter is given. Other sets of facts might support the instruction. See, e.g., Donaldson v. U.S., 856 A.2d 1068, 1074 (D.C. 2004) ("The offense of involuntary manslaughter is not limited to those killings in which the perpetrator did not intend the conduct which caused the death, but encompasses those where the conduct which caused the death was intentionally committed by an actor who should have been, but was not, aware of the risk of death or serious bodily injury." Defendant entitled to instruction where he hit the decedent after he claimed the decedent made sexual advances toward him.); Thomas v. U.S., 419 F.2d 1203, 1205, 136 U.S. App. D.C. 222, 224 (1969) ("Under the law an accidental killing may be second degree murder, manslaughter, or no crime at all, depending on the degree of recklessness involved." Here defense evidence that gun in pocketbook went off accidentally was sufficient for involuntary manslaughter instruction.) (footnote omitted); U.S. v. Dixon, 419 F.2d 288, 290-93, 135 U.S. App. D.C. 401, 403-06 (1969) (Leventhal, J., concurring) (involuntary manslaughter instruction appropriate when defendant pushed decedent while trying to break up a fight and the gun he was holding in an effort to end the fight went off); Stewart v. U.S., 383 A.2d 330, 331-32 (D.C. 1978) (act of handing unloaded gun to participant in fight, who loaded gun and shot decedent sufficient for instruction on involuntary manslaughter0. This instruction is not intended for cases of second degree murder in which the evidence shows an intent to kill or seriously injure, and in which voluntary manslaughter arising out of adequate provocation typically is the lesser included offense. See generally Comber v. U.S., 584 A.2d 26, 52 (D.C. 1990) (en banc). For such cases, the judge should use No. 4.210 or 4.211, depending on whether or not self-defense is generated. For discussion of second-degree murder, see comment to No. 4.202. For a discussion of voluntary and involuntary manslaughter, and relevant cases, see comment to No. 4.212.
The explanatory paragraph after the instruction on involuntary manslaughter is based on Reed v. U.S., 584 A.2d 585, 588 (D.C. 1990) , and Comber, 584 A.2d at 49 . See also Boykins v. U.S., 702 A.2d 1242, 1250-51 (D.C. 1997) ; ( Smith v. United States, 686 A.2d 537 (D.C. 1996) . Cross references: Nos. 4.200-4.214, Homicide; No. 8.103, Sentencing Enhancements Based on Age.
Page 313
125 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.214 Instruction 4.214 NEGLIGENT HOMICIDE
D.C. Official Code 50-2203.01
The elements of negligent homicide, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] operated a motor vehicle; 2. S/he did so in a careless, reckless, or negligent manner; and 3. As a result, [name of defendant] caused the death of [name of decedent]. The phrase "careless, reckless, or negligent manner" means to operate a vehicle without the exercise of ordinary care. To exercise ordinary care means to use the same degree of caution, attention or skill that a reasonable person would use under similar circumstances. It is negligent to do something that a reasonable person using ordinary care would not do. It is also negligent to fail to do something that a reasonable person using ordinary care would do. To exercise ordinary care, a person does not have to act with extreme caution or exceptional skill. Ordinary care is a relative concept. A reasonable person changes his/her conduct according to the circumstances or according to the danger s/he knows, or should know, exists. Therefore, as the danger increases, a reasonable person acts more carefully. The law presumes that all parties exercise ordinary care until proven otherwise. The burden of proof is on the government to overcome this presumption of ordinary care by proving beyond a reasonable doubt that the defendant drove in a careless, reckless, or negligent manner and that this conduct was a cause of the death. A person causes the death of another person if his/her conduct is a substantial factor in bringing about death, and and if
it was reasonably foreseeable that death or serious bodily injury could result from such conduct. There is no legal requirement that a defendant's negligence be the only substantial factor in causing the death. If you find that [name of defendant's] conduct was negligent and that this negligence was a cause of the death, [name of defendant] is not relieved from responsibility even if you find that the [name of decedent] [or another person] was negligent and that negligence also contributed to the [name of decedent's] death. This does not mean that you should give no consideration to the acts of the [name of decedent] [or the other person]. Those acts are to be considered by you so far as they shed light on the question of defendant's negligence and whether defendant's negligence was a cause of [name of decedent's] death. [In this case, the government alleges that driving under the influence of alcohol or any drug or any combination of alcohol or drugs was one of the ways in which the defendant operated the vehicle in a careless, reckless or negligent manner. [If you find that, at the time of testing, [name of defendant's] blood alcohol content was 0.05 grams or less per 100 milliliters of blood or per 210 liters of breath, there is a rebuttable presumption that the defendant was not under the influence of intoxicating liquor. If you fnd that, at the time of testing, [name of defendant's] blood alcohol content was more than 0.05 grams but less than 0.08 grams per 100 milliliters of blood or per 210 liters of breath, you may consider this with other evidence in determiniing whether [name of defendant] was under the influence of intoxicating liquor. If you find that, at the time of testing, [name of defendant's] blood alcohol content was more than 0.08 grams per 100 milliliters of blood or per 210 liters of breath, as a matter of law, s/he was prohibited from operating or being in physical control of any vehicle in the District of Columbia.] [The government [also] may prove that [name of defendant] was under the influence of alcohol or any drug or a combination of alcohol and drugs by other circumstances, such as a field sobriety test, erratic driving, slurred speech, odor of alcohol and any other fact or circumstance at the time of the offense that you think is relevant.] If you find that [name of defendant] was under the influence of alcohol and/or drugs, you may consider this evidence in determining whether the government has proven beyond a reasonable doubt that the defendant operated the vehicle in a careless, reckless or negligent manner.] [In this case, the government alleges that driving too fast was one of the ways in which the defendant operated the vehicle in a careless, reckless or negligent manner. The legal speed limit is only one factor that you may consider in determining whether the defendant was driving too fast. Under certain circumstances, driving below the speed limit may be too fast. Under other circumstances, driving above the speed limit may not be too fast. You should consider all of the surrounding circumstances--including such factors as weather, lighting conditions, visibility, road conditions, time of day, traffic flow, pedestrians--in determining whether the defendant was driving too fast.]____________________________________ Comment: This instruction is based primarily on instructions found in the Standardized Civil Jury Instructions for the District of Columbia (2002), specifically Instruction Nos. 5-2 (Negligence Defined); 5-3 (Relative Concept); 5-4 (Extreme Caution or Exceptional Skill Not Required); 5-10 (Violation of Regulation/Statute--Evidence of Negligence); 5-12 (Proximate Cause Defined); 5-13 (Concurring Causes); 5-19 (Fact of Accident Alone). The definition of "cause" comes from Criminal Jury Instruction No. 4.26. The second to last bracketed paragraph is based on D.C. Official Code 50-2205.02 (Prima facie evidence of intoxication) and should be given only where evidence of intoxication has been introduced. The 2008 release amendments to this instruction are reflected in the text. The last sentence in this parenthetical is based on D.C; Official Code 50-2201.05(b)(1)(A)(i)(I). The last bracketed paragraph is based on D.C. Official Code 50-2203.03 (Immoderate speed not based on legal rate of speed) and should be given only where the speed of the vehicle is at issue. By statute, negligent homicide is a lesser-included offense of any manslaughter committed in the operation of any vehicle. D.C. Official Code 50-2203.02. In Butts v. U.S., 822 A.2d 407, 416 (D.C. 2003) , the Court found no error in instructions that generally
followed the language above with respect to the standard of care and proximate cause, and in refusing to give an instruction on contributory negligence as an intervening cause. The applicable standard in negligent homicides is "ordinary negligence, not gross negligence." Butts, 822 A.2d at 416 , citing Sanderson v. U.S., 125 A.2d 70 (D.C. 1965) ; Standardized Civil Jury Instructions for the District of Columbia, No. 5-2 (2002 rev. ed.) (defining negligence as "the failure to use exercise ordinary care," and defining ordinary care as the "attention or skill that a reasonable person would use under similar circumstances"). The District of Columbia defines "proximate cause" as :that cause which, in the natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred." Wagshal v. District of Columbia, 216 A.2d 172, 175 (D.C. 1966) (citations and internal quotation marks omitted). In order to be found guilty of negligent homicide, the defendant's act or omission must be a cause-in-fact of the victim's injury. To determine cause-in-fact, the Court of Appeals uses the " 'substantial factor test set forth in the Restatement of Torts. ... In the Restatement, the term 'substantial' is used to 'denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable [persons] to regard it as a cause.' " Butts, 822 A.2d at 417 (citations omitted). The first paragraph of Criminal Jury Instruction No. 4.26 incorporates these principles and is, therefore, adopted here with a minor wording change. Unlike in civil cases, "[t]here is no legal requirement ... that a defendant's negligence be the only substantial factor in bringing about the harm." Butts, 822 A.2d at 417 . A person is relieved from responsibility only "if the negligence of the [victim] was the sole cause of the death." Id. (quoting Prezzi v. U.S., 62 A.2d 196, 198 (D.C. 1948)) . "An intervening cause will be considered a superseding legal cause that exonerates the original actor if it was so unforeseeable that the actor's negligent conduct, though still a substantial causative factor, should not result in the actor's liability." Butts, 822 A.2d at 418 . "A superseding cause is an act of a third person or other force." By definition, the victim's negligence which occurs before or contemporaneously with the collision cannot be a superseding cause. Id. In cases where the defendant asserts that the death resulted from a superseding cause, additional instructions should be given. See Criminal Jury Instruction No. 4.26. The victim's negligence can be considered in assessing whether defendant's negligence was a substantial factor in causing the harm. Butts, 822 A.2d at 418 . In cases involving the death of a child, additional instructions may be appropriate. See Standardized Civil Jury Instructions for the District of Columbia (1998), Instruction Nos. 5.07 (Duty Toward Children) and 5.08 (Child's Standard of Care). When intoxication is an issue, the second to last bracketed paragraph should be given. The 2008 release modified this paragraph to more clearly set out the ways in which the jury may consider evidence of driving while intoxicated and/or driving while under the influence. D.C. Code 50-2201.05 "sets forth two distinct ways in which a person may be found to have violated that statute. To establish that a person is guilty of one of them, the so-called "per se" offense of driving "while intoxicated" with which appellant was charged in the information, the District is required to prove only that the person was operating a vehicle ... while the person's blood contained [.08] percent or more alcohol ... . [E]vidence of the defendant's impairment, such as weaving from lane to lane, is unnecessary for a conviction of the "per se" offense of driving with [.08] percent or more blood alcohol content... . A conviction for driving "under the influence"[, the second distinct way of establishing guilt of 40-716(b)(1),] can rest on an
accumulation of evidence other than a test result showing [.08] percent blood alcohol content, e.g., evidence of erratic driving by the accused, slurred speech, odor of alcohol on the breath, and evidence of a blood alcohol content of.05 percent or more. ... No evidence of intoxication, other than a showing of blood alcohol content of [.08] percent or more, is required to establish a "per se" violation because the Council has determined, on the basis of objective scientific evidence, that any person whose blood is comprised of [.08] percent or more alcohol is too intoxicated to operate a motor vehicle safely." Washington v. D.C., 538 A.2d 1151, 1156 (D.C. 1988) (citations and footnote omitted). Accord Villa v. D.C., 778 A.2d 309, 313 n. 3 (D.C. 2001) . When the government alleges that speed was a factor, the last paragraph should be given. By statute, "whether the defendant was driving at an immoderate rate of speed shall not depend upon the rate of speed fixed by law for operating such vehicle." D.C. Official Code 50-2203.03. The Court of Appeals has approved language similar to that above, noting that "the statute does not expressly prohibit evidence of speed regulations and we think such regulations are admissible as one of the circumstances to be considered with all other circumstances, in determining the question of immoderate speed." Prezzi, 62 A.2d at 199 .
Page 317
126 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.230 Instruction 4.230 MURDER AND MANSLAUGHTER--CAUSATION
I. MEDICAL CONDITIONS OR TREATMENT A person causes the death of another person if [his/her conduct is a substantial factor in bringing about death, and if it was reasonably foreseeable that death or serious bodily injury could result from such conduct] [s/he inflicts an injury from which the other person dies.] [This is true even if [name of decedent] contributes to this own death or hastens it by failing to obtain proper medical treatment.] [This is [also] true if [name of decedent] had a weakness or illness that contributed to death and [name of decedent] might not have died but for the weakness or illness.] [As a matter of law, negligent medical treatment is reasonably foreseeable. Thus, [name of defendant] is not relieved of responsibility for [name of decedent's] death if the medical treatment obtained as a result of the injury was negligent, or that different or more skillful medical treatment might have saved [name of decedent's] life, or his/her death was caused by a surgical operation rendered necessary by the injury. [However, as a matter of law, grossly negligent medical treatment is not reasonably foreseeable if it is the sole cause of death. Thus, if the medical treatment obtained was grossly negligent and the original injury did not contribute substantially to the death of [name of decedent], then [name of defendant] would be relieved of responsibility for [name of decedent's] death. The burden is on the government to prove beyond a reasonable doubt that either (1) the medical treatment was not grossly negligent or (2) the original injury contributed substantially to [name of decedent's] the death. If it proves either of these, then [name of defendant], is not relieved of responsibility for [name of decedent's] death." [There is evidence that, during medical treatment made necessary by the injury, [name of decedent] contracted a disease that contributed to his/her death. This fact would not relieve [name of defendant] from responsibility for the death if the
government proves beyond a reasonable doubt that the defendant's conduct necessitated the medical treatment that resulted in [name of decedent's] death.] II. URBAN GUN BATTLE A person causes the death of another person if his conduct is a substantial factor in bringing about the death and if it was reasonably foreseeable that death or serious bodily injury could result from such conduct. It is not necessary for the government to prove that a defendant personally fired the fatal round in this case. Rather, if the government proves beyond a reasonable doubt that: 1. [Name of defendant] was armed and prepared to engage in a gun battle; 2. S/he did, in fact, engage in a gun battle on [insert place and date]; 3. S/he did not act in self-defense, as I will describe that concept to you, at the time he participated in a gun battle; 4. [Name of defendant]'s conduct on [insert place and date] was a substantial factor in the death of [name of decedent]; and 5. It was reasonably foreseeable that death or serious bodily injury to innocent bystanders could occur as a result of [name of defendant]'s conduct on [insert place and time]
Then, as a matter of law, [name of defendant] is deemed to have caused the death of [name of decedent]. ____________________________________ Comment: Part I of this instruction incorporates the principles and the wording of McKinnon v. U.S., 550 A.2d 915 (D.C. 1988) , and Baylor v. U.S., 407 A.2d 664 (D.C. 1979) . Although, it generally should be given only where the evidence supports a theory of defense that the injury was not the in-fact cause of death or the proximate cause of death. See, e.g., Doe v. United States, 583 A.2d 670, 675-76 (D.C. 1990) , the bracketed sentences in the first paragraph may be given in any case to explain the first element of each homicide offense, that is, that the defendant caused the death of the decedent. The 2008 release revised the first paragraph of Part I for clarity. It also added the basic concept that a person causes the death of another if s/he inflicts an injury from which the other person dies. McKinnon makes clear that there are two elements to causation: cause "in fact," and proximate cause. 550 A.2d at 917 . "In fact" causation has often been referred to as "but for" causation. In U.S. v. Hamilton, 182 F. Supp. 548, 550 (D.D.C. 1960) , this aspect of causation was phrased as "a chain of causation that leads to death." The authors of W. LaFave and A. Scott, Substantive Criminal Law, vol. 1, 3.12 at 394-95 (1986), prefer "substantial factor in bringing about the forbidden result" as being more accurate than "but for," because "but for" does not account for the (probably rare) situation in which independent, nearly simultaneous, concurring causes contribute to the forbidden result, and both are necessary to cause the result. It also may be inadequate to explain situations in which a concurring or subsequent event contributes to the forbidden result. Accordingly, the Committee has chosen to use the language from LaFave and Scott in the absence of specific direction from the appellate courts in this jurisdiction. The second aspect of causation, proximate cause, was defined in McKinnon, 550 A.2d at 917-18 . The test in the first paragraph for proximate cause therefore is taken directly from McKinnon.
The bracketed paragraphs are suggested for situations similar to those that have arisen in the past. These are not intended to cover comprehensively all situations that might arise. The first bracketed paragraph in Part I is intended for situations in which the decedent fails to obtain proper medical treatment. See Baylor, supra, 407 A.2d at 668 . The second bracketed paragraph in Part I addresses the situation where a preexisting disease combines with the injury to cause death. The law is clear such a preexisting disease would not necessarily defeat causation. See LaFave and Scott, supra , 3.12 at 405 and n.470. The third bracketed paragraph in Part I is based on Baylor. That case makes clear that medical treatment, even if negligent, is, as a matter of law, foreseeable, and therefore cannot be a basis for relieving a defendant of responsibility if her act caused a "dangerous wound, one calculated to endanger or destroy life." The fourth bracketed paragraph in Part I is also based on Baylor, and makes clear that grossly negligent medical treatment that is the sole cause of death relieves a defendant of responsibility because it is unforeseeable. The court in Baylor says that the test for whether gross negligence was the "sole cause" of death is "whether, when death occurred, the original wound contributed substantially to the event." 407 A.2d at 669 . It should be noted that the Committee has omitted "sole cause" in the instruction, giving instead the definition of "sole cause" provided by the Court of Appeals. A final, noteworthy aspect of Baylor is its indication that ordinarily, as in medical malpractice cases, expert testimony would be needed to show both gross negligence and causation. Id. at 669-70 . This paragraph should be given only if there is sufficient competent evidence that grossly negligent medical treatment was the sole cause of death, a question in the first instance for the judge. The final bracketed paragraph is suggested for situations, as in McKinnon, in which, during competent medical treatment of a wound, a disease (in that case, hepatitis) develops and causes death. McKinnon holds that a jury may find that disease is reasonably foreseeable and thus affirms a refusal to grant a judgment of acquittal. 550 A.2d at 918 . Part II was added in 2008 and is taken directly from the instruction given in Roy v. United States, 871 A.2d 498, 507-08 (D.C. 2005) (reaffirming the proximate cause provisions of Instruction No. 4.230 and finding that in a "High Noon shootout ... the evidence is quite susceptible of an inference that before the first shot was fired, Roy and Settles both had expected to engage in the street gun battle where injury or death to the innocent were foreseeable"). No changes were made in the Fifth Edition.
Page 320
127 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 2. Homicide 1-IV Criminal Jury Instructions for DC Instruction 4.240 Instruction 4.240 SOLICITATION OF MURDER
D.C. Code 22-2104.02(a) (2001)
The elements of solicitation of murder, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] solicited [another person] [insert name of other person] to murder [name of prospective victim]; and 2. [Name of defendant] did so voluntarily and on purpose and not by mistake or accident. "Solicit" means to request, command, or attempt to persuade. It is not necessary that the murder actually occur in order to find [name of defendant] guilty of solicitation of murder.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. This instruction tracks the language of D.C. Code 22-2104.02(a). The emergency version of that statute went into effect on July 19, 2006, and remained in effect under various emergency acts--except from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5:00 p.m. The permanent law went into effect on April 24, 2007. At the time the Fifth Edition went to print, no cases involving this statute had been decided.
Cross references: Nos. 4.200-4.214, Homicide.
Page 322
128 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 3. Robbery, Kidnapping, and Carjacking 1-IV Criminal Jury Instructions for DC Instruction 4.300 Instruction 4.300 ROBBERY
The elements of the offense of robbery, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] took property from [name of complainant]; 2. S/he took the property from the immediate actual possession of [name of complainant], or from [name of complainant's] person; 3. S/he did so against the will of [name of complainant]; 4. S/he used force or violence to take the property, by [using actual physical force or violence] [putting [name of complainant] in fear] [taking the property by sudden or stealthy seizure or by snatching]; 5. S/he carried the property away; 6. S/he took the property without right to it and intending to steal it; and 7. The property had some value. To take property means to get possession of it, so as to be able to exercise control over it. The taking must be against the will of the complainant, because no robbery occurs if the complainant knows about and consents to the taking, or some other authorized person consents on the owner's behalf. The property must have had some value, but the amount of value is not important and the government does not have to prove it had a particular money value.
Property is in the immediate actual possession of [name of complainant] if it is located on [name of complainant's] person or close enough that one could reasonably expect [name of complainant] to exercise physical control over it. [Using actual force or physical violence against [name of complainant] so as to overcome or prevent [name of complainant's] resistance satisfies the requirement of force or violence.] [Putting [name of complainant] in fear, without using actual force or physical violence, can satisfy the requirement of force or violence if the circumstances, such as threats by words or gestures, would in common experience, create a reasonable fear of danger and cause a person to give up his/her money in order to avoid physical harm.] [Taking the property by sudden or stealthy seizure, or by snatching can satisfy the requirement of force or violence if the defendant used enough force to accomplish the actual physical taking from the person of [name of complainant], even though [name of complainant] did not know the property was taken and even though the property was unattached to his/her person.] It is necessary that [name of defendant] carried away the property after taking it, so as to deprive [name of complainant] of its possession, but the least removal of the thing from its place can be enough to show carrying away. The government must establish that [name of defendant] had no right to take the property, and that s/he intended to to steal it. There can be no robbery if the defendant takes the property for a lawful purpose. It is necessary that [name of defendant] intended to deprive [name of complainant] of his/her property and to take it for his/her own use. [If the victim is under 18 or 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: In the Fifth Edition, the Committee eliminated references to "specific intent" and instead referred to what the defendant must have intended to do. The Committee also tried to simplify the language and eliminate redundancies. Depending on whether the defendant is charged with robbery by force and violence, putting in fear, or stealth or snatch, the court should select the appropriate bracketed description of "force," omitting the irrelevant portions. In addition, the last bracketed sentence of the instruction applies when the victim of the robbery is a minor or a senior citizen. D.C. Official Code 22-3601 (2001) already applied a senior citizen enhancement when the victim of the robbery was 60 years of age or older. Section 102 of the Omnibus Public Safety Amendment Act of 2006 created a new enhancement for crimes of violence against minors. That statute went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. It became final in 2007. Instruction 8.103 should be included when the government alleges that the complainant was a senior citizen at the time of the offense. See D.C. Official Code 22-3601 (2001). If the victim was under 18 years of age, then Instruction 8.103 should be given. The government must prove a taking of property from the complainant; insufficient evidence of a taking and separation of property was presented where the government merely proved that the victim was carrying money, two men held guns on the victim and went though his pockets including the pocket containing the money, and the victim reported to the police that he had been robbed. U.S. v. McGill, 487 F.2d 1208, 159 U.S. App. D.C. 337 (1973) . The "person" of the complainant within the meaning of the
statute includes the deceased victim of a homicide so long as the interval between the death and the taking of money is short. Carey v. U.S., 296 F.2d 422, 111 U.S. App. D.C. 300 (1961) . Because a robbery may include a sudden or stealthy seizure or snatching, it is not necessary to prove that the victim had knowledge of the robbery at the time it occurred. U.S. v. Mathis, 963 F.2d 399, 295 U.S. App. D.C. 296 (1992) (stealthy seizure is considered a form of force or violence); Jackson v. U.S., 359 F.2d 260, 123 U.S. App. D.C. 276 (1966) ; cf. Noaks v. U.S., 486 A.2d 1177 (D.C. 1985) (robbery victim need not be ignorant of robbery by stealth). Finally, if "the threatened violence occur[s] directly on the heels of a plainly conditional transfer of possession (conditioned on return or purchase of [the property]), it [is] perfectly logical for the court to instruct the jury that the threatened use of force by [the defendant] did not have to coincide with the initial transfer so long as he used force to prevent [the complainant] from regaining possession of the [property]." Jacobs v. U.S., 861 A.2d 15, 20 (D.C. 2004) . While larceny remains an offense against possession, robbery is essentially a crime against the person. U.S. v. Dixon, 469 F.2d 940, 152 U.S. App. D.C. 200 (1972) . Thus, "possession" under the robbery statute does not require strict legal ownership in the larcenous sense, but only some custody and control by the victim. See, e.g., U.S. v. Spears, 449 F.2d 946, 145 U.S. App. D.C. 284 (1971) (although money stolen did not belong to foreman, it was in his control at the time of a robbery); U.S. v. Bolden, 514 F.2d 1301, 169 U.S. App. D.C. 60 (1975) (where different parties owned property taken, it was nevertheless either in the control of the complainant or under his custody and control at the time it was stolen); Jones v. U.S., 362 A.2d 718 (D.C. 1976) (it is not required to show that victim of robbery owned property that was taken but only that the victim had custody and control of the property). For property to be within the "immediate actual possession" of the complainant, it must be either on the person of the victim or within an area over which the victim could reasonably be expected to exercise some control. Jones v. U.S., 362 A.2d 718 (D.C. 1976) (evidence that money in cash register was taken from sales clerk as custodian for store sufficient to establish possessory element); Rouse v. U.S., 402 A.2d 1218,1220 (D.C. 1979) ("[I]f the actions of the accused ("putting in fear" and/or "force or violence") are responsible for depriving the victim of immediate actual possession, then the jury can properly find the accused guilty of robbery or armed robbery, as the case may be. The crime is not limited to larceny simply because the accused had confronted the victim and frightened him into fleeing before the property was taken."); see also Head v. U.S., 451 A.2d 615 (D.C. 1982) (defining immediate actual possession). Although not explicitly required in the statute, the government must prove that the defendant took the property and carried it away without right to do so and with the specific intent to steal it. Thus, a reading of the robbery statute to the jury in and of itself is an insufficient instruction for this offense since the jury must also be informed clearly and concisely of the elements of the crime, including the intent element. Byrd v. U.S., 342 F.2d 939, 119 U.S. App. D.C. 360 (1965) . See also U.S. v. Owens, 332 A.2d 752 (D.C. 1975) (robbery statute must be read as referring to the common law crime of robbery, which required specific intent to take the property of another; indictment charging that defendant "stole" sufficient to allege specific intent to steal); U.S. v. Robinson, 475 F.2d 376, 154 U.S. App. D.C. 265 (1973) (intent to steal a material element in the offense of robbery). As to the sufficiency of evidence for a robbery conviction, see Driver v. U.S., 521 A.2d 254 (D.C. 1987) (circumstantial evidence that defendant "set up" victim to be robbed by gunman sufficient to support robbery conviction on aiding and abetting theory); Colbert v. U.S., 471 A.2d 258 (D.C. 1984) (although robbery victim did not actually see defendant take the money, circumstantial evidence was sufficient to warrant jury inference that defendant removed money from the safe). Robbery is not a lesser included offense of carjacking. Bryant v. U.S., 859 A.2d 1093, 1108 (D.C. 2004) (armed robbery and armed carjacking offenses do not merge; each offense has at least one element that the other does not have); Pixley v. U.S., 692 A.2d 438, 440 (D.C. 1997) (same).
Lesser included offenses: No. 4.100, Assault; No. 4.110, Assault with Intent to Commit Robbery; No. 4.301, Attempted Robbery; No. 5.300, Theft. Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 3.100 Defendant's Statte of Mind--Note; No. 3.101, Proof of State of Mind; No. 8.100, Aggravating Circumstances; No. 8.101, Armed Offenses--Added Element; No.8.103, Sentencing Enhancements Based on Age.
Page 326
129 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 3. Robbery, Kidnapping, and Carjacking 1-IV Criminal Jury Instructions for DC Instruction 4.301 Instruction 4.301 ATTEMPTED ROBBERY
The elements of the offense of attempted robbery, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] committed an act which was reasonably designed to commit the crime of robbery; 2. S/he intended to commit a robbery; and 3. S/he did more than prepare to commit the crime. His/her act must have come dangerously close to committing the crime of robbery. [You may convict [name of defendant] of attempted robbery even if the evidence shows the crime was completed.] [Read elements of robbery, No. 4.300] [If the victim is under 18 or 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.]____________________________________ Comment: The District of Columbia Court of Appeals has used various formulations to describe the conduct that consitutes an attempt: "except for some interference," "beyond mere preparation" and "dangerous
proximity." Because "dangerous proximity" has been used in the instruction historically, the Committee elected to retain it, while noting that the Court has also used the other formulations. See Comment to Instruction 7.101, Attempt, for an explanation of the various formulations. In addition, the Committee changed "completing the crime" to "committing the crime." A majority of the Committee thought "dangerously close to completing the crime" could be confusing to a jury because the offense of robbery requires multiple steps to complete, such as taking and asportating. The last bracketed sentence of the instruction applies when the victim of the attempted robbery is a minor or a senior citizen. D.C. Official Code 22-3601 (2001) already applied a senior citizen enhancement when the victim of the attempted robbery was 60 years of age or older. Section 102 of the Omnibus Public Safety Amendment Act of 2006 created a new enhancement for crimes of violence against minors. That statute went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. It is anticipated that it will become final in 2007. At the time the Fifth Edition went to print, no cases involving this statute had apparently been decided. Instruction 8.103 should be included when the government alleges that the complainant was a senior citizen at the time of the offense. See D.C. Official Code 22-3601 (2001). If the victim was under 18 years of age, then Instruction 8.103 (A) should be given. See generally Robinson v. U.S., 608 A.2d 115 (D.C. 1992) ; Hawkins v. U.S., 399 A.2d 1306, 1309 (D.C. 1979) ("[A]s a practical matter ... when attempted pickpocketing is the factual predicate for a charge of attempted robbery proof of the commission of any of the acts enumerated in Section 22-1121(4) amounts to proof of an act which went beyond mere preparation, which is an element of proof necessary for a conviction for attempted robbery"). Lesser included offense: No. 4.100, Assault. Cross references: No. 3.101, Proof of State of Mind; No. 4.300, Robbery; No. 7.101, Attempt; No. 8.100, Aggravating Circumstances; No. 8.103, Sentencing Enhancements Based on Age.
Page 328
130 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 3. Robbery, Kidnapping, and Carjacking 1-IV Criminal Jury Instructions for DC Instruction 4.302 Instruction 4.302 CARJACKING
The elements of the offense of carjacking, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] took [attempted to take] [insert type of motor vehicle] from the immediate actual possession of [name of complainant] against [name of complainant's] will; 2. S/he took the [insert type of motor vehicle] without right to it; 3. S/he used force or violence [to attempt] to take [insert type of motor vehicle], by [using actual physical force or violence] [taking [insert type of motor vehicle] by sudden or stealthy seizure or by snatching] [putting [name of complainant] in fear]; and 4. S/he did so [voluntarily and on purpose, and not by mistake or accident] [recklessly]. To take [insert type of motor vehicle] means to get possession of it, so as to be able to exercise control over it. A [insert type of motor vehicle] is in the immediate actual possession of [name of complainant] if it is located close enough that one could reasonably expect [name of complainant] to exercise physical control over it[, and thereby prevent its taking, if not deterred by violence or fear]. [An act is done recklessly if the defendant acted with utter disregard of the facts.]
[Using actual force or physical violence against [name of complainant] so as to overcome or prevent [name of complainant's] resistance satisfies the requirement of force or violence.] [Taking [insert type of motor vehicle] by sudden or stealthy seizure, or by snatching, can satisfy the requirement of force or violence if the defendant used enough force to accomplish the actual physical taking from [name of complainant], even though [name of complainant] did not know the [insert type of motor vehicle] was taken.] [Putting [name of complainant] in fear, without using actual force or physical violence, can satisfy the requirement of force or violence if the circumstances, such as threats by words or gestures, would in common experience, create a reasonable fear of danger and cause a person to give up his/her [insert type of motor vehicle] in order to avoid physical harm.] [Read Instruction 8.101, Part B, if defendant is charged with armed carjacking.] [If the victim is under 18 or 60 years of age or older, insert Sentencing Enhancements Based on Age, 8.103].____________________________________ Comment: The 2010 release added the bracketed language "and thereby prevent its taking, if not deterred by violence or fear" to the definition of "immediate actual possession" reflecting the suggestion of the D.C. Court of Appeals in Sutton v. U.S., 988 A.2d 478, 489 n.26 (D.C. 2010) . However, the Sutton court did not provide guidance on whether or not such language would be appropriate in cases involving the sudden and stealthy seizure of a vehicle. Much of the instruction tracks similar language found in the robbery instruction. See Instruction 4.300, Robbery. The 2002 edition added the bracketed language in elements 1 and 2 for when the defendant is charged with attempted carjacking. The 2002 edition also added the third element to this instruction. The "without right to it" language refers to the defendant's lack of a lawful claim to the motor vehicle, such as ownership. See Allen v. U.S., 697 A.2d 1 (D.C. 1997) (listing as one of the elements of carjacking as the taking "of a person's vehicle," implying the taking of a vehicle owned by someone other than the defendant); see also Pixley v. U.S., 692 A.2d 438 (D.C. 1997) (making no distinction between robbery and carjacking on the issue of actual ownership; thus, implying that a defendant could not be guilty of carjacking if he was the lawful owner of the motor vehicle). A "motor vehicle" means any automobile, self-propelled mobile home, motorcycle, moped, truck, truck tractor, truck tractor with semi or full trailer, bus, or all-terrain vehicle. See D.C. Official Code 22-3215 (a); see also Gordon v. U.S., 906 A.2d 882 (D.C. 2006) (all terrain vehicle is a motor vehicle); U.S. v. Stancil, 422 A.2d 1285 (D.C. 1980) (moped is a motor vehicle). In addition, the statute contains language that a person commits the offense of carjacking if s/he "by any means," knowingly or recklessly by force or violence takes a motor vehicle from a person's immediate, actual possession. The statute then specifically defines various means by which this taking could be effectuated. This instruction tracks that specific language rather than including any reference to the more general "by any means" language because the more specific methods appear to be those that this statute was designed to address. The instruction includes alternative bracketed language. The court should select the appropriate language depending upon the government's theory in each case. With respect to the definition of "immediate actual possession" in the 2010 release, the Committee has attempted to implement the suggestions of the D.C. Court of Appeals in Sutton v. U.S., 988 A.2d 478,
489 n.26 (D.C. 2010) and Winstead v. U.S., 809 A.2d 607 (D.C. 2002) . In Winstead, the court made clear that the phrase "immediate actual possession" was to be interpreted consistently with similar language in the robbery statute. Thus, the victim need not be in the car or in direct physical control of the car at the time of the assault. "[U]nder the carjacking statute, immediate actual possession 'is retained if the car is within such range that the victim could, if not deterred by violence or fear, retain actual physical control over it.' " Id. at 610 (citation omitted). In addition, it is not critical to the question of "immediate actual possession" that the victim be within close range of the car at the precise time the assault begins. "The carjacking statute contains no such temporal limitation. A carjacker may take immediate actual possession of a motor vehicle from another by force or violence at any point during a continuous course of assaultive conduct, not just at the starting point." Id. at 610-11 . As the Winstead Court noted: "It was no less a carjacking because [the defendant] took his victim along with the car." Id. at 611 . See also Downing v. U.S., 929 A.2d 848, 857-58 (D.C. 2007) (a car is within the complainant's "immediate actual possession" so long as it is within such range that he could, if not deterred by violence or fear, retain actual physical control over it); Beaner v. U.S., 845 A.2d 525, 533 (D.C. 2004) ("immediate actual possession is determined not by whether the doors were open or closed, but by whether the victim remained in the vicinity of the car and evinced an intention to return to the car"). Although the statute contains an alternative mens rea of "recklessly," it is most likely that prosecutions under this statute will be brought on the theory that the defendant "knowingly" took the complainant's motor vehicle. As a result, this instruction focuses upon the mens rea requirement of "knowingly." The 2002 edition added the "reckless" language. Thus, if the government proceeds on a "recklessness" theory, then the bracketed language adding and defining "recklessly" should be used. Neither the statute nor this instruction contains a definition of "motor vehicle." Although the title of this legislation was "carjacking," the language in the statute refers more generically to a "motor vehicle." As a result, the definition of a "motor vehicle" which is found in Instruction 5.302, Unauthorized Use of a Motor Vehicle, may be helpful. Unlike other crimes of violence, the carjacking statute provides its own enhancement for offenses committed while armed. Because this statute provides an enhanced penalty where the defendant is "armed with or [has] readily available" any weapon, in any armed carjacking case, the court should give Part B of Instruction 8.101. The last bracketed sentence of the instruction applies when the victim is a minor or a senior citizen. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen's enhancement for this crime when the victim was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. That Act went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. That change became final in 2007. Taking property without right is not a lesser included offense of carjacking because it contains the element of asportation (i.e., carrying away), whereas carjacking does not. Moorer v. U.S., 868 A.2d 137, 141 (D.C. 2005) . See also Bryant v. U.S., 859 A.2d 1093, 1108 (D.C. 2004) (armed robbery and armed carjacking offenses do not merge; each offense has at least one element that the other does not have); Pixley v. U.S., 692 A.2d 438, 440 (D.C. 1997) (same); Malloy v. U.S., 797 A.2d 687 (D.C. 2002) (carjacking and kidnapping are separate offenses because carjacking includes the element, the taking of a motor vehicle, which kidnapping does not); Allen v. U.S., 697 A.2d 1, 2 (D.C. 1997) (carjacking does not merge with UUV; a defendant could commit the crime of carjacking by simply forcing the owner out of an automobile, and by then burning the vehicle (or perhaps stripping it) without taking it from its location).
Cross references: No. 4.300, Robbery; No. 5.302, Unauthorized Use of a Motor Vehicle; No. 8.101, Armed Offenses--Added Element; No. 8.103, Sentencing Enhancements Based on Age.
Page 332
131 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 3. Robbery, Kidnapping, and Carjacking 1-IV Criminal Jury Instructions for DC Instruction 4.303 Instruction 4.303 KIDNAPPING
The elements of the offense of kidnapping, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] seized, confined, abducted or carried away the [name of complainant] against his/her will. 2. [Name of defendant] did so voluntarily and on purpose, and not by mistake or accident; and 3. [Name of defendant] held or detained [name of complainant] for [some benefit] [insert other purpose specified in the indictment]. If [name of complainant] submitted to such seizure or detention, the government must prove that s/he did so involuntarily. [If [name of complainant] is not capable of exercising his/her own will under the law, either because of age or mental condition, then the [seizure] [confinement] [abduction] [carrying away] must be against the will of the his/her [parent] [legal guardian].] The [seizure] [confinement] [abduction] [carrying away] does not have to be for monetary gain or for an illegal purpose, but may be for any purpose that the defendant believes might benefit him/her. [If the victim is under 18 or 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103.]
____________________________________ Comment: D.C. Official Code 22-2001 (2001) is intended to cover the same acts as the federal kidnapping statute, 18 U.S.C. 1201(a)(1). See U.S. v. Wolford, 444 F.2d 876, 879-80, 144 U.S. App. D.C. 1 (1971) ; see also Sinclair v. U.S., 388 A.2d 1201, 1206 & n.12 (D.C. 1978) . Accordingly, this instruction has been simplified consistent with instructions approved for use in the federal circuits. See, e.g., 2A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 46.01-46.06, pp. 288-305 (5th ed. 2000). The last bracketed sentence of the instruction applies when the victim is a minor or a senior citizen. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Code Official 22-3601 (2001) to add a senior citizen enhancement for this crime when the victim was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. That Act went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. The law became final in 2007. In addition to proscribing common forms of kidnapping such as abducting or confining, the statute proscribes "inveigling," "enticing" or "decoying." D.C. Official Code 22-2001 (2001). The Committee has omitted these forms of kidnapping in the interest of simplification. But in cases where inveigling, enticing or decoying are involved, the Committee suggests the following in place of the first element: "That the defendant inveigled, enticed, decoyed [choose the appropriate word] the complainant." The court should then read the second element. It should also provide an appropriate definition of the words "inveigle" or "decoy" as follows: "To 'inveigle' means to lure or entice or lead astray a person by false representations or promises or other deceitful means." "The word 'decoy' means enticement or luring a person by some trick, fraud or temptation." These definitions are taken from the 1978 edition. The kidnapping need not be done for monetary gain or illegal purpose, U.S. v. Healey, 376 U.S. 75 (1964) , but may be done for any purpose "with the expectation of benefit to the transgressor." Gooch v. U.S., 297 U.S. 124, 128 (1936) . The D.C. Court of Appeals held in Dade v. U.S., 663 A.2d 547, 551 (D.C. 1995) , that all the government had to prove was that the defendant "expected to gain some kind of 'benefit' by his actions." See also Davis v. U.S., 613 A.2d 906, 912 (D.C. 1992) ("the detention may be for any purpose that the defendant believes might benefit him"); Pynes v. U.S., 385 A.2d 772, 774 (D.C. 1978) , vacated on other grounds, 446 U.S. 903 (1980) (kidnapping statute is applicable to kidnappings perpetrated for a broad range of purposes or motives, including lust, desire for companionship, revenge, or some other motive which does not involve ransom or reward, such as silencing a witness); U.S. v. Wolford, 444 F.2d 876, 879-80, 144 U.S. App. D.C. 1 (1971) . The 2002 edition also deleted the language "or, acted with the specific intent to hold or detain" from the second element because the mens rea for the completed offense is already adequately defined in the first element. The Supreme Court has stated that "the involuntariness of seizure and detention ... is the very essence of the crime of kidnapping." Chatwin v. U.S., 326 U.S. 455, 464 (1946) . Accord Butler v. U.S., 614 A.2d 875 (D.C. 1992) ; Head v. U.S., 451 A.2d 615, 624 (D.C. 1982) ; Smothers v. U.S., 403 A.2d 306, 313 (D.C. 1979) ; Pynes, 385 A.2d at 773-74 . Where the evidence shows a minimal movement of the complainant or a short period of detention, the court may consider the following language: "There is no requirement that the complainant have been moved any particular distance or have been held for any particular length of time for a kidnapping to
have taken place." See West v. U.S., 599 A.2d 788, 793 (D.C. 1991) ; see also Robinson v. U.S., 388 A.2d 1210, 1211 (D.C. 1978) . The kidnapping statute explicitly refers to culpability of aiders and abettors and conspirators. If the case presents facts supporting culpability on either theory of vicarious liability, the court should give the appropriate instruction. See No. 3.200, Aiding and Abetting and No. 7.103, Co-conspirator's Liability. Given the provision that if the complainant submitted to such seizure or detention, the government must prove that s/he did so involuntarily, in some cases it may be appropriate to include the consent instruction. See No. 9.320, Consent. See Bush v. U.S., 516 A.2d 186, 195 (D.C. 1986) ("While we believe it would have been more appropriate to have used standard instruction 5.19 [Consent], and that the trial court approached the limits of permissible discretion in denying that instruction, we decline to hold that the trial court went beyond those limits in this case."); Jenkins v. U.S., 506 A.2d 1120 (D.C. 1986) (evidence sufficient to instruct the jury that consent is a defense to a charge of kidnapping because lack of consent is not covered in the standard instruction); see also Ledbetter v. U.S., 350 A.2d 379 (D.C. 1976) (failure to instruct jury that consent to accused's sexual advances to 14-year-old boy victim is a defense to kidnapping was not error). See also Blackledge v. U.S., 871 A.2d 1193, 1197 (D.C. 2005) (offenses of enticing a child and kidnapping do not merge because each of the two crimes requires proof of a factual element which the other does not); Bryant v. U.S., 859 A.2d 1093, 1108 (D.C. 2004) (kidnapping and sexual abuse offenses do not merge; "detention is not an element of sexual abuse, and each offense has at least one element that the other does not have"). Cross references: No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 8.101, Armed Offenses--Added Element; No. 8.103, Sentencing Enhancements Based on Age.
Page 335
132 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.400 Instruction 4.400 SEXUAL ABUSE
D.C. Official Code 22-3002 through 22-3006 (2001) I. FIRST DEGREE SEXUAL ABUSE (D.C. Code Official 22-3002) The elements of first degree sexual abuse, each of which the government must prove beyond a reasonable doubt, are that : 1. [Name of defendant] engaged in a sexual act with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual act. Here the specific sexual act alleged is that [name of defendant] [specify act]; [and] [2(a). [Name of defendant] did so by using force against [name of complainant].]; [or] [2(b). [Name of defendant] did so by threatening [name of complainant] or placing [name of complainant] in reasonable fear that [name of person threatened] would be subjected to death, bodily injury, or kidnapping if [name of complainant] did not engage in or submit to the sexual act.]; [or] [2(c). [Name of defendant] did so after rendering [name of complainant] unconscious.]; [or] [2(d). [Name of defendant] did so after administering to [name of complainant] [by force or threat of force] [without the knowledge or permission of [name of complainant]] a drug, intoxicant, or other similar substance that substantially impaired his/her ability to appraise/assess or control his/her conduct] [and] [3. Where a hand, finger or object is used for penetration cases: When s/he engaged in the sexual act or
caused [name of complainant] to engage in or submit to the sexual act, [name of defendant] intended to abuse, humiliate, harass, or degrade [name of complainant] or to arouse or gratify his/her own or another person's sexual desire.
[Force means the use or threatened use of a weapon, the use of such physical strength or violence as is sufficient to overcome, restrain or injure a person, or the use of a threat of harm sufficient to coerce or compel submission by the victim.] [For penetration offenses only: To establish that [specify act], any penetration, however slight, is sufficient.] [The emission of semen is not required for this crime to be complete.] [The fact that [name of defendant] and [name of complainant] were [married] [domestic partners] [living together] at the time of the offense is not a defense to this crime and should not be considered in reaching your verdict.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103.] [If the indictment or information alleges aggravating circumstances, insert Aggravating Circumstances, No. 8.100.] II. SECOND DEGREE SEXUAL ABUSE (D.C. Code Official 22-3003) The elements of second degree sexual abuse, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual act with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual act. Here the specific sexual act alleged is that [name of defendant] [specify act]; [and] [2(a) [Name of defendant] did so by threatening or placing [name of complainant] in reasonable fear that [specify threat]; [or] [2(b). [Name of defendant] did so knowing or having reason to know that [name of complainant] was, at the time of the offense, incapable of appraising the nature of defendant's conduct; or incapable of declining participation in the sexual act, or incapable of communicating unwillingness to engage in that sexual act.] [and]] [3. Where a hand, finger or object is used for penetration cases: When s/he engaged in the sexual act or caused [name of complainant] to engage in or submit to the sexual act, [name of defendant] intended to abuse or humiliate [name of complainant] or to arouse or gratify his/her own or another person's sexual desire.]
[ For penetration offenses only : To establish that [specify act], any penetration, however slight, is sufficient.] [The emission of semen is not required for this crime to be complete.] [The fact that [name of defendant] and [name of complainant] were [married] [domestic partners] [living together] at the time of the offense is not a defense to this crime and should not be considered in reaching your verdict.]
[If the victim is under 18 or was 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103.] [If the indictment or information alleges aggravating circumstances, insert Aggravating Circumstances, No. 8.100.] III. THIRD DEGREE SEXUAL ABUSE (D.C. Official Code 22-3004) The elements of third degree sexual abuse, each of which the government must prove beyond a reasonable doubt, are that: 1. [[Name of defendant] engaged in a sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual contact. Here the specific sexual contact(s) alleged is that [name of defendant] [specify contact]; 2(a) [Name of defendant] did so by using force against [name of complainant]; [or] [2(b). [Name of defendant] did so by threatening [name of complainant] or placing [name of complainant] in reasonable fear that [name of person threatened] would be subjected to death, bodily injury, or kidnapping if [name of complainant] did not engage in or submit to the sexual contact.] [or] [2(c). [Name of defendant] did so after rendering [name of complainant] unconscious] [or] [2(d). [Name of defendant] did so after administering to [name of complainant] [by force or threat of force] [without the knowledge or permission of [name of complainant]], a drug, intoxicant, or other similar substance that substantially impaired his/her ability to appraise/assess or control his/her conduct]; and 3. When s/he engaged in the sexual contact or caused [name of complainant] to engage in or submit to the sexual contact, [name of defendant] intended to abuse or humiliate [name of complainant], or to arouse or gratify his/her own or another person's sexual desire.
[Force means the use or threatened use of a weapon, the use of such physical strength or violence as is sufficient to overcome, restrain or injury a person, or the use of a threat of harm sufficient to coerce or compel submission by the victim.] [The fact that [name of defendant] and [name of complainant] were [married] [domestic partners] [living together] at the time of the offense is not a defense to this crime and should not be considered in reaching your verdict.] [If the victim is under 18 or was 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103.] [If the indictment or information alleges aggravating circumstances, insert Aggravating Circumstances, No. 8.100.] IV. FOURTH DEGREE SEXUAL ABUSE (D.C. Official Code 22-3005) The elements of fourth degree sexual abuse, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual contact. Here the specific sexual contact alleged is that [name of defendant] [specify contact]; [and]
[2(a). [Name of defendant] threatened [name of complainant] or placed [name of complainant] in reasonable fear that [specify threat] if s/he did not engage in the sexual contact]; [or] [2(b) [Name of defendant] knew or had reason to know that [name of complainant] was, at the time of the offense, incapable of assessing the nature of the conduct; incapable of declining participation in the sexual contact; or incapable of communicating unwillingness to engage in the sexual contact]; and 3. When s/he engaged in the sexual contact or caused [name of complainant] to engage in or submit to the sexual contact, [name of defendant] intended to abuse or humiliate [name of complainant], or to arouse or gratify his/her own or another person's sexual desire.
[The fact that [name of defendant] and [name of complainant] were [married] [domestic partners] [living together] at the time of the offense is not a defense to this crime and should not be considered in reaching your verdict.] [If the indictment or information alleges aggravating circumstances, insert Aggravating Circumstances, No. 8.100.] V. MISDEMEANOR SEXUAL ABUSE (D.C. Official Code 22-3006) The elements of misdemeanor sexual abuse, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual [act][contact] with [name of complainant] that is [specify sexual act or contact]; [and] 2. [Name of defendant] knew or should have known that s/he did not have [name of complainant]'s permission to do so; [and] [3. When fingers or objects are used in committing sexual acts or for sexual contacts: When s/he engaged in the sexual [act] [contact], [name of defendant] intended to abuse or humiliate [name of complainant], or to arouse or gratify his/her own or another person's sexual desire.
[The fact that [name of defendant] and [name of complainant] were [married] [domestic partners] [living together] at the time of the offense is not a defense to this crime and should not be considered in reaching your verdict.] [If the indictment or information alleges aggravating circumstances, the Court should give Aggravating Circumstances, No. 8.100.] ____________________________________ Comment: The instructions follow the statutory language the Anti-Sexual Abuse Act of 1994, except that the third element of each offense omits the statutory words "harass" and "degrade." These words may be used, of course, in appropriate circumstances. In the first element of each offense where there is a bracketed "[specify act/contact]", the court should describe the specific sexual acts or contacts alleged in the indictment or information, such as: "[name of defendant] penetrated [name of complainant's] vulva, that is, the external parts of the female sexual organ, by his penis," "contact between [name of defendant's] penis and [name of complainant's] mouth" or "[name of defendant] touched the complainant's breast with his/her hand." The first element of each instruction now includes the language "engaged in a sexual
act/contact with [name of complainant] or caused [name of complainant] to engage in a sexual act/contact" because in most cases both will have occurred. If the facts in particular case suggest otherwise, the court may use one or the other. The court should select one or more of the choices for the second element each offense based on the charges. They have been lettered (A, B, etc) for ease of reference. The bracketed language defining force should be given whenever force is an element the offense of First or Third Degree Sexual Abuse. The bracketed language on penetration should be given for all penetration offenses in First and Third Degree and Misdemeanor Sexual Abuse. The bracketed language on the intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desires should be given for all Second and Fourth Degree Sexual Abuse cases and in all pentration offenses in First and Third Degree Sexual Abuse and Misdemeanor Sexual Abuse that involve a hand, finger or object. The bracketed language that marriage, domestic partnership, or co-habitation is not a defense to any of these offenses should be given where such a relationship exists between the defendant and the complainant. D.C. Official Code 22-3017. Where the indictment alleges age or some other aggravating factor, insert Aggravating Circumstances, Instruction 8.100, or Sentencing Enhancements Based on Age, Instruction 8.103, or both. In Russell v. U.S., 698 A.2d 1007, 1013 (D.C. 1997) , the Court of Appeals held that where the defendant raises a consent defense, the jury must be instructed that it can consider "evidence of consent with respect to the question of whether the government proved beyond a reasonable doubt that the act was accomplished by force." Accord Hicks v. U.S., 707 A.2d 1301 (D.C. 1998) . See Consent Defense to Sexual Abuse, Instruction 4.61. Testimony that the defendant did not intervene because he did not think anything was wrong with his co-defendants' forcing a prostitute to have sex with them did not warrant a consent instruction. Bryant v. U.S, 859 A.2d 1093, 1106 (D.C. 2004) . Where a defendant has been convicted of two violations of the same statute, "criminal acts are considered separate for merger purposes if (1) 'there is an appreciable length of time between the ... offenses' or (2) 'when a subsequent criminal act was not the result of the original impulse but [of] a fresh one.' " Sanchez-Rengifo v. U.S., 815 A.2d 351, (D.C. 2002) , quoted in Ellison v. U.S., 815 A.ed 612, 616-617 (D.C. 2007) (emphasis in original). "An interval may be quite brief and still satisfy the 'appreciable period of time' factor." Gardner v. U.S., 698 A.2d 990, 1002 (D.C. 1997) D.C. 1997), citing Spain v. U.S., 665 A.2d 658, 661 (D.C. 1995) . See also Bryant v. U.S, 859 A.2d at 1108 (convictions for several counts of sexual abuse did not merge where defendants came to "several forks in the road": "significant breaks in time, changes of location, and opportunities to reformulate criminal intent"). See Cullen v. U.S., 886 U.S. 870 (D.C. 2005), 886 A.2d 870 (brief contact between the defendant's mouth and complainant's inner thigh and breast did not involve a fresh impulse and convictions merged). Sexual abuse and kidnapping do not merge because each offense has at least one element that the other does not. Bryant v. U.S, supra, 859 A.2d at 1108 . With respect to misdemeanor sexual abuse, the Court of Appeals has held that: simple assault is a lesser included offense of misdemeanor sexual abuse, Mungo v. U.S., 772 A.2d 240, 246 (D.C. 2001) ; convictions for simple assault and misdemeanor sexual abuse based on the same conduct merge, Mattete v. U.S., 902 A.2d 113 (D.C. 2006) ; there was no constructive amendment of an information that alleged sexual touching of the vagina by proof of touching the inner thigh in an unsuccessful attempt to do so, Carter v. U.S., 826 A.2d 300, 306-307 (D.C. 2003) ; "sexual contact" includes both touching "any of the statutorily enumerated areas of [a cmplainant's] body" and using "another to touch intimate parts of the [defendant's] own body," Pinckney v. United States, 906 A.2d 301, 306 (D.C. 2006) ; because children are legally incapable of consenting to sexual acitivity with adults, they cannot give valid 'permission'
within the meaning of D.C. Code 22-3006," Davis v. U.S., 873 A.2d 1101 (D.C. 2005) . Cross references: No. 4.113, Assault with Intent to Commit First or Second Degree Sexual Abuse or Sexual Abuse of a Child; No. 4.401, Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; No. 4.403, Sexual Abuse of a Ward Patient, Client, Prisoner; No. 4.404, Sexual Abuse of a Patient or Client; No. 4.410, Enticing a Child or Minor; No. 4.411, Enticing a Person Who Represents Him/Herself to Be a Child; No. 8.103, Sentencing Enhancements Based on Age; No. 9.321, Consent Defense to Sexual Abuse; No. 9.700, Marriage Defense to Sexual Abuse of a Child, Sexual Abuse of a Ward, and Sexual Abuse of a Patient or Client.
Page 341
133 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.401 Instruction 4.401 SEXUAL ABUSE OF A CHILD
D.C. Official Code 22-3008 to 22-3009 (2001) I. FIRST DEGREE SEXUAL ABUSE OF A CHILD (D.C. Official Code 22-3008) The elements of the offense of first degree sexual abuse of a child, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual act with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual act. Here the specific sexual act alleged is that [name of defendant] [specify act]; 2. At the time, [name of complainant] was under 16 years of age; [and] 3. [Name of defendant] was at least four years older than [name of complainant]; [and] [4. Where a hand, finger or object is used for penetration cases: When s/he engaged in the sexual act or caused [name of complainant] to engage in or submit to the sexual act,[name of defendant] intended to abuse or humiliate [name of complainant] or to arouse or gratify his/her own or another person's sexual desire.]
[For penetration offenses only: To establish that [name of defendant] [specify act], any penetration, however slight, is sufficient.] [The emission of semen is not required for this crime to be complete.]
[Consent is not a defense to the charge of first degree sexual abuse of a child. You should not consider any evidence that has been presented on the issue of consent.] [Where mistake of age has been raised: It also is not a defense to sexual abuse of a child that [name of defendant] mistakenly believed that [name of complainant] was 16 years of age or older or that s/he was less than four years older than [name of complainant]. You should not consider any evidence that has been presented on [name of defendant's] mistaken belief as to [name of complainant's] age or the age difference between them.] II. SECOND DEGREE SEXUAL ABUSE OF A CHILD (D.C. Official Code 22-3009) The elements of second degree sexual abuse of a child, each of which the government must prove beyond a reasonable doubt, are that : 1. [Name of defendant] engaged in a sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual contact. Here the specific sexual contact alleged is that the defendant [specify contact]; 2. At the time, [name of complainant] was under 16 years of age; 3. [Name of defendant] was at least four years older than [name of complainant]; and 4. When s/he engaged in the sexual contact or caused [name of complainant] to engage in or submit to the sexual act, [name of defendant] intended to abuse or humiliate [name of complainant], or to arouse or gratify his/her own or another person's sexual desire.
[Consent is not a defense to the charge of second degree sexual abuse of a child. You should not consider any evidence that has been presented on the issue of consent.] [Where mistake of age has been raised: It [also] is not a defense to sexual abuse of a child that [name of defendant] mistakenly believed that [name of complainant] was 16 years of age or older or that s/he was less than four years older than [name of complainant]. You should not consider any evidence that has been presented on [name of defendant's] mistaken belief as to [name of complainant's] age or the age difference between them.] ____________________________________ Comment: The instructions follow the statutory language the Anti-Sexual Abuse Act of 1994, except that the fourth element of each offense omits the statutory words "harass" and "degrade." These words may be used, of course, in appropriate circumstances. In the first element of each offense where there is a bracketed "[specify act/contact]", the court should describe the specific sexual acts or contacts alleged in the indictment or information, such as: "[name of defendant] penetrated [name of complainant's] vulva, that is, the external parts of the female sexual organ, by his penis," "contact between [name of defendant's] penis and [name of complainant's] mouth" or "[name of defendant] touched the complainant's breast with his/her hand." The first element of each instruction now includes the language "engaged in a sexual act/contact with [name of complainant] or caused [name of complainant] to engage in a sexual act/contact" because in most cases both will have occurred. If the facts in particular case suggest otherwise, the court may use one or the other. If evidence suggestive of consent is brought out before the
jury, the court should give the bracketed language making clear that consent is not a defense. In cases where there is specific evidence of consent, the additional bracketed language should be given as well. It does not matter whether the child touches an intimate part of the defendant or the defendant touches an intimate part of the child. Pinckney v. U.S., 906 A.2d 301 (D.C. 2006) (the statute "does not specify who must do the touching or whose body must be touched ... provided the sexual act or contact is ... with another person"). By statute, mistake of age and consent are not defenses to these charges. D.C. Code 22-3011 See In re E.F., 740 A.2d 547 (D.C. 1999) (in second degree child sexual abuse case, the government was not required to prove that the defendant knew or should have known the complainant's age or the difference in years between them; the statute imposes a duty on the actor, under pain of strict liability, to determine the age of the victim before having sexual contact with her); Davis v. U.S., 873 A.2d 1101, 1106 (D.C. 2005) (children are legally incapable of consenting to sexual activity with adults"). Marriage, however, is a defense in prosecutions involving only the defendant and a child. D.C. Code 22-3011. When such a defense is raised, see Instruction 9.700. Cross references:; No. 4.113, Assault with Intent to Commit First or Second Degree Sexual Abuse or Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; No. 4.403, Sexual Abuse of a Ward Patient, Client, Prisoner; No. 4.404, Sexual Abuse of a Patient or Client; No. 4.400, Sexual Abuse; No. 4.410, Enticing a Child or Minor; No. 4.411, Enticing a Person Who Represents Him/Herself to Be a Child; No. 9.700, Marriage Defense to Sexual Abuse of a Child, Sexual Abuse, Sexual Abuse of a Ward, and Sexual Abuse of a Patient or Client.
Page 344
134 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.402 Instruction 4.402 SEXUAL ABUSE OF A MINOR
D.C. Code 22-3009.01 and 22-3009.02 A. FIRST DEGREE SEXUAL ABUSE OF A MINOR The elements of first degree sexual abuse of a minor, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual act with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual act. Here the specific sexual act alleged is that [name of defendant] [specify act]; 2. At the time, [name of defendant] was 18 years of age or older; 3. At the time, [name of complainant] was under 18 years of age; [and] 4. [At the time,] [name of defendant] was/is [specify the significant relationship]; [and] [5. Where hand, finger or object is used for a penetration offense: When s/he engaged in the sexual act or caused [name of complainant] to engage in or submit to the sexual act, [name of defendant] intended to abuse or humiliate [name of complainant] or to arouse or gratify his/her own or another person's sexual desire.]
[For penetration offenses only: To establish that [name of defendant] [specify act], any penetration, however slight, is sufficient.]
[The emission of semen is not required for this crime to be complete.] [Consent is not a defense to the charge of first degree sexual abuse of a minor and should not be considered in reaching your verdict.] [Where mistake of age has been raised: It is [also] not a defense to sexual abuse of a minor that [name of defendant] may have mistakenly believed that [name of complainant] was 18 years of age or older and should not be considered in reaching your verdict.] B. SECOND DEGREE SEXUAL ABUSE OF A MINOR The elements of second degree sexual abuse of a minor, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual contact. Here the specific sexual contact alleged is that [name of defendant] [specify contact]; 2. At the time, [name of defendant] was 18 years of age or older; 3. At the time, [name of complainant] was under 18 years of age; [and] 4. [At the time] [name of defendant] was/is [specify the significant relationship]; [and] 5. When s/he engaged in the sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to the sexual contact, [name of defendant] intended to abuse or humiliate [name of complainant] or to arouse or gratify his/her own or another person's sexual desire.
[Consent is not a defense to the charge of second degree sexual abuse of a minor and should not be considered in reaching your verdict.] [Where mistake of age has been raised: It is also not a defense to sexual abuse of a minor that [name of defendant] mistakenly believed that [name of complainant] was 18 years of age or older it and should not be considered in reaching your verdict.] ____________________________________ Comment: The instructions follow the statutory language of D.C. Code 22-3009.01 and 22-3009.02, with definitions from D.C. Code 22-3001 except that the fifth element of each offense omits the words "harass" and "degrade". These words may be used, of course, in appropriate circumstances. In the first element of each offense where there is a bracketed "[specify act/contact]", the court may describe the specific sexual acts or contacts alleged in the indictment or information, such as: "[name of defendant] penetrated [name of complainant's] vulva, that is, the external parts of the female genitalia, by his penis," "contact between [name of defendant's] penis and [name of complainant's] mouth" or "contact between [name of defendant's] hand and [name of complainant's breast]." The first element of each instruction now includes the language "engaged in a sexual act/contact with [name of complainant] or caused [name of complainant] to engage in a sexual act/contact" because in most cases both will have occurred. If the facts in particular case suggest otherwise, the court may use one or the other.
The significant relationship between the defendant and the complainant should be inserted in the fourth element of each instruction. For example, the defendant was: the complainant's "parent" or "teacher" or "babysitter's boyfriend" or the defendant "was in a position of trust or authority over" the complainant. See D.C. Code 22-3001(10). Mistake of age and consent are not defenses to these charges. D.C. Code 22-3011 (2001). See Davis v. U.S., 873 A.2d 1101, 1105 (D.C. 2005) (children cannot consent to sexual advances); In re E.F., 740 A.2d 547 (D.C. 1999) (in second degree child sexual abuse case, the government was not required to prove that the defendant knew or should have known the complainant's age). The bracketed language for each of these non-defenses should be given as appropriate. D.C. Official Code 22-3011 (2001) specifically provides that marriage may be a defense in prosecutions involving only the defendant and a child or minor. When such a defense is raised, see Instruction 9.700. Cross references: No. 4.113, Assault with Intent to Commit First or Second Degree Sexual Abuse or Sexual Abuse of a Child; No. 4.400, Sexual Abuse; No. 4.403, Sexual Abuse of a Ward Patient, Client, Prisoner Patient, Client, or Prisoner; No. 4.404, Sexual Abuse of a Patient or Client; No. 4.410, Enticing a Child or Minor; No. 4.411, Enticing a Person Who Represents Him/Herself to Be a Child; No. 9.700, Marriage Defense to Sexual Abuse of a Child, Sexual Abuse of a Ward, and Sexual Abuse of a Patient or Client.
Page 347
135 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.403 Instruction 4.403 SEXUAL ABUSE OF A WARD PATIENT, CLIENT, PRISONER
D.C. Official Code 22-3013, 22-3014 (2001) A. FIRST DEGREE SEXUAL ABUSE OF A [WARD] [PATIENT] [CLIENT] [PRISONER] The elements of the offense of first degree sexual abuse of a [ward] [patient] [client] [prisoner], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual act with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual act. Here the specific sexual act alleged is that [name of defendant] [specify act]; 2. At that time, [name of complainant] was [detained in] [resided in] [being transported to or from] a [specify kind of institution]; [and] [3)(a) At that time, [name of defendant] was a [specify defendant's position] at that facility;] [or] [3(b) At the time, [name of defendant] was an [ambulance] [bus] driver or attendant who participated in the transportation of [name of complainant] to and from that facility;] [or] [3(c) At the time, [name of defendant] was the official custodian of [name of complainant]. [and]] [4. Where fingers or objects are used in penetration offenses: When s/he engaged in the sexual act or caused [name of complainant] to engage in or submit to the sexual act, [name of defendant] intended to abuse or humiliate [name of complainant] or to arouse or gratify his/her own or another person's sexual desire.]
[For penetration offenses only: To establish that [specify act], any penetration, however slight, is sufficient.] [Consent is not a defense to first degree sexual abuse of a [ward] [patient] [client] [prisoner] and should not be considered in reaching your verdict.] B. SECOND DEGREE SEXUAL ABUSE OF A [WARD] [PATIENT] [CLIENT] [PRISONER] The elements of second degree sexual abuse of a ward, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual contact. Here the specific sexual contact alleged is that [name of defendant] [specify act ; 2. At that time, [name of complainant] was [detained in] [resided in] [being transported to or from] a [specify kind of institution]; [3(a) At that time, [name of defendant] was a [specify defendant's position] at that facility;] [or] [3(b) At the time, [name of defendant] was an [ambulance] [bus] driver or attendant who participated in the transportation of [name of complainant] to and from that facility;] [or] [3(c) At the time, [name of defendant] was the official custodian of [name of complainant;] and 4. When s/he engaged in the sexual contact or caused [name of complainant] to engage in or submit to the sexual contact, [name of defendant] intended to abuse, or humiliate[name of complainant] or to arouse or gratify his/her own or another person's sexual desire.
[Consent is not a defense to second degree sexual abuse of a [ward] [patient] [client] [prisoner] and should not be considered in reaching your verdict.] ____________________________________ Comment: The instructions follow the statutory language. except the fourth element of each offense omits the words "harass" and "degrade." These words may be used, of course, in appropriate circumstances. In the first element of each offense where there is a bracketed "[specify act/contact]", the court should describe the specific sexual acts or contacts alleged in the indictment or information, such as: "[name of defendant] penetrated [name of complainant's] vulva, that is, the external parts of the female genitalia, by his penis" "contact between [name of defendant's] penis and [name of complainant's] mouth" or "contact between [name of defendant's] hand and [name of complainant's] breast." The first element of each instruction now includes the language "engaged in a sexual act/contact with [name of complainant] or caused [name of complainant] to engage in a sexual act/contact" because in most cases both will have occurred. If the facts in particular case suggest otherwise, the court may use one or the other. In the second element of each instruction, insert the kind of institution, such as hospital, treatment facility, detention facility, correctional facility, group home, etc. In 3(a) of each instruction, insert the defendant's position such as staff member, employee, contract employee, consultant, or volunteer. The court should select one or more of the choices for the third element each offense based on the charges. They have been lettered (a) to (c) for ease of reference. By statute, consent is not a defense to this offense. D.C. Code 22-3017. The
bracketed language should be given as appropriate. Marriage, however, is a defense. Id. When such a defense is raised, see Instruction 9.700. See generally White v. U.S., 958 A.2d 259, 261 (D.C. 2008) (finding sufficient evidence of a sexual act to support conviction of guard for first degree sexual abuse of a prisoner).
Page 350
136 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.404 Instruction 4.404 SEXUAL ABUSE OF A PATIENT OR CLIENT
D.C. Official Code 22-3015, 22-3016 (2001) A. FIRST DEGREE SEXUAL ABUSE OF A PATIENT OR CLIENT The elements of first degree sexual abuse of a patient or client, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual act with [name of complainant]. Here the specific sexual act alleged is that [name of defendant] [specify act]; 2. At the time, [name of defendant] purported to provide [specify type of professional services] to [name of complainant]]; [and] [3(a). At the time, [name of defendant] represented falsely to [name of complainant] that the sexual act was for a bona fide [specify type of professional services] purpose;]] [or] [3(b). The nature of the treatment or service provided by [name of defendant] and the [mental] [emotional] [physical] condition of [name of complainant] were such that the defendant knew or had reason to know that [name of complainant] was impaired from declining participating in the sexual act;] [or] [3(c). [Name of defendant] represented falsely that [he] [she] was licensed as a [name of profession]]; [or] [3(d). The sexual act occurred during the course of a [consultation] [examination] [treatment] [therapy]
[provision of professional services]]; [and] [4. Where fingers or objects are used for penetration offenses: When s/he engaged in the sexual act or caused [name of complainant] to engage in or submit to the sexual act], [name of defendant] intended to abuse or humiliate [name of complainant], or to arouse or gratify his/her own or another person's sexual desire.
[For penetration offenses only: To establish that [specify act], any penetration, however slight, is sufficient.] [Consent is not a defense to first degree sexual abuse of a patient or client and should not be considered in reaching your verdict.] B. SECOND DEGREE SEXUAL ABUSE OF A PATIENT OR CLIENT The elements of second degree sexual abuse of a patient or client, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in a sexual contact with [name of complainant] or caused [name of complainant] to engage in or submit to a sexual contact. Here the specific sexual contact alleged is that [name of defendant] [specify contact ; 2. At the time, [name of defendant] purported to provide [specify type of professional services] to [name of complainant]; and [3(a). At the time, [name of defendant] represented falsely to [name of complainant] that the sexual contact was for a bona fide [specify type of professional services] purpose;]] [or] [3(b). The nature of the treatment or service provided by [name of defendant] and the [mental] [emotional] [physical] condition of [name of complainant] were such that the defendant knew or had reason to know that [name of complainant] was impaired from declining participating in the sexual contact;] [or] [3(c). [Name of defendant] represented falsely that [he] [she] was licensed as a [name of profession]]; [or] [3(d). The sexual contact occurred during the course of a [consultation] [examination] [treatment] [therapy] [provision of professional services]]; and 4. When s/he engaged in the sexual contact or caused [name of complainant] to engage in or submit to the sexual contact, [name of defendant] intended to abuse or humiliate [name of complainant], or to arouse or gratify his/her own or another person's sexual desire.
[Consent is not a defense to second degree sexual abuse of a patient or client and should not be considered in reaching your verdict.] ____________________________________ Comment: This instruction follows the statutory language in D.C. Official Code 22-3013 and 22-3014. The
fourth element each offense omits the words "harass" and "degrade." These words may be used, of course, in appropriate circumstances. In the first element of each offense where there is a bracketed "[specify act/contact]", the court should describe the specific sexual acts or contacts if alleged in the indictment or information, such as: "[name of defendant] penetrated [name of complainant's] vulva, that is, the external parts of the female sexual organ, by his penis," "contact between [name of defendant's] penis and [name of complainant's] mouth" or "contact between [name of defendant's] hand and [name of complainant's] breast." The court should select one or more of the choices for the third element each offense based on the charges. They have been lettered (a) to (d) for ease of reference. The court should insert the kind of professional services being rendered, e.g., medical, legal, psychiatric, etc. in 3(a) and 3(b), and the kind of profession in 3(c), e.g., medical doctor, attorney, psychiatrist, etc. The bracketed fourth element should be given as indicated for first degree sexual abuse of patient or client. The fourth element in the instruction for second degre sexual abuse of a patient or client is not bracketed and should be given in every case. By statute, consent is not a defense to this offense. D.C. Official Code 22-3017. The bracketed language should be given as appropriate. Marriage, however, is a defense. Id. When such a defense is raised, see Instruction 9.700. Cross references: No. 4.113, Assault with Intent to Commit First or Second Degree Sexual Abuse or Sexual Abuse of a Child; No. 4.400, Sexual Abuse; No. 4.401, Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; No. 4.403, Sexual Abuse of a Ward Patient, Client, Prisoner; No. 4.410, Enticing a Child or Minor; No. 4.411, Enticing a Person Who Represents Him/Herself to Be a Child; No. 9.700, Marriage Defense to Sexual Abuse of a Child, Sexual Abuse, Sexual Abuse of a Ward, and Sexual Abuse of a Patient or Client.
Page 353
137 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.410 Instruction 4.410 ENTICING A CHILD OR MINOR
D.C. Official Code 22-3010(a) (2001)
The elements of enticing a [child] [minor], each of which the government must prove beyond a reasonable doubt, are that: A. TAKING TO A PLACE 1. [Name of defendant] took [name of complainant] to [name of place]; 2. S/he did so for the purpose of committing a sexual act or sexual contact with [name of complainant];
[If complainant was a child: 3. At the time [name of defendant] took him/her, [name of complainant] was less than 16 years of age; and 4. [Name of defendant] was at least than 4 years older than [name of complainant].]
[If the complainant was a minor: 3. At the time, [name of defendant] took him/her, [name of complainant] was less than 18 years of age; and
4. [At the time] [name of defendant] was/is [specify the significant relationship].] B. SEDUCTION/ENTICING 1. [Name of defendant] [convinced] [attempted to convince] [name of complainant] to engage in a sexual act or sexual contact;
[If complainant was a child: 2. At the time, [name of complainant] was less than 16 years of age; and 3. [Name of defendant] was at least 4 years older than [name of complainant].]
[If the complainant was a minor: 2. At the time, [name of complainant] was less than 18 years of age; and 3. At the time] [name of defendant] was [specify the significant relationship].
"Sexual act" means the penetration, however slight, of the anus or vulva of another by a penis; contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or the penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to arouse or gratify the sexual desire of, or abuse or, humiliate any person. "Sexual contact" means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of, or abuse or humiliate any person. Consent is not a defense to the charge of enticing a [child] [minor] and should not be considered in reaching your verdict. [If mistake of age is raised: It is [also] not a defense to enticing a [child] [minor] that [name of defendant] may have mistakenly believed that [name of complainant] was [16] [18] years of age or older [or that [s/he was less than 4 years older than [name of complainant]] and should not be considered in reaching your verdict. ____________________________________ Comment: This instruction follows the statutory language except the definitions of sexual act and sexual contact omit the verbs "harass" and "degrade" in D.C. Official Code 22-3001 and the first element under Part B omits the verbs "seduces, entices, allures ... or persuades or attempts to seduce, entice, allure, ... or persuade a child or minor ... ." in D.C. Official Code 22-3010(a). Where one of these words better describes the alleged conduct, it could, of course, be used. The court should give either A (1) and (2) or B(1) or both and the remainder of the instruction starting with the age of the complainant. The court should insert the significant relationship alleged when the complainant is a minor. For example, the defendant was: the complainant's "parent" or "teacher" or "babysitter's boyfriend" or the defendant "was in a position of trust or authority over" the complainant. See D.C. Official Code 22-3001(10) (2001).
Mistake of age and consent are not defenses to these charges. D.C. Official Code 22-3011 (2001). See Davis v. U.S., 873 A.2d 1101, 1105 (D.C. 2005) (children cannot consent to sexual advances); In re E.F., 740 A.2d 547 (D.C. 1999) (in second degree child sexual abuse case, the government was not required to prove that the defendant knew or should have known the complainant's age). The bracketed paragraphs for each of these non-defenses should be given as appropriate. D.C. Official Code 22-3011 (2001) specifically provides that marriage may be a defense in prosecutions involving only the defendant and a child or minor. When such a defense is raised, see Instruction 9.700. The definitions of "sexual act" and "sexual contact" are taken from D.C. Official Code 22-3001 (2001). See generally Blackledge v. U.S., 871 A.2d 1193, 1197 (D.C. 2005) (offense of enticing a child and kidnapping do not merge because each crime requires proof of a factual element that the other does not). Cross references: No. 4.401, Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; 4.411, Enticing a Person Who Represents Him/Herself to Be a Child.
Page 356
138 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.411 Instruction 4.411 ENTICING A PERSON WHO REPRESENTS HIM/HERSELF TO BE A CHILD
D.C. Official Code 22-3010(b) (2001)
The elements of enticing a person who represents him/herself to be a child, each of which the government must prove beyond a reasonable doubt, are that: A. SEDUCTION 1. [Name of defendant] attempted to convince [name of complainant] to engage in a sexual act or sexual contact; 2. At the time, [name of complainant] told [name of defendant] that s/he was less than sixteen years of age; 3. [Name of defendant] is at least four years older than the age [name of complainant] represented him/herself to be. B. LURING TO A PLACE 1. [Name of defendant] attempted to convince [name of complainant] to go to [name of place]; 2. [Name of defendant] did so for the purpose of engaging in a sexual act or sexual contact with [name of complainant];
3. At the time, [name of complainant] told [name of defendant] that s/he was less than sixteen years of age; and 4. [Name of defendant] is at least four years older than the age [name of complainant] represented him/ herself to be.
"Sexual act" means the penetration, however slight, of the anus or vulva of another by a penis; contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or the penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person. "Sexual contact" means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person. ____________________________________ Comment: This instruction follows the statutory language except the definitions of sexual act and sexual contact omit the verbs "harass" and "degrade" in D.C. Official Code 22-3001 and the first element under Part B omits the verbs "seduces, entices, allures ... or persuades or attempts to seduce, entice, allure, ... or persuade a child or minor ... ." in D.C. Official Code 22-3010(a). Where one of these words better describes the alleged conduct, it could, of course, be used. Depending on the charges, the court should give either A or B or both, in which case it need not repeat the age or age difference in the last two elements. For this offense, it is not necessary to specify the sexual act or contact because it will never have occurred. Consent and mistake of age are not defenses to these charges. D.C. Official Code 22-3011. Instructions are not included because, in most cases, they will not be at issue. In particular, mistake of age in this context is inappropriate because the elements of the crime assume that the person enticed is not a child, but is only representing him/herself to be a child. Where the person enticed actually is a child, the appropriate charge is D.C. Official Code 22-3010(a) (2001) and the appropriate instruction is No. 4.402. There may be cases where the information about the complainant's purported age is posted on an internet website, or is otherwise publicly available and, therefore, the complainant may not have told the defendant directly his/her purported age. In such cases, the second element under A and the third element under B should be revised along the following lines:
At the time, [name of defendant] knew or had reason to know that [name of complainant] had represented [himself][herself] to be less than sixteen years of age, that is [insert age]. Cross references: No. 4.401, Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; No. 4.410, Enticing a Child or Minor.
Page 358
139 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.412 Instruction 4.412 ARRANGING FOR A SEXUAL CONTACT WITH A CHILD
D.C. Official Code 22-3010.02 (2001) A. REAL CHILD The elements of arranging for a sexual contact with a child, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] made an arrangement with [name of other adult]; 2. The arrangement was for [name of defendant] to engage in a sexual [act] [contact] with [name of child]; 3. [Name of child] [was] less than sixteen years of age; and 4. [Name of defendant] is more than four years older than the child.
["Sexual act" means the penetration, however slight, of the anus or vulva of another by a penis; contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or the penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person.] ["Sexual contact" means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person.]
B. FICTITIOUS CHILD The elements of arranging for a sexual contact with a fictitious child, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] made an arrangement with [name of other adult]; 2. When the arrangement was made, [name of other adult] [was a law enforcement officer] [was working at the direction of a law enforcement officer]; 3. The arrangement was for [name of defendant] to engage in a sexual [act] [contact] with a child; 4. The child was represented to be less than sixteen years of age; and 5. [Name of defendant] was more than four years older than the child [was represented to be].
[It is not a defense to this charge that the child was fictitious and [name of other adult] never intended to provide a child to the defendant for a sexual act or contact.] ["Sexual act" means the penetration, however slight, of the anus or vulva of another by a penis; contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or the penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person.] ["Sexual contact" means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of or abuse or humiliate any person.] ____________________________________ Comment: This instruction is new in the 2011 release. This offense targets different conduct than that of an adult who directly lures or persuades a real or fictitious child to engage in a sexual act or contact (D.C. Official Code 2-3010, Instructions 4.410, 4.411). It applies to conduct committed on or after January 18, 2011, when the temporary Public Safety Legislation Sixty-Day Layover Emergency Amendment Act of 2010 (Act 18-693) took effect. The offense is made permanent by the Criminal Code Amendment Act of 2010. Part A is given when a real child is involved. Part B is given if the the child is fictitious. The definitions of sexual act and sexual contact follow the statutory language at D.C. Official Code 22-3001 except that they omit the verbs "harass" and "degrade" Where one of these words better describes the alleged conduct, it could, of course, be used. The Committee has put the definitions in brackets because in many cases, the nature of the sexual act or contact will not be an issue. Cross references: No. 4.401, Sexual Abuse of a Child; No. 4.402, Sexual Abuse of a Minor; No. 4.410, Enticing a Minor; No. 4.411, Enticing a Person who Represents Him/Herself to be a Child.
Page 360
140 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 4. Sex Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.420 Instruction 4.420 VOYEURISM
D.C. Code 22-3531 A. HIDDEN OBSERVATION The elements of voyeurism, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [occupied a hidden observation post] [[installed or maintained] [a peephole] [a mirror] [specify electronic device]]; 2. [Name of defendant] did so for the purpose of observing an individual [using a bathroom or rest room] [who was totally or partially undressed] [changing clothes] [engaging in sexual activity]; and 3. [Name of defendant] did so secretly. B. ELECTRONIC RECORDING The elements of voyeurism, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] electronically recorded [name of complainant] while s/he was [using the bathroom or restroom] [totally or partially undressed] [changing clothes] [engaging in sexual activity]; 2. [Name of defendant] did so voluntarily and on purpose, not by mistake or accident; 3. [Name of complainant] had a reasonable expectation of privacy when s/he was [using the bathroom or restroom] [totally or partially undressed] [changing clothes] [engaging in sexual activity], s/he; and
4. When [name of defendant] electronically recorded him/her, [name of complainant] had not been informed of and had not agreed to be recorded. C. IMAGE CAPTURING The elements of voyeurism, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [photographed] [videotaped] [electronically recorded] the private area of [name of complainant]; 2. [Name of defendant] did so voluntarily and on purpose, and not by mistake or accident; 3. At the time, [name of complainant] had a reasonable expectation of privacy; and 4. When [name of defendant] [photographed] [videotaped] [electronically recorded] [his/her [specify private area], [name of complainant] had not been informed of and had not agreed to be recorded.
"Private area" means the naked or undergarment-clad genitals, pubic area, anus, buttocks or female breast below the top of the areola. D. DISTRIBUTION The elements of voyeurism, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [distributed] [attempted to distribute], directly or indirectly, a [specify medium]. 2. When [name of defendant] distributed the [specify medium] s/he knew or had reason to know that [it was] [they were] taken by a person who: [insert elements from A, B. or C above, substituting the name of the other person, if alleged, or "the person" for "name of defendant" E. DEFENSES Evidence has been introduced that [name of defendant] may have engaged in this activity lawfully. The defendant may not be convicted of this offense unless the government proves beyond a reasonable doubt that [name of defendant] was not conducting: [1. Lawful law enforcement, correctional, or intelligence observation or surveillance.] [2. Security monitoring in [name of defendant]'s own home.] [3. Security monitoring in a building where there are signs prominently displayed informing persons that the entire premises or designated portions of the premises are under surveillance; [or]] [4. A medical procedure that is conducted under circumstances where the patient is unable to give consent.] ____________________________________ Comment:
Section 105 of the Omnibus Public Safety Act of 2006 created this new offense. At the time the Fifth Edition went to print, no cases involving this statute had been decided. There are minor editorial changes from the instruction in the previous edition for clarity and consistency. The statute defines an "electronic device" as "any electronic, mechanical, or digital equipment that captures visual or aural images, including cameras, computers, tape recorders, video recorders and cellular telephones." D.C. Code 22-3531(a)(1). Similarly, the statute defines "private area" as "the naked or undergarment-clad genitals, pubic area, anus, buttocks or female breast below the top of the areola." D.C. Code 22-3531(a)(2). The media referred to in D(1) include photograph(s), film, audiotape, compact disc, digital video disc, image or series of images, sounds or series of sounds. The appropriate terms should be inserted into the instructions where indicated.
Page 363
141 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.500 Instruction 4.500 SOLICITATION OF A CRIME OF VIOLENCE
D.C. Official Code 22-2104.02 (2001)
The elements of solicitation of [insert crime of violence], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] solicited [another person] [insert name of other person] to commit [insert crime of violence]; and, 2. [Name of defendant] did so voluntarily, on purpose, and not by mistake or accident. "Solicit" means to request, command, or attempt to persuade. It is not necessary that [insert crime of violence] actually occur in order to find [name of defendant] guilty of solicitation.____________________________________ Comment: The Fifth Edition modified this instruction to simplify the language and make it easier to understand. The Committee did not intend to make any substantive change in the contents of the instruction. This instruction tracks the language of D.C. Official Code 22-2104.02(b). The emergency version of that statute went into effect on July 19, 2006, and remained in effect under various emergency acts--except from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5:00 p.m. The permanent law went into effect on April 24,
2007. At the time the Fifth Edition went to print, no cases involving this statute had been decided. The crimes of violence listed in D.C. Official Code 23-1331(4) (2001) are: aggravated assault; an act of terrorism; arson; assault on a police officer (felony); assault with a dangerous weapon; assault with intent to kill, committing first degree sexual abuse, second degree sexual abuse, or child sexual abuse; assault with intent to commit any other offense; burglary; carjacking; child sexual abuse; cruelty to children in the first degree; extortion or blackmail accompanied by threats of violence; gang recruitment, participation, or retention by the use or threatened use of force, coercion, or intimidation; kidnapping; malicious disfigurement; manslaughter; manufacture or possession of a weapon of mass destruction; mayhem; murder; robbery; sexual abuse in the first, second, and third degrees; use, dissemination, or detonation of a weapon of mass destruction; or an attempt or conspiracy to commit any of the foregoing offenses.
Page 365
142 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.501 Instruction 4.501 STALKING
ALTERNATIVE A
Applies to offenses committed on or after August 6, 2009:
The elements of stalking, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [himself/herself] [through one or more other persons] (a) [[followed] [monitored] [placed under surveillance] [threatened] [communicated to or about]] [name of complainant]; [or] (b) [[interfered with] [damaged] [took] [unlawfully entered] [insert description of real or personal property]] of [name of complainant]; [or] (c) [used [name of complainant's] personal identifying information]; 2. S/he did so [in person] [by [insert means]]; 3. S/he did so on two or more occasions; [where a single act is of a continuing nature, each 24-hour period is a separate occasion;]
4. S/he did so voluntarily and on purpose, and not by mistake or accident; [and] 5A. S/he did so with the intent to cause [name of complainant] to (a) [fear for his/her safety or the safety of another person] [or] (b) [feel seriously alarmed, disturbed, or frightened] [or] (c) [suffer emotional distress][.] [; or] [; and] 5B. S/he did so with the knowledge that it would cause [name of complainant] to (a) [fear for his/her safety or the safety of another person] [or] (b) [feel seriously alarmed, disturbed, or frightened] [or] (c) [suffer emotional distress][.] [; or] [; and] 5C. When s/he did so, s/he should have known that his/her conduct would cause a reasonable person in [name of complainant's] circumstances to (a) [fear for his/her safety or the safety of another person] [or] (b) [feel seriously alarmed, disturbed, or frightened] [or] (c) [suffer emotional distress][.] [; and] Where an aggravating circumstance is alleged: 6A. [Name of defendant] had been ordered by [the court] [a community supervision officer] to have no contact with [name of complainant] [or]. 6B. [Name of complainant] was less than 18 years of age and [Name of defendant] was at least four years older than him/her] [or]. 6C. [Name of defendant] caused (a) [Name of complainant] (b) [[Name] , a member of complainant's household]
(c) [[Name], a person whose safety was threatened by the conduct] (d) [[Name], a person who is financially responsible for [name of complainant]] to incur more than $2,500 in monetary costs, debts, or obligations as a result of the conduct]. The conduct on each occasion need not be the same as that on any other occasion.
[The term "communicated" means the use of oral or written language, photographs, pictures, signs, symbols, gestures, or other acts or objects that are intended to convey a message.] [The term "emotional distress" means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.] ALTERNATIVE B
Applies to offenses committed before August 6, 2009: 1. ELEMENTS The elements of stalking, each of which the government must prove beyond a reasonable doubt, are that: [A. Following: 1. [Name of defendant] followed [name of complainant]; 2. [Name of defendant] did so repeatedly and on more than one occasion; 3. Each time s/he followed [name of complainant], s/he did so voluntarily, and on purpose and not by mistake or accident; and 4. [Name of defendant] [intended to [cause [name of complainant] emotional distress] [or] [place [name of complainant] in reasonable fear of death or bodily injury] [or] [s/he consciously disregarded a known and substantial risk that his/her conduct would cause such emotional distress or place [name of complainant] in reasonable fear of death or bodily injury.] [B. Harassing: 1. [Name of defendant] engaged in a course of conduct, either in person, by telephone or in writing, involving acts directed at [name of complainant]; 2. S/he did each act voluntarily and on purpose and not by mistake or accident; 3. The acts were done repeatedly and on more than one occasion; 4. [Name of defendant's] actions caused [name of complainant] to be seriously alarmed, annoyed, frightened, or tormented; 5. [Name of defendant's] conduct would have caused a reasonable person to be seriously alarmed, annoyed, frightened, or tormented; 6. [Name of defendant] [intended to [cause [name of complainant] emotional distress] [or] [place [name of complainant] in reasonable fear of death or bodily injury] [or] [s/he consciously disregarded a known and substantial risk that his/her conduct would cause
such emotional distress or place [name of complainant] in reasonable fear of death or bodily injury.] 2. DEFINITIONS ["Emotional distress" means serious harm to a person's emotional well being, and may include reactions such as fear or alarm.] "Repeatedly" and "on more than one occasion" are similar in that they imply more than one time; however, they have different and distinct meanings. "Repeatedly" means that the acts occurred close enough in time so as to be reasonably related to each other and not simply isolated acts. "On more than occasion," on the other hand, means that the acts occurred far enough apart in time so as to be reasonably distinct and not part of one incident. In short, the acts must be close enough in time, but not too close. The law does not define the precise length of time between the acts such that they are both "repeated" and "on more than one occasion," as that will depend on the circumstances of each case; however, the government must prove both aspects of this element beyond reasonable doubt. ____________________________________ Comment: Alternative A of this instruction tracks the language of the Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189) and the emergency versions of this Act that went into effect initially on August 6, 2009 (Act 18-181 and B 18-466). The existing stalking statute was repealed. For conduct that was alleged to have occurred before August 6, 2009, the court should give Alternative B. For conduct alleged to have occurred on or after August 6, 2009, the court should use Alternative A. For greater clarity, the Committee changed the format of this instruction to list the alternatives rather than stringing them out in a sentence. Note that in a given case, more than one alternative may be charged and proved. If so, an "or" should be inserted between the alternatives. For example, you could combine 5A and 5B so that it would read.
(5) S/he did so either with the intent to cause or with the knowledge that it would cause [name of complainant] to fear for his/her safety or the safety of another person or to feel seriously alarmed, disturbed, or frightened. Similarly, you could combine 6A and 6C so that it would read.
(6A) [Name of defendant] had been ordered by [the court] [a community supervision officer] to have no contact with [name of complainant]; or (6B) [Name of defendant] caused [name of complainant] to incur more than $2,500 in monetary costs, debts, or obligations as a result of the conduct. With respect to means, they include, but are not limited to, the use of a telephone, mail, delivery service, e-mail, website, or other method of communication, or the use of electronic, mechanical, digital, or any other equipment, including: a camera, spycam, computer, spyware, microphone, audio or video recorder, global positioning system, electronic monitoring system, listening device, night-vision goggles, binoculars, telescope, or spyglass. There may be more than one means.
In many instructions, the Redbook substitutes the definition for the term defined. In this instruction, for the sake of clarity, we recommend giving the definitions of "communicating" and "emotional distress," if applicable at the end. Normally, whether there has been a "communication" should be obvious, but if necessary, the definition of "communicated" should be tailored to the facts of each case.
Page 370
143 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.510 Instruction 4.510 FORCED LABOR
D.C. Official Code 22-1832
The elements of forced labor, each of which the government must prove beyond a reasonable doubt, are that: A. COERCION 1. [Name of defendant] caused [name of complainant] to provide labor or services; 2. S/he did so knowingly and on purpose and not by mistake or accident; and 3. S/he did so by: (Choose one or more of the following) [a. Using force, threats of force, physical restraint, or threats of physical restraint against [name of complainant];] [b. Seriously harming or threatening to seriously harm [name of complainant];] [c. Abusing or threatening to abuse the law or legal process;] [d. Using fraud or deception;] [e. Using any scheme, plan, or pattern intended to cause [name of complainant] to believe
that if s/he did not perform labor or services, s/he [or another person] would suffer serious harm or physical restraint;] [f. Facilitating or controlling [name of complainant's] access to an addictive or controlled substance or restricting [name of complainant's] access to prescription medication;] [or] [g. Participating in conduct with the intent to cause [name of complainant] to believe that s/he was the property of a person or business and that would cause a reasonable person in [name of complainant's] circumstances to believe that s/he was the property of a person or business].
["Abusing or threatening to abuse the law or legal process" means the use of the law in any manner or for any purpose for which the law was not designed, to exert pressure on [name of complainant] to take some action or refrain from taking some action."] B. DEBT BONDAGE 1. [Name of defendant] caused [name of complainant] to [provide labor or services] [engage in commercial sex acts]; 2. S/he did so knowingly and on purpose and not by mistake or accident; 3. The [labor or services] [commercial sex acts] were for the purposes of satisfying a real or alleged debt; and 4. (Choose one or more of the following) [a. The amount of value of the labor, services, or commercial sex acts, as reasonably assessed, was not applied toward the liquidation of the debt;] [b. The length and nature of the labor, services, or commercial sex acts was not reasonably limited and defined;] [or] [c. The amount of the debt did not reasonably reflect the value of the items or services for which the debt was incurred.]
["Commercial sex act" means any sexual act or sexual contact on account of which anything of value is given to, promised, or received by any person.] ____________________________________ Comment: The Prohibition Against Human Trafficking Amendment Act of 2010 went into effect on October 23, 2010. This instruction, which was added in the 2011 release, tracks the language of the statute.
Page 372
144 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.511 Instruction 4.511 TRAFFICKING IN LABOR OR COMMERCIAL SEX ACTS
D.C. Official Code 22-1833 A. COERCION The elements of trafficking in [labor] [or] [commercial sex acts], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [recruited] [enticed] [harbored] [transported] [provided] [obtained] [maintained] [name of complainant]; and 2. When s/he did so, s/he knew or was aware of, but consciously and carelessly ignored, facts and circumstances that clearly indicated that (Choose one or more of the following) [a. force, threats of force, physical restraint, or threats of physical restraint] [b. serious harm or threats of serious harm] [c. the abuse or threatened abuse of the law or legal process] [d. fraud or deception] [e. any scheme, plan, or pattern intended to cause [name of complainant] to believe that if s/he did not perform labor or services, s/he [or another person] would suffer serious harm
or physical restraint] [f. conduct with the intent to cause [name of complainant] to believe that he or she is the property of another person or business and that would cause a reasonable person in [name of complainant's] circumstances to believe that he or she is the property of another person or business] [g. [name of complainant's] access to [an addictive or controlled substance was facilitated or controlled] [prescription medication was restricted]] [was] [were] [or would be] used to cause [name of complainant] [to provide labor or services] [to engage in a commercial sex act].
["Abuse or threatened abuse the law or legal process" means the use of the law in any manner or for any purpose for which the law was not designed, to exert pressure on another person to take some action or refrain from taking some action.] ["Commercial sex act" means any sexual act or sexual contact on account of which or for which anything of value is given to, promised to, or received by any person.] B. DEBT BONDAGE The elements of trafficking in [labor] [or] [commercial sex acts], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [recruited] [enticed] [harbored] [transported] [provided] [obtained] [maintained] [name of complainant]; and 2. When s/he did so, s/he knew or was aware of, but consciously and carelessly ignored, facts and circumstances that clearly indicated that a. [Name of complainant] would be caused to [provide labor or services] [engage in commercial sex acts]; b. The [labor or services] [commercial sex acts] were for the purposes of satisfying a real or alleged debt; and c. (Choose one or more of the following) [i. The amount of value of the labor, services, or commercial sex acts, as reasonably assessed, was not applied toward the liquidation of the debt;] [ii. The length and nature of the labor, services, or commercial sex acts was not reasonably limited and defined;] [or] [iii. The amount of the debt did not reasonably reflect the value of the items or services for which the debt was incurred.]
["Commercial sex act" means any sexual act or sexual contact on account of which anything of value is given to,
promised, or received by any person.] ____________________________________ Comment: The Prohibition Against Human Trafficking Amendment Act of 2010 went into effect on October 23, 2010. This instruction, which was added in the 2011 release, basically tracks the language of the statute. The statute uses the phrase "reckless disregard of the fact." "Reckless disregard" is not defined in the statute and there is no case law in this jurisdiction defining it. The legislative history of the Act states that "This language will enable the prosecution of individuals or businesses who turn a blind eye to human trafficking without requiring proof of actual knowledge that is often difficult to obtain." Pending further statutory or case law guidance, the Committee chose to insert the definition of "reckless disregard of the fact" from an 11th Circuit pattern jury instruction.
Page 375
145 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.512 Instruction 4.512 SEX TRAFFICKING OF A CHILD
The elements of sex trafficking of a child, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [recruited] [enticed] [harbored] [transported] [provided] [obtained] [maintained] [name of complainant]; 2. S/he did so knowing that [name of complainant] would be caused to engage in a sexual act or sexual contact for which anything of value was given to, promised, or received by any person; 3. At the time, [name of complainant] was under 18 years of age; and 4. When [name of defendant] did so, s/he knew that [name of complainant] was under 18 years of age, or was aware of, but consciously and carelessly ignored, facts and circumstances that clearly indicated that [name of complainant] was under 18 years of age. ____________________________________ Comment: The Prohibition Against Human Trafficking Amendment Act of 2010 went into effect on October 23, 2010. This instruction, which was added in the 2011 release, basically tracks the language of the statute. The statute uses the phrase "reckless disregard of the fact." "Reckless disregard" is not defined in the statute and there is no case law in this jurisdiction defining it. The legislative history of the Act states that
"This language will enable the prosecution of individuals or businesses who turn a blind eye to human trafficking without requiring proof of actual knowledge that is often difficult to obtain." Pending further statutory or case law guidance, the Committee chose to insert the definition of "reckless disregard of the fact" from an 11[th] Circuit pattern jury instruction.
Page 377
146 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.513 Instruction 4.513 UNLAWFUL CONDUCT WITH DOCUMENTS IN FURTHERANCE OF HUMAN TRAFFICKING
The elements of unlawful conduct with respect to documents in furtherance of human trafficking, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [destroyed] [concealed] [removed] [confiscated] [possessed] [name of complainant's] [insert name of document]; 2. S/he did so knowingly; 3. S/he did so without lawful authority; 4. S/he did so to prevent or restrict or to attempt to prevent or restrict [name of complainant's] liberty to move or travel; and 5. S/he did so in order to maintain [name of complainant's] labor or services. ____________________________________ Comment: The Prohibition Against Human Trafficking Amendment Act of 2010 went into effect on October 23, 2010. This instruction, which was added in the 2011 release, tracks the language of the statute.
Page 378
147 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses A. Crimes Against Persons 5. Other Personal Offenses 1-IV Criminal Jury Instructions for DC Instruction 4.514 Instruction 4.514 BENEFITTING FROM HUMAN TRAFFICKING
The elements of benefitting from human trafficking, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] participated in a group of two or more individuals associated in fact, whether or not a legal entity; 2. [Name of defendant] did so knowingly and on purpose and not by mistake or accident; 3. The group engaged in [insert name of offense]; 4. [Name of defendant] knew or was aware of, but consciously and carelessly ignored, facts and circumstances that clearly indicated that the group engaged in [insert name of offense]; and 5. [Name of defendant] knowingly benefitted [financially] [by receiving [insert thing of value]] from his participation in the group.
[I have already instructed you on the elements of [insert name of offense.]] [The elements of [insert elements of the offense].] ____________________________________ Comment:
The Prohibition Against Human Trafficking Amendment Act of 2010 went into effect on October 23, 2010. This instruction, which was added in the 2011 release, basically tracks the language of the statute. The statute uses the phrase "reckless disregard of the fact." "Reckless disregard" is not defined in the statute and there is no case law in this jurisdiction defining it. The legislative history of the Act states that "This language will enable the prosecution of individuals or businesses who turn a blind eye to human trafficking without requiring proof of actual knowledge that is often difficult to obtain." Pending further statutory or case law guidance, the Committee chose to insert the definition of "reckless disregard of the fact" from an 11[th] Circuit pattern jury instruction.
Page 380
148 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 1. Arson and Burglary 1-V Criminal Jury Instructions for DC Instruction 5.100 Instruction 5.100 ARSON
The elements of the offense of arson, each of the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] burned or attempted to burn a building; 2. The building was the property, in whole or in part, of someone other than [name of defendant]; and 3. S/he set fire to the building voluntarily and on purpose, not by mistake or accident; and 4. [Name of defendant] acted [with the intent to kill or seriously injure another person] [with the intent to threaten the security of anyone who lived in or occupied that building or other property] [or] [in conscious disregard of a known and substantial risk that his/her actions would endanger human life or threaten the security of anyone who lived in or occupied that building or other property]; and 5. [Name of defendant] acted without mitigation.] [Mitigating circumstances exist where a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of another that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For a provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply
Page 381 1-V Criminal Jury Instructions for DC Instruction 5.100
because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."]] [If the building was the property of someone other than the defendant, it does not matter that the defendant was a tenant in lawful possession of all or part of the building.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.]____________________________________ Comment: The offense of arson requires proof of malice. D.C. Official Code 22-301 (2001). To prove malice, all that is required is proof that the injury was the result of more than negligence or accident, and that the offender either intended the actual harm or acted in " 'conscious disregard of a known and substantial risk of harm that the statute was intended to prevent.' " Phenis v. U.S., 909 A.2d 138, 161 (D.C. 2006) . See also Thomas v. U.S., 557 A.2d 1296, 1299 (D.C. 1989) (malice imports either intent to cause harm produced or harm of same general nature or wanton and willful act with awareness of plain and strong likelihood that such harm may result). The word "malice," together with concepts associated with malice such as acting with a "bad or evil purpose" or with a "wicked heart," have been eliminated as unnecessary and potentially confusing. See Phenis v. U.S., 909 A.2d 138, 160-61 (D.C. 2006) (no error in trial court's omission of the word "maliciously' " from the arson instruction); Comber v. U.S., 584 A.2d 26, 42 n. 18 (1990) (en banc); Thomas, 557 A.2d at 1305 n. 17 ; Charles v. U.S., 371 A.2d 404, 411 (D.C. 1977) . In Logan v. U.S., 460 A.2d 34, 38 (D.C. 1983) , the D.C. Court of Appeals stated that arson "involves conduct endangering human life and offending the security of habitation or occupancy." See also Phenis, 909 A.2d at 163 . The fourth element expresses the malice element in terms of that interest. Parts of element four have been bracketed. The court may select among them as appropriate or give all of them depending on the facts of a particular case. The fifth element of the instruction expresses the mitigation aspect of malice. Comber observes that malice also includes the absence of justification, excuse or mitigation. 584 A.2d at 40-41 . It also makes clear, however, that this aspect of malice requires instruction "only where there is some evidence of one or more of these circumstances in the case", generated either in the government or defense case. Id. at 41 n. 17 . Where there is such evidence, however, the instruction must be given because the government needs to prove the absence of justification, excuse or mitigation. The Committee has included only an instruction on mitigation, which involves heat of passion caused by adequate provocation. See Brown v. U.S., 584 A.2d 537 (D.C. 1990) . Brown held that where sufficient evidence of adequate provocation is introduced, the defense is entitled to an instruction that places on the government the burden of proof beyond a reasonable doubt that the defendant acted without adequate provocation. Under Brown, there are no categories of "adequate provocation" that the defense must satisfy; all it must do is present sufficient evidence of conduct that " 'would cause an ordinary, reasonable person to lose his or her self-control.' " 584 A.2d at 540-43 . The bracketed fifth element, together with the bracketed explanatory paragraph drawn from Brown, 584 A.2d at 543 , should be used whenever sufficient evidence of provocation is presented. For further comment on malice, see comments to No. 4.211, Homicide--Second Degree Murder and Voluntary Manslaughter (Self-Defense and Heat of Passion Caused by Adequate Provocation), and No.
5.400, Malicious Destruction of Property. With respect to the element that the building burned or attempted to be burned was the property of someone other than the defendant, see Chaconas v. U.S., 326 A.2d 792, 797 (D.C. 1974) . The bracketed language in the next to last paragraph should be inserted where the evidence indicates that the defendant may have been a tenant of the burned building. Posey v.U.S., 26 App. D.C. 302 (D.C. 1905) . The offenses of malicious burning and malicious destruction of property are not lesser included offenses of arson. Logan, 460 A.2d at 36-38 (malicious destruction of property); In re W.B.W., Jr., 397 A.2d 143 (D.C. 1979) (malicious burning). The last bracketed sentence of the instruction applies when the victim is a minor or a senior citizen. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen's enhancement when the victim was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. See 22-3611. It went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006. It remained in effect under various Emergency Acts (Act 16-490, Act 17-10 and Act 17-25). The law was not in effect for the following two periods--from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5 p.m. The permanent law went into effect on April 24, 2007. See also Logan v. U.S., 460 A.2d 34, 38 (D.C. 1983) (finding that malicious destruction of property was not a lesser included offense of arson in part because the offenses protect different interests, with malicious destruction of property protecting "against injury or harm merely to property."). Cross references: No. 3.101, Proof of State of Mind; No. 5.400, Malicious Destruction of Property; No. 8.103, Sentencing Enhancements Based on Age.
Page 383
149 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 1. Arson and Burglary 1-V Criminal Jury Instructions for DC Instruction 5.101 Instruction 5.101 BURGLARY
D.C. Official Code 22-801 (2007) A. FIRST DEGREE--ELEMENTS The elements of the offense of burglary in the first degree, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] entered the [dwelling of another] [room of another that is used for sleeping]; 2. At the time of the entry, a person was in any part of that [dwelling] [room]; and 3. At the time of the entry, the [name of defendant] intended to [commit [insert offense]]. B. SECOND DEGREE--ELEMENTS The elements of the offense of burglary in the second degree, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] entered the [dwelling or room] [building] of another; and 2. At the time of the entry [name of defendant] intended to commit [insert offense]. C. COMMISSION OF OFFENSE NOT REQUIRED; DETERMINATION OF INTENT
It is not necessary that the defendant have actually committed the offense s/he intended to commit when s/he entered the premises. It is sufficient if the government has proven beyond a reasonable doubt that at the time [name of defendant] entered the premises, s/he intended to commit [insert offense]. In determining the intent with which [name of defendant] allegedly entered, you may consider all the facts and circumstances in evidence, including the manner of entry and the acts and events which occurred in the premises after the alleged entry. [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancement Based on Age, No. 8.103.] ____________________________________ Comment: With reference to both first and second degree burglary, the jury is instructed that in order to convict the defendant, it must find beyond a reasonable doubt, inter alia, defendant's specific intent at the time of entry to commit a particular offense. See U.S. v. Thomas, 444 F.2d 919, 921-22, 144 U.S. App. D.C. 44, 46-47 (1971) and U.S. v. Seegers, 445 F.2d 232, 233, 144 U.S. App. D.C. 162, 163 (1971) (specific intent required for burglary must be charged in indictment with sufficient particularity so as to designate the specific crime defendant intended to commit at the time of his entry). The specific intent requirement of the statute that has been emphasized in a number of decisions. See, e.g., U.S. v. Melton, 160 U.S. App. D.C. 252, 254-55, 491 F.2d 45, 48-49 (1973) (requiring that in addition to nighttime entry circumstantial evidence of specific intent such as flight, possession of stolen goods or an assault be present to sustain burglary conviction). Compare Massey v. U.S., 320 A.2d 296, 300 (D.C. 1974) (jury permitted to infer specific intent from unexplained forcible nighttime entry into premises) and Washington v. U.S., 263 F.2d 742, 745, 105 U.S. App. D.C. 58, 61 (1959) (defendant's unexplained presence in a darkened house near midnight sufficient to show specific intent). As to proper instruction where defendant is charged with burglary and receiving stolen property, see Franklin v. U.S., 382 A.2d 20 (D.C. 1978) (where defendants were charged with and convicted of second degree burglary, grand larceny, and receiving stolen property, failure to instruct jury that defendants could not be convicted of receiving count in addition to burglary and larceny counts constituted reversible error under Milanovich v. U.S., 365 U.S. 551 (1961) , and required retrial). The second element of burglary in the first degree states that the jury find that a person was "in" the dwelling or room at the time of entry. The instruction is in conformity with the statute, which provides in relevant part: "if any person is in any part of such dwelling ..." D.C. Official Code 22-801 (2001). The language is also consistent with Edelen v. U.S., 560 A.2d 527, 529 and n. 9 (D.C. 1989) (court declines to construe the word "in" to mean "occupy"). The last bracketed sentence of the instruction applies when the victim is a minor or a senior citizen. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen's enhancement when the victim was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. That Act went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency and permanent legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. See 22-3611. Requisite intent As to requisite intent in burglary offense, see also Bowman v. U.S., 652 A.2d 64 (D.C. 1994) (defendant's statements combined with the violent manner of his entry, his generally aggressive behavior both before
and after he entered, and his failure to exhibit any purpose for being in the house, together with other circumstances, would permit a jury to find that the defendant entered the victim's home with the intent to commit an assault); McKinnon v. U.S., 644 A.2d 438 (D.C. 1994) (use of a ruse to coax the victim to go back to her apartment with him, locking the apartment door, and carrying a concealed weapon provide more than sufficient basis for finding element of intent); Hawthorne v. U.S., 476 A.2d 164, 168 (D.C. 1984) (evidence that victim was murdered in his apartment, that the apartment was ransacked and that defendant was in possession of items taken from apartment sufficient to establish intent to steal); Parker v. U.S., 449 A.2d 1076, 1077 (D.C. 1982) (evidence that the defendant entered two hotel rooms and that thefts occurred in both rooms sufficient to establish the requisite intent at the time of entry despite fact that defendant was authorized to enter rooms); U.S. v. Kearney, 498 F.2d 61, 162 U.S. App. D.C. 110 (1974) (where defendant entered premises under pretext and robbed occupants, he possessed criminal intent required for burglary); U.S. v. Martin, 475 F.2d 943, 154 U.S. App. D.C. 359 (1973) (where specific intent is required and defense of intoxication is interjected, burden rests with government to establish that at the time the offense was committed, the defendant had capacity to form required specific intent); Johnson v. U.S., 293 A.2d 269 (D.C. 1972) (burglary conviction sustained where defendant was found in early morning hours hiding with gloves, a screwdriver and flashlight near the site of a recently reported entry into a home); U.S. v. Cooper, 473 F.2d 95, 153 U.S. App. D.C. 384 (1972) (intent to commit criminal offense mU.S.t have been formed at time of entry into premises or before); Hebble v. U.S., 257 A.2d 483 (D.C. 1969) (presence of defendant in a warehouse in early morning hours among open desk drawers, scattered papers, and two office machines on the floor sufficient to support finding of specific intent); U.S. v. Frank, 225 F. Supp. 573 (D.D.C. 1964) (intent to violate Federal Communications Act insufficient to support burglary prosecution); Mills v. U.S., 228 F.2d 645, 97 U.S. App. D.C. 131 (1955) (where defendant interjects defense of consent, he is entitled to instruction that if he took the property with the consent of one he believed to be its owner, he had no intent to steal). Need not prove actual owner In Douglas v. U.S., 570 A.2d 772, 775-76 (D.C. 1990) , the court held that the government need not allege or prove who owned the premises burglarized. Rather, the government need only prove that the property was owned by someone other than the defendant. To prove first-degree burglary, the government need only establish that the complainant occupied and used the residential dwelling, even though the lease for the apartment was solely in the defendant's name. Bodrick v. U.S., 892 A.2d 1116, 1118-21 (D.C. 2006) . Sufficiency of the evidence With reference to the sufficiency of evidence to sustain a burglary conviction, see generally Edelen v. U.S., 560 A.2d 527, 529-30 (D.C. 1989) (rape victim who entered apartment just before defendant entered was "in" the dwelling; entry established where any part of defendant's body penetrated edifice or where any instrument used by defendant to gain entry penetrated edifice); Marshall v. U.S., 623 A.2d 551 (D.C. 1992) (evidence sufficient where defendant armed with a boot entered apartment and assaulted decedent); Williams v. U.S., 549 A.2d 328, 333 (D.C. 1988) (unlawful entry insufficient to prove intent to steal); Warrick v. U.S., 528 A.2d 438 (D.C. 1987) (evidence that defendant entered armed with a dangerous weapon and, while attempting to steal a television, assaulted inhabitant, insufficient to establish intent to commit assault); Shelton v. U.S., 505 A.2d 767, 770 (D.C. 1986) (entry without permission does not itself establish intent to steal); Freeman v. U.S., 495 A.2d 1183, 1186 (D.C. 1985) (testimony of two eyewitnesses sufficient to sustain conviction of attempted second degree burglary given defense of mere preparation); Malloy v. U.S., 483 A.2d 678, 680 (D.C. 1984) (evidence sufficient to sustain conviction of second degree burglary where single witness observed defendants carrying victim's property from apartment, witness knew defendants and lighting was good); Wheeler v. U.S., 470
A.2d 761, 763-64 (D.C. 1983) (evidence sufficient to sustain conviction of first degree burglary where victim saw defendant standing in neighbor's yard and shortly thereafter heard sound of breaking glass in her basement and police found defendant in victim's house); Baptist v. U.S., 466 A.2d 452, 459 (D.C. 1983) (evidence sufficient to sustain conviction of attempted second degree burglary where officer saw defendant break lock on freight car and then enter); Dyson v. U.S., 450 A.2d 432, 437 (D.C. 1982) (evidence sufficient to support conviction of second degree burglary where defendant matched general description of man observed acting suspiciously and was found shortly after burglary crouched in stairwell of adjoining house); Christian v. U.S., 394 A.2d 1, 33 (D.C. 1978) ; (evidence that is primarily circumstantial is sufficient to sustain conviction of attempted first degree burglary while armed); In re M.M.J., 341 A.2d 421 (D.C. 1975) (presence of defendant's fingerprints on transom over inside door of burglarized house sufficient to sustain burglary conviction where defendant did not have innocent access to area where print was found and offered no explanation of how print got there); Forsyth v. U.S., 318 A.2d 292 (D.C. 1974) (evidence sufficient to sustain burglary conviction of defendant who was apprehended after fleeing from site of burglarized premises, offered inconsistent explanation of his conduct, and was with co-defendant whose car was found near scene); White v. U.S., 300 A.2d 716 (D.C. 1973) (mere fact of defendant's possession of recently stolen goods belonging to a business did not establish burglary where there was no evidence of breaking or of defendant being present in building). Compare U.S. v. Joyner, 492 F.2d 650, 160 U.S. App. D.C. 384 (1974) (where burglary conviction was sustained on basis of defendant's possession of recently stolen property and independent proof of an entry of the building from which property was stolen); Franklin v. U.S., 293 A.2d 278 (D.C. 1972) (where defendants were found in department store dressed in "stock room jackets" of kind worn by store personnel, carrying shopping bags of kind used by professional shoplifters and walking in an employee area of the store, sufficient evidence to support conviction of second degree burglary, including intent to commit crime at time of store entry); U.S. v. Cary, 470 F.2d 469, 152 U.S. App. D.C. 321 (1972) (evidence of defendant's fingerprints on both sides of pane of glass removed from back door to apartment sufficient to sustain burglary conviction); Valentino v. U.S., 296 A.2d 173 (D.C. 1972) (evidence sufficient to support attempted burglary conviction where defendant found in building adjoining burglarized premises and common wall had been damaged to permit entry). Miscellaneous Issues See also Bennett v. U.S., 620 A.2d 1342 (D.C. 1993) (burglary, premeditated murder and robbery do not merge); U.S. v. Kearney, 498 F.2d 61, 162 U.S. App. D.C. 110 (1974) (one may be guilty of burglary and yet not be guilty of unlawful entry); Stewart v. U.S., 490 A.2d 619, 626 (D.C. 1985) (burglary convictions merge where both predicated on a single transaction); Swinson v. U.S., 483 A.2d 1160, 1163 (D.C. 1984) (metro station is a "building" for purposes of D.C. Code 22-1801(b)); Williams v. U.S., 483 A.2d 292, 294 n. 2 (D.C. 1984) (convictions for felony murder and underlying armed burglary merge); Ray v. United States, 472 A.2d 854, 857-58 (D.C. 1984) (robbery and burglary counts should not have been joined where offenses were not part of one series of acts); Thorne v. U.S., 471 A.2d 247, 248 (D.C. 1983) (burglary convictions merge for purposes of sentencing where convictions arose from single entry); Adams v. U.S., 466 A.2d 439, 446 (D.C. 1983) (burglary and attempted robbery convictions merge into felony murder conviction for purposes of sentencing); Roane v. U.S., 432 A.2d 1218, 1220 (D.C. 1981) (defendant was entitled to requested instruction on crime of unlawful entry as a lesser included offense of second degree burglary); Franey v. U.S., 382 A.2d 1019, 1021 (D.C. 1978) (first degree burglary is a lesser included offense of first degree burglary while armed); Blango v. U.S., 373 A.2d 885 (D.C. 1977) (defendant properly convicted of both felony murder and first degree burglary since these are separate crimes offending separate societal interests, and therefore doctrine of merger is not applicable); U.S. v. Barlow, 470 F.2d 1245, 152 U.S. App. D.C. 336 (1972) (where defendant was not present at building when actual theft of equipment occurred, he could be convicted of theft of government property and second degree burglary as an aider and abettor); U.S. v. Whitaker, 447 F.2d
314, 144 U.S. App. D.C. 344 (1971) (where evidence at trial establishes a lesser offense, defendant is entitled to instruction on lesser included offense even though, technically, all theoretical elements of the lesser offense of unlawful entry are not necessarily found in the elements of the offense of burglary); Henderson v. U.S., 172 F.2d 289, 84 U.S. App. D.C. 295 (1949) (where porch entered by defendant was separated from apartment by a door and windows but surrounded by walls on three sides, entry of porch constituted a burglary); Lee v. United States, 37 App. D.C. 442 (1911 (actual commission of offense which was intended at time of entry is not necessary to complete crime of burglary). Lesser included offenses: No. 7.101, Attempt; No. 5.401, Unlawful Entry (not a lesser included when defendant entered the property with permission, see U.S. v. Kearney, 498 F.2d 61, 162 U.S. App. D.C. 110 (1974) ; Burglary in Second Degree Lesser Included Offense of Burglary in the First Degree. Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 8.101, Armed Offenses--Added Element; No. 8.103, Sentencing Enhancements Based on Age.
Page 388
150 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 2. Fraud and Criminal Writing 1-V Criminal Jury Instructions for DC Instruction 5.200 Instruction 5.200 FRAUD
The elements of fraud in the [first] [second] degree, each of which the government must prove beyond a reasonable doubt, are that: A. FIRST DEGREE FRAUD 1. [Name of defendant] engaged in a scheme or systematic course of conduct; 2. S/he intended to deceive or cheat someone or obtain property of another by means of a false representation or promise; 3. As a result of that scheme or systematic course of conduct, [name of defendant] obtained property of another or caused another to lose property; and 4. The property lost or obtained had [a value of [$250][$1000] or more] [some value]. B. SECOND DEGREE FRAUD 1. [Name of defendant] engaged in a scheme or systematic course of conduct; 2. S/he intended to deceive or cheat someone or obtain property of another by means of a false representation or promise; and
3. The property that was the object of the scheme or systematic course of conduct had [a value of [$250][$1000] or more] [some value]. C. DEFINITIONS ["Value" with respect to a credit card, check, or other written instrument means the amount of money, credit, debt, or other tangible or intangible property or services that has been or can be obtained through its use, or the amount promised or paid by the credit card, check, or other written instrument.] A scheme is any pattern of behavior calculated to deceive persons of ordinary prudence and comprehension. A systematic course of conduct is a pattern of activity. It need not exist over an extended period of time, but there must be more than an isolated act. It is not necessary for the government to prove that [name of defendant] intended to deceive or cheat a particular person. It is sufficient if you determine that s/he had an intent to deceive or cheat any person. A false representation or promise is any statement that concerns a material or important fact or a material or important aspect of the matter in question. The term includes an actual, direct false statement, a half-truth, and a knowing concealment of a fact that is material or important to the matter in question. [Name of defendant] must have known that the statement or assertion was untrue when he/she made or used it, or have made or used it with reckless indifference as to whether it was, in fact, true or false. [If the statement or assertion was a false promise as to future performance that [name of defendant] did not intend to perform or knew would not be performed, you may not infer his/her intent or knowledge merely from evidence that s/he did not perform one promise. Examine all the circumstances in determining [name of defendant's] intent or knowledge.] A material fact is a fact that would be important to a reasonable person in making a decision about a particular matter. [To show that the property was lost or obtained as a result of the scheme or systematic court of conduct the government must prove that, but for [name of defendant's] scheme or systematic course of conduct, the property would not have been lost or obtained.] "Property of another" means anything owned by someone other than the defendant. [Insert further definition of Property of Another from No. 3.106, Property or Property of Another--Defined, where necessary or useful under the circumstances of the case.] [Insert No. 3.101, Proof of State of Mind.] [Insert No. 3.105, Proof of Value, if necessary.] [If the victim was 60 years of age or older, insert Crimes Against Senior Citizens, No. 8.103 (B).] ____________________________________ Comment: The Criminal Code Amendment Act of 2010, which went into effect as emergency legislation on January 18, 2011, changed the felony threshold to "$1,000 or more." The 2011 release incorporated that change. The Committee has left "[$250]" in the instruction for offenses which occurred before that date. The 2010 release added a bracketed paragraph with a definition of value with respect to a credit card, check, or other written instruments in accordance with the Crime Bill Emergency Amendment Act, which applies to offenses that occurred on and after June 29, 2009, and which was later incorporated into the
Omnibus Public Safety and Justice Amendment Act of 2009. D.C. Official Code 22-3201(7). The Act also expanded the term "property" specifically to include credit, debt, and government-issued licenses, permits, or benefits. D.C. Official Code 22-3201(3). The term "person" now means, in addition to living or dead individuals, legal entities including, but not limited to, trusts, estates, partnerships, companies, corporations, associations, organizations, unions, government departments, agencies, or instrumentalities. D.C. Official Code 22-3201(2A). These definitions can be added as appropriate. Before the enactment of the Theft and White Collar Crimes Act of 1982, the District of Columbia Code did not contain a general fraud provision. Consumer and other frauds were prosecuted under various theft-related offense such as false pretenses, larceny after trust, and larceny by trick. This fraud offense is intended "primarily to combat consumer fraud, although the provisions cover other types of fraud as well. The gravamen of the offense of fraud which distinguishes it from theft, is that fraud involves a scheme or systematic course of conduct to defraud or obtain the property of another." The District of Columbia Theft and White Collar Crimes Act of 1982, Report of the Committee on the Judiciary (June 1, 1982) at 14. The degrees of fraud differ in that first degree fraud requires reliance, i.e., that property be gained or lost as a result of the fraud, whereas second degree fraud does not. Felony penalties attach only if the value of the property involved was $1,000 or more. The bracketed portions of each instruction should be chosen depending on the whether the information or indictment charges that the value involved was $1,000 or more. The models for the fraud statutes were the federal mail fraud statute, 18 U.S.C. 1341 (1970), and the New York Fraud Statute, N.Y. Penal Law 190.65 and 190.60 (McKinney Supp. 1980), which itself was derived from the federal statute. See The District of Columbia Theft and White Collar Crimes Act of 1982, Extension of Comments on Bill No. 4-133 (Remarks of Councilmember Clarke) (July 20, 1982) at 41; People v. Block & Kleaver, Inc., 103 Misc. 2d 758, 427 N.Y.S.2d 133, 136 (1980) . The explanatory material in this instruction is therefore based on interpretations of these statutes, as well as on the legislative history of the D.C. Act. The definition of "scheme" is from Block & Kleaver, 427 N.Y.S. 2d at 138 . The explanation of "systematic course of conduct" is from the Extension of Comments on Bill No. 4-133, supra, at 41-42. To prove the intent element the government must prove either an intent to obtain property by means of a misrepresentation or an intent to defraud, which does not necessarily involve a misrepresentation of fact. See U.S. v. Brien, 617 F.2d 299, 311 (1st Cir. 1980) (sanctioning instruction on scheme to defraud). In the Fifth Edition, the Committee substituted "intended to deceive or cheat" in place of "intent to defraud" in an effort to simplify and clarify the language. This language is taken substantially from 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 16.07 (5th ed. 2000). The definition of "false or fraudulent pretenses, representations, or promises" is taken from 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 47.13 (5th ed. 2000). A showing of reckless indifference for the truth will support a charge of fraud. See U.S. v. Frick, 588 F.2d 531 (5th Cir. 1979) ; U.S. v. Amrep Corp., 560 F.2d 539 (2d Cir. 1977) ; U.S. v. Love, 535 F.2d 1152 (9th Cir. 1976) . The bracketed explanatory paragraph on reliance is based on Gilmore v. U.S., 273 F.2d 79, 82, 106 U.S. App. D.C. 344, 347 (1959) ; Ciullo v. U.S., 325 F.2d 227, 229, 117 U.S. App. D.C. 31, 33 (1963) ; and U.S. v. Stamp, 458 F.2d 759, 764 (D.C. Cir. 1971) (in false pretenses charge, conduct of defendant need not be sole or primary cause of loss of property, but can be contributing or "but for" cause).
As with other instructions on offenses in the Theft and White Collar Crime Act, the Committee recommends that any definition of "property" and "property of another," other than to define property as "anything of value" be used only where the circumstances call for an explanation. The court should select the explanation that best fits the circumstances. Where the value of the property obtained is alleged to be [$1,000] [$250] or more, the court will need to instruct the jurors that they must find beyond a reasonable doubt a value of [$1,000] [$250] in order to establish the predicate for the felony sentence allowed by D.C. Official Code 22-3223(d)(1) (2001). White v. U.S., 613 A.2d 869 (D.C. 1992) (en banc). Where the instruction is given, the Committee recommends that the instruction on proof of value, No. 3.105, be given. With respect to proof of value, D.C. Official Code 22-3202 (2001) allows the fact-finder to aggregate amounts received or lost as a result of the wrongful conduct, and the jury should be so instructed if necessary. Instruction 8.103 (B) should be included when the government alleges that the complainant was a senior citizen at the time of the offense. See D.C. Official Code 22-3601 (2001). Cross references: No. 3.101, Proof of State of Mind; No. 3.105, Proof of Value; No. 3.106, Property or Property of Another--Defined; No. 5.201, Credit Card Fraud; No. 5.300, Theft; No. 8.103, Sentencing Enhancements Based on Age.
Page 392
151 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 2. Fraud and Criminal Writing 1-V Criminal Jury Instructions for DC Instruction 5.201 Instruction 5.201 CREDIT CARD FRAUD
ALTERNATIVE A
Applies to offenses committed on and after June 29, 2009: The elements of the offense of credit card fraud, each of which the government must prove beyond a reasonable doubt, are that: 1. [[Name of defendant] without the consent of the person to whom it had been issued, used a credit card, or the number or description of a credit card, which had been issued to another person]; [[Name of defendant ] used a credit card, or the number or description of a credit card, which had been revoked or canceled]; [[Name of defendant ] used a falsified, mutilated, or altered credit card, or number or description of a credit card]; [[Name of defendant] represented that s/he was the holder of a credit card that had not in fact been issued]; [Name of defendant], used for his/her own purposes [a credit card] [the number on or description of a credit card] that had been [issued] [provided] to him/her [by] [at the request of] [name of complainant]
[name of defendant's] employer for the employer's purposes. 2. S/he did so voluntarily and on purpose, not by mistake or accident; 3. S/he did so intending to deceive or cheat another in order to gain some advantage or benefit for himself/herself or someone else; 4. As a result, s/he obtained or paid for property or services of another; and 5. The property had [a value of $1000 or more] [some value]. "Value" with respect to a credit card means the amount of money, credit, debt, or other tangible or intangible property or services that has been or can be obtained through its use, or the amount promised or paid by the credit card. ALTERNATIVE B
Applies to offenses committed before June 29, 2009: The elements of the offense of credit card fraud, each of which the government must prove beyond a reasonable doubt, are that: 1. [[Name of defendant] without the consent of the person to whom it had been issued, used a credit card, or the number or description of a credit card, which had been issued to another person]; [[Name of defendant ] used a credit card, or the number or description of a credit card, which had been revoked or canceled]; [[Name of defendant ] used a falsified, mutilated, or altered credit card, or number or description of a credit card]; [[Name of defendant] represented that s/he was the holder of a credit card that had not in fact been issued]; 2. S/he did so voluntarily and on purpose, not by mistake or accident; 3. S/he did so intending to deceive or cheat another in order to gain some advantage or benefit for himself/herself or someone else; 4. As a result, s/he obtained property of another; and 5. The property had [a value of $250 or more] [some value]. C. DEFINITIONS
[A credit card is any instrument or device, whether known as a credit card plate, debit card, or by any other name, issued for use of the cardholder in obtaining or paying for property or services.] [A credit card is deemed canceled or revoked when notice in writing of the cancellation or revocation has been received
by the named holder as shown on the credit card.] It is not necessary for the government to prove that [Name of defendant ] intended to deceive or cheat a particular person. It is sufficient if you determine that s/he had an intent to deceive or cheat any person. "Property of another" means anything of value owned by someone other than the defendant. [Insert further definition of "Property of Another" from No. 3.106, Property or Property of Another--Defined, where necessary or useful under the circumstances of the case.] [Insert No. 3.101, Proof of State of Mind.] [Insert No. 3.105, Proof of Value, if necessary.] ____________________________________ Comment: The 2010 release amended the instruction to account for the Crime Bill Emergency Amendment Act, which applies to offenses that occurred on and after June 29, 2009, and which was later incorporated into the Omnibus Public Safety Amendment Act of 2009. The last bracketed paragraph in the first element of Alternative A adds the misuse of a company credit card by an employee for his or her personal expenses. D.C. Official Code 22-3223(b)(5). The bracketed amount in the fifth element of Alternative A changes the threshold between a misdemeanor and a felony to $1000. D.C. Official Code 22-3223(d)(2). The last paragraph in Alternative A adds the definition of the value of a credit card as the amount that has been or can be obtained through its use. D.C. Official Code 22-3201(7). In a new Part C, the definition of credit card was amended to include paying for property or services. The term "property" has been expanded to specifically include credit, debt, and a government-issued license, permit, or benefit. D.C. Official Code 22-3201(3). The term "person" now means, in addition to living or dead individuals, legal entities including, but not limited to, trusts, estates, partnerships, companies, corporations, associations, organizations, unions, government departments, agencies, or instrumentalities. D.C. Official Code 22-3201(2A). In appropriate cases, these definitions can be added in Part C. The new law also expanded the jurisdictional bases for charging credit card fraud. D.C. Official Code 22-3224.01. Although jurisdiction is not a jury question, it must be proved to the judge beyond a reasonable doubt. In Mitchell v. U.S., 569 A.2d 177, 180 (D.C. 1990) , the Court of Appeals held that "the trial judge did not err in ruling that the jurisdictional question was for him to decide." Nevertheless, the Court found
persuasive the rationale underlying the rule that jurisdiction must be proved beyond a reasonable doubt. A jurisdictional determination involves the power of the court to try a defendant and adopting a stringent burden of proof minimizes the chance that a defendant will be tried here for a crime committed elsewhere and thereby increases the likelihood that greater deference will be given to our decisions by other jurisdictions. Id. at 180-81 . See Dyson v. U.S., 848 A.2d 603, 608-10 (D.C. 2004) (trial court had territorial jurisdiction over kidnapping offense where one of the component elements of that offense occurred in the District, even though other aspects of the continuing offense occurred in Maryland). The offense of credit card fraud was created in the Theft and White Collar Crimes Act of 1982. In the
first element, the court should choose the bracketed material that fits the facts of the case. Although the statute does not specify that the conduct proscribed in the fourth bracketed sentence--representation that an unissued credit card has in fact been issued--must be knowing, it is clear from the legislative history that this conduct requires the same state of mind as other conduct proscribed in the first element. The District of Columbia Theft and White Collar Crimes Act of 1982, Report of the Committee on the Judiciary (June 1, 1982) at 15. As a result, the second element applies to each of the bracketed materials in the first element. The bracketed explanatory paragraph on canceled or revoked credit cards should be selected when the use of a canceled or revoked card is at issue. The definitions generally are taken from the statute itself. In the Fifth Edition, the Committee substituted "intended to deceive or cheat" in place of "intent to defraud" in an effort to simplify and clarify the language. That language is taken substantially from 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 16.07 (5th ed. 2000). The Committee has placed in brackets the definition of credit card. The Committee is of the opinion that in cases where there is no genuine issue as to whether the object is a credit card, no explanatory instruction need be given. As with other instructions on offenses under the Theft and White Collar Crimes Act, the Committee recommends that the definition of property of another as "anything of value owned by someone other than the defendant" be given as a matter of course, but that any further definition of "property," "property of another," and "services" be reserved for situations in which the jury will need further explanation of those terms. For further discussion, see comment to No. 3.106, Property or Property of Another--Defined. Where the value of the property obtained is $250 or more, the court will need to instruct the jury on the need to find a value of $250 or more in order to establish a predicate for the felony sentence allowed by D.C. Official Code 22-3223(d)(1) (2001). See White v. U.S., 613 A.2d 869 (D.C. 1992) (value of forged instrument was an element where value was used to fix sentencing alternatives higher than the minimum sentence for forgery). Where that instruction is given, the Committee recommends that the instruction on Proof of Value, No. 3.105, be given. Cross references: No. 3.105, Proof of Value; No. 3.106 Property or Property of Another--Defined; No. 5.200, Fraud.
Page 396
152 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 2. Fraud and Criminal Writing 1-V Criminal Jury Instructions for DC Instruction 5.210 Instruction 5.210 FORGERY AND UTTERING
D.C. Official Code 22-3241 (2001) A. FORGERY The elements of the offense of forgery, each of which the government must prove beyond a reasonable doubt are that: 1. [Name of defendant] without the consent of [name of complainant] [falsely made, altered, signed or endorsed a written instrument] [made a false addition or insertion on a written instrument] [combined parts of two or more genuine written instruments to form the written instrument in question]; 2. S/he intended to deceive or cheat someone for the purpose of either causing some financial loss to another or bringing about some financial gain to himself/herself; and (If the offense charged carries a penalty of 10 years, $10,000 or both:) [3. That the written instrument is or appears to be a [choose the appropriate instrument]: a. Stamp, legal tender, bond, check, or other valuable instrument issued by a domestic or foreign government or governmental instrumentality; b. Stock certificate, bond, or other instrument representing an interest in or claim against a corporation or other organization of its property; c. Public record, or written instrument filed in a public office or with a public servant;
d. A written instrument officially issued or created by a public office, public servant, or government instrumentality; e. Payroll check; f. Deed, will, codicil, contract, assignment commercial instrument, or other written instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation, or status; g. [Insert other item, not listed in a-f, chosen from D.C. Official Code 22-3241(3) (2001)] having a value of $10,000 or more; h. Valid legal document having a value of $10,000 or more.
[Insert Proof of Value, No. 3.105, if necessary.]] (If the offense charged carries a penalty of five years, $5,000 or both.) [3. That the written instrument is or appears to be a [choose the appropriate instrument]]: a. Token, fare card, public transportation transfer certificate, or other article made for use as a symbol of value in place of money for the purchase of property or services; b. A prescription of a duly licensed physician or other person authorized to issue a prescription for any controlled substance or other written instrument or device used in the taking or administering of controlled substances for which a prescription is required by law; c. [Insert other item, not listed in a or b, chosen from D.C. Official Code 22-3241(3) (2001)] having a value of [$250][$1,000] or more; d. A valid legal document having a value of [$250][$1,000] or more.
[Insert Proof of Value, No. 3.105, if necessary.]] (If the offense charged carries a misdemeanor penalty:) [3. That the written instrument is or appears to be a valid legal document.]
To establish the first essential element of the offense, the government need not prove that the whole written instrument was falsified or altered, but only that it contained some material misrepresentation of fact. [Thus, even though the signature on the written instrument may have been the genuine signature of the complainant, if you find that the name of the payee or the amount were not written by the complainant or were not filled in by someone else at the direction of the complainant or with his/her consent, then you may find that the check was falsely made, altered, signed or endorsed.] An intent to deceive or cheat is not to be presumed from the mere making of a false instrument. It may be found,
however, on the basis of some affirmative act, such as the passing of the written instrument, or on the basis of other circumstances in evidence. [To establish that the written instrument is or appears to be a [insert word or phrase chosen from the third element], the government must prove that a person of ordinary intelligence, looking at the written instrument, would believe it to be a [insert word or phrase chosen above.]] [To establish that the written instrument is or appears to be a valid legal document, the government must prove that it could be used in a legal transaction or as a basis of legal liability. The government need not prove that the document would have been accepted or approved by [insert appropriate entity, depending on the circumstances of the case]. But if no person of ordinary intelligence, looking at the written instrument, would think that it was of legal significance and, therefore, capable of being used to the detriment of another, you could not find that the written instrument is or appears to be a valid legal document.] B. UTTERING The elements of the offense of uttering, each of which the government must prove beyond a reasonable doubt, are that: 1. The written instrument in question [was falsely made, altered, signed or endorsed] [was one on which a false addition or insertion had been made] [was a combination of parts of two or more genuine written instruments]; 2. [Name of defendant] [issued] [authenticated] [transferred] [published] [sold] [delivered] [transmitted] [presented] [displayed] [used] [certified] the written instrument to someone; 3. S/he knew that the written instrument was not genuine, but was [falsely made, altered, signed or endorsed] [one on which a false addition or insertion had been made] [a combination of two or more genuine written instruments]; 4. S/he intended to deceive or cheat someone for the purpose of either causing some financial loss to another or bringing about some financial gain to himself/herself [and, without the consent of [name of complainant]]; and (If the offense charged carries a penalty of 10 years, $10,000 or both:) [5. That the written instrument appears from its face to be a [choose the appropriate instrument]: a. Stamp, legal tender, bond, check, or other valuable written instrument issued by a domestic or foreign government or governmental instrumentality; b. Stock certificate, bond, or other written instrument representing an interest in or claim against a corporation or other organization of its property; c. Public record, or written instrument filed in a public office or with a public servant; d. Written instrument officially issued or created by a public office, public servant, or government instrumentality; e. Payroll check;
f. Deed, will, codicil, contract, assignment, commercial instrument, or other written instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation, or status; g. [Insert other item, not listed in 1-6, chosen from D.C. Official Code 22-3241(3) (2001)] having a value of $10,000 or more; h. Valid legal document having a value of $10,000 or more [Insert Proof of Value, No. 3.105, if necessary.]] (If the offense charged carries a penalty of five years, $5,000 or both:) [5. That the written instrument is or appears on its face to be a [choose the appropriate instrument]: a. Token, fare card, public transportation transfer certificate, or other article made for use as a symbol of value in place of money for the purchase of property or services; b. A prescription of a duly licensed physician or other person authorized to issue a prescription for any controlled substance or other written instrument or device used in the taking or administering of controlled substances for which a prescription is required by law; c. [Insert other item, not listed in 1-2, chosen from D.C. Official Code 22-3241(3) (2001)] having a value of [$250][$1,000] or more; d. A valid legal document having a value of [$250][$1,000] or more. [Insert Proof of Value, No. 3.05, if necessary.]] (If the offense charged carries a penalty of not more than three years:) [5. That the written instrument is or appears to be a valid legal document.]
To establish the first element of the offense, the government need not prove that the whole written instrument was falsified, but only that it have contained some material misrepresentation of fact. [Thus, even though the signature on the written instrument may have been the genuine signature of the complainant, if you find that the name of the payee or the amount were not written by the complainant or were not filled in by someone else at the direction of the complainant or with his/her consent, then you may find that the written instrument was falsely made, altered, signed or endorsed.] The government need not prove that the defendant or any other specific individual falsely made the written instrument. To establish the second element of the offense, the government must prove beyond a reasonable doubt that [name of defendant] [insert appropriate word] the written instrument to someone. It is also necessary that the defendant have claimed or demonstrated by words or actions that the written instrument was genuine. It is not necessary that the defendant have had the intent to deceive or cheat any particular person or organization. It is necessary, however, that the defendant have had the intent to deceive or cheat someone.
[To establish that the written instrument is or appears to be a [insert word or phrase chosen from the third element], the government must prove that a person of ordinary intelligence, looking at the written instrument, would believe it to be a [insert word or phrase chosen above]. [To establish that the written instrument is or appears to be a valid legal document, the government must prove that it could be used in a legal transaction or as a basis of legal liability. The government need not prove that the document would have been accepted or approved by [insert appropriate entity, depending on the circumstances of the case]. But if no person of ordinary intelligence would think that the written instrument was of legal significance and therefore capable of being used to the detriment of another, you could not find that the written instrument is or appears to be a valid legal document.] ____________________________________ Comment: The Criminal Code Amendment Act of 2010, which went into effect as emergency legislation on January 18, 2011, changed the felony threshold to "$1,000 or more." The 2011 release incorporated that change. The Committee has left "[$250]" in the instruction for offenses which occurred before that date. The Theft and White Collar Crimes Act of 1982 reenacted and recodified the offenses of forgery and uttering, but--except for clarifying the law, broadening the kinds of instruments that could be the subject of criminal activity, and making penalties dependent on the nature and value of the instruments used--the Act did not change the nature of the offenses. See Clarke, Report of the Committee of the Judiciary on Bill No. 4-133, The District of Columbia Theft and White Collar Crimes Act of 1982, at 2 (D.C. June 1, 1982); Extension of Comments on Bill No. 4-133: The District of Columbia Theft and White Collar Crimes Act of 1982, submitted by Councilmember David A. Clarke, at 58 (July 20, 1982) (cited hereafter as "Clarke"); Driver v. U.S., 521 A.2d 254, 258 (D.C. 1987) . Forgery and uttering, though included under one subsection labeled "Forgery," continue to be separate offenses. Id. at 258 n. 5 . Accordingly, the Committee provided separate instructions for each. However, some of the elements, and all of the sentencing provisions, are the same, and much of the comment regarding forgery applies to uttering as well. The conduct proscribed by the forgery provisions is making or drawing a forged written instrument. The concept of "drawing," taken from the Uniform Commercial Code, was added by the Theft and White Collar Crimes Act, but was not intended to "alter substantively the present law." Clarke at 61. Accordingly, the Committee elected not to use that term, concluding that it added nothing, in terms of jury understanding, to the concept of "making." For the sake of clarity, the Committee, in the first element and its explanatory paragraph, combined the proscriptive section, D.C. Official Code 22-3241(b) (2001), with the definition of "forged written instrument" in D.C. Official Code 22-3241(a) (2001). The statute provides three different ways in which a person can make or draw a forged written instrument. In element one, the judge should choose from the bracketed material the language fitting the facts of the case. The first explanatory paragraph should be used in appropriate cases. Forgery includes signing a fictitious name, Milton v. U.S., 110 F.2d 556, 71 App. D.C. 394 (1940) . But forgery is not limited to instances where false names or numbers are written; it includes, for example, true information entered without authorization and with intent to defraud. Driver v. U.S., 521 A.2d 254, 258-59 (D.C. 1987) (entry of defendant's name and address on stolen money order with intent to defraud constituted forgery); see also Martin v. U.S., 435 A.2d 395, 398 (D.C. 1981) (similar); Lieberman v. U.S., 253 F.2d 46, 102 U.S. App. D.C. 310 (1958) (inducement of customer to sign blank note on false representation. The bracketed material in the first explanatory paragraph should be used in such cases of
so-called "true-name" forgery. The government need not prove reliance. Ashby v. U.S., 363 A.2d 685, 687 (D.C. 1976) . The second element expresses the mens rea required for conviction. In the Fifth Edition, the Committee substituted "intended to deceive or cheat" in place of "intent to defraud" in an effort to simplify and clarify the language. The definition of intent to deceive or cheat is taken substantially from 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 16.07 (5th ed. 2000). The bracketed language in this element, as well as in the fourth element of the uttering instruction, must be inserted whenever the defendant is charged with forging the name of a real or existing person. See U.S. v. Gilbert, 433 F.2d 1172, 140 U.S. App. D.C. 66 (1970) . Where there is evidence that the defendant was merely negligent in making or uttering the instrument, the jury must be instructed that it should acquit if it finds that the defendant was merely negligent in making or uttering the instrument "with respect to which the facts should have put him on guard." See Bradley v. U.S., 420 F.2d 181, 136 U.S. App. D.C. 339 (1969) . The government need not prove an intent to defraud a particular person or entity. Read v. U.S., 55 App. D.C. 43, 46 (1924) . Nor need it prove that any one was actually defrauded. Easterday v. U.S., 292 F. 664, 667, 53 App. D.C. 387, 390 (1923) . Intent may not be inferred from the making of the false instrument, but must be inferred from some affirmative act or other circumstances. Frisby v. U.S., 38 App. D.C. 22, 27 (1912) . Prior law covered "any writing ... which might operate to the prejudice of another... ." (D.C. Code 22-1401 (1973)). It was part of the government's burden of proof, under the prior statute as well as under the common law, to show that the instrument was "apparently capable of effecting a fraud." See, e.g., Martin v. U.S., 435 A.2d 395, 398 (D.C. 1981) ; Frisby v. U.S., 38 App. D.C. 22, 26 (1912) . This requirement reflected the rule that the instrument must " 'apparently have [legal] efficacy,' " if genuine, for a document "invalid on its face then can have no legal tendency to effect a fraud." Read v. U.S., 55 App. D.C. 43, 44 (1924) , quoting State v. Johnson, 26 Iowa 407, 417 (Iowa 1868) . The Committee is of the opinion that the element that the instrument be "capable of effecting a fraud," an element in the 1978 edition, was another way of expressing the statutory requirement that the writing be one that "might operate to the prejudice of another." In some cases, the third element has been expressed in these terms. See, e.g., Ashby, 363 A.2d at 687 (forgery requires "the signing of a fictitious name, accompanied by the necessary fraudulent intent, to an instrument capable of working a prejudice to the interests of another"); U.S. v. Sayan, 968 F.2d 55, 296 U.S. App. D.C. 319 (1992) (same); Milton, 110 F.2d 556, 560, 71 App. D.C. 394, 398 (1940) ("It is enough if the forged instrument be apparently sufficient to support a legal claim and thus to effect a fraud."). The Theft and White Collar Crimes Act in two places provided several examples of instruments that may be the subject of forgery. First, D.C. Official Code 22-3241(a)(3) (2001) defines "written instrument" as "including, but not limited to" the several examples listed. Second, the penalty provisions in D.C. Official Code 22-3242 (2001) are dependent on whether the instrument "is or purports to be" one of the examples listed, as well as on, in some cases, the value. These examples are not exhaustive; the statute continues to cover any written instrument "that might operate to the prejudice of another." Gholson v. U.S., 532 A.2d 118 (D.C. 1987) (time slips held to be written instruments). In the Committee's view, however, the Theft and White Collar Crimes Act, by providing examples of writings covered by the statute, eliminated, in cases where an instrument covered explicitly by the statute is involved, the need to prove separately that the instrument "might operate to the prejudice of another." The legislature has determined that such instruments have that capacity. Thus, in the Committee's view, the need to prove separately that the instrument was "capable of effecting a fraud," an element required under prior law and included in prior editions, was also eliminated, so long as the government proves that the instrument is or appears to be, in the eye of the ordinary observer, one of the instruments set out in the statute. Hence, the
instruction in element three requires a finding that the instrument is or appears to be one of the instruments set out in the statute, and in the explanatory paragraph establishes that tha finding is to be made from the point of view of the ordinary person, looking at the document. On the other hand, where the document at issue is not one set out in the statute, such as the time slips in Gholson, the jury would need a separate instruction requiring that the instrument be one that might operate to the prejudice of another. The Committee believed that the jury would understand this concept best were it instructed as set forth (depending on the penalties involved), that the document appear to be a "valid legal document." The bracketed explanatory paragraph should be used in conjunction with this element; that explanation elaborates the need to find that the instrument appear to have legal efficacy and, therefore, be capable of operating to someone's prejudice. The Committee has chosen language that, it believes, is consistent with the law and also understandable to a jury. It should be noted that, if a writing purporting to be one of the enumerated instruments is so incomplete as to create an issue as to whether it could be used to prejudice another, the bracketed explanatory language could be adapted to present that issue to the jury. When choosing the appropriate language for the third element, the judge should have in mind the indictment and the penalties sought. See D.C. Official Code 22-3242 (2001). That section provides a ten-year penalty for some specified instruments, a five-year penalty for others, and a three-year penalty in "any other case." The instrument and value chosen must match the appropriate statutory language in order for the specified penalty to attach. White v. U.S., 613 A.2d 869 (D.C. 1992) (en banc). Where the penalty depends on the value of the instrument, the Committee recommends that the instruction on Proof of Value, No. 3.105, be given. With respect to the uttering instruction, element one, with its explanatory paragraph, defines "forged written instrument" in accordance with D.C. Official Code 22-3241(a) (2001). The court should choose the appropriate bracketed language. Element two describes the forbidden conduct, using the definition in D.C. Official Code 22-3241(a)(2) (2001). The court may wish to choose the appropriate bracketed term. Element three is drawn from the 1978 edition. See Rosser v. U.S., 307 A.2d 752 (D.C. 1973) (indictment must allege that defendant knew that the instrument was forged). Elements four and five are the same as elements two and three of the forgery instruction. This instruction was modified in the 1996 release in light of Short v. U.S., 676 A.2d 910, 912 (D.C. 1996) , which held that "[a] person ... utters so long as he or she displays ... an instrument that is 'reasonably ad[a]pted to deceive a person of ordinary intelligence,' knowing it to be forged and intending thereby to defraud or injure another. No additional words or action constituting a representation are necessary." In that case, the court concluded that the jury need not find that the defendant displayed the flashpass to someone "representing that it was true and genuine." All that was required was that the written instrument generally purported to be genuine. The person to whom the document was presented need not be the intended victim of the fraud. See generally Boyd v. U.S., 870 A.2d 70, 71 (D.C. 2005) (per curiam) (uttering and attempted second-degree theft do not merge; each offense requires proof of an element that the other does not); Zanders v. U.S., 678 A.2d 556 (D.C. 1996) (citing this instruction with approval); D.C. Official Code 22-1801 (2001) (definition of "writing" and "paper"); 2 O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 32.01-32.13 (5th ed. 2000). Cross reference: No. 3.101, Proof of State of Mind.
Page 403
153 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 2. Fraud and Criminal Writing 1-V Criminal Jury Instructions for DC Instruction 5.220 Instruction 5.220 IDENTITY THEFT
D.C. Official Code 22-3227.01, 22-3227.02, and 22-3227.03 (2001)
The elements of identity theft in the [first] [second] degree, each of which the government must prove beyond a reasonable doubt, are that: A. FIRST DEGREE IDENTITY THEFT--USE OF PERSONAL IDENTIFYING INFORMATION l. [Name of defendant ] used the personal identifying information belonging to or pertaining to [name of complainant] ; 2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so to obtain or attempt to obtain property fraudulently; 4. S/he obtained or attempted to obtain the property without the consent of [name of complainant] ; and 5. The [property obtained or attempted to be obtained had a value of] [financial injury sustained by [name of complainant] was] [$250] [$1,000] or more. B. SECOND DEGREE IDENTITY THEFT--USE OF PERSONAL IDENTIFYING INFORMATION l. [Name of defendant used the personal identifying information belonging to or pertaining to [name of complainant] ;
2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so to obtain or attempt to obtain property fraudulently; 4. S/he obtained or attempted to obtain the property without the consent of [name of complainant] ; and 5. The [property obtained or attempted to be obtained] [financial injury sustained by [name of complainant] ] had some value. C. FIRST DEGREE IDENTITY THEFT--POSSESSING, CREATING, OR OBTAINING PERSONAL IDENTIFYING INFORMATION 1. [Name of defendant] [possessed] [created] [obtained] the personal identifying information of [name of complainant] ; 2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so with the intent to obtain or attempt to obtain property fraudulently; 4. S/he did so without [name of complainant's] consent; and 5. The [property obtained or attempted to be obtained had a value of] [financial injury sustained by [name of complainant] was] [$250] [$1000] or more. D. SECOND DEGREE IDENTITY THEFT--POSSESSING, CREATING, OR OBTAINING PERSONAL IDENTIFYING INFORMATION 1. [Name of defendant ] [possessed] [created] [obtained] the personal identifying information of [name of complainant]; 2. S/he did so voluntarily and on purpose and not by mistake or accident; 3. S/he did so with the intent to use the information to obtain or attempt to obtain property fraudulently; 4. S/he did so without [name of complainant's] consent; and 5. The [property obtained or attempted to be obtained] [financial injury sustained by [name of complainant] ] had some value. E. FIRST DEGREE IDENTITY THEFT--GIVING, SELLING, TRANSMITTING, OR TRANSFERRING PERSONAL IDENTIFYING INFORMATION TO A THIRD PERSON 1. [Name of defendant ] [possessed] [created] [obtained] the personal identifying information of [name of complainant] ; 2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so with the intent to [give] [sell] [transmit] [transfer] the information to another person to facilitate the use of the information by that person to obtain or attempt to obtain property fraudulently;
4. S/he did so without [name of complainant's] consent; and 5. The [property obtained or attempted to be obtained had a value of] [financial injury sustained by [name of complainant] was] [$250] [$1000] or more. F. SECOND DEGREE IDENTITY THEFT--GIVING, SELLING, TRANSMITTING, OR TRANSFERRING PERSONAL IDENTIFYING INFORMATION TO A THIRD PERSON 1. [Name of defendant [possessed] [created] [obtained] the personal identifying information of [name of complainant] ; 2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so with the intent to [give] [sell] [transmit] [transfer] the information to another person to facilitate the use of the information by that person to obtain or attempt to obtain property fraudulently; 4. S/he did so without [name of complainant's] consent; and 5. [The [property obtained or attempted to be obtained] [financial injury sustained by [name of complainant] ] had some value. G. FIRST DEGREE IDENTITY THEFT--USING ANOTHER PERSON'S IDENTIFYING INFORMATION IN THE CRIMINAL JUSTICE SYSTEM The elements of identity theft, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant ] used the personal identifying information of [name of complainant] ; 2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so to [identify himself/herself at the time of his/her arrest;] [facilitate or conceal his/her commission of a crime;] [or] [avoid detection, apprehension, or prosecution for a crime;] 4. S/he did so without [name of complainant's] consent; and 5. As a result, [name of complainant] [lost time, wages, or benefits] [incurred legal fees] [sustained other losses] [or] [incurred expenses]
[valued at $1,000 or more]. H. SECOND DEGREE IDENTITY THEFT--USING ANOTHER PERSON'S IDENTIFYING INFORMATION IN THE CRIMINAL JUSTICE SYSTEM The elements of identity theft, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant ] used the personal identifying information of [name of complainant] ; 2. S/he did so voluntarily and on purpose, and not by mistake or accident; 3. S/he did so to [identify himself/herself at the time of his/her arrest;] [facilitate or conceal his/her commission of a crime;] [or] [avoid detection, apprehension, or prosecution for a crime;] 4. S/he did so without [name of complainant's] consent; and 5. As a result, [name of complainant] [[lost time, wages, or benefits] [incurred legal fees] [sustained other losses] [or] [incurred expenses] [of some value] [or] [was falsely charged with, or arrested for, committing a crime]. I. DEFINITIONS Personal identifying information of another includes [describe specific information at issue in the case]. [Insert No. 3.106, Property or Property of Another--Defined, where necessary or useful under the circumstances of the case. Note that "credit" is included under the definition of property for identity theft.] ["Value" with respect to a credit card, check, or other written instrument means the amount of money, credit, debt, or other tangible or intangible property or services that has been or can be obtained through its use, or the amount promised or paid by the credit card, check, or other written instrument.] [Insert No. 3.101, Proof of State of Mind.] [Insert No. 3.105, Proof of Value, if necessary.] To act "fraudulently" means to act with the purpose to deceive or cheat. It is ordinarily accompanied by a desire or
purpose to bring about some gain or benefit to oneself or some other person or by a desire or purpose to cause some loss to some person. The government need not prove that the defendant intended to defraud any particular person, so long as it proves that s/he intended to defraud somebody. "Financial injury" means all monetary costs, debts, or obligations incurred by a person as a result of another person obtaining, creating, possessing, or using that person's personal identifying information, including, but not limited to: (A) The costs of clearing the person's credit rating, credit history, criminal record, or any other official record, including attorney fees; (B) The expenses related to any civil or administrative proceeding to satisfy or contest a debt, lien, judgment, or other obligation of the person that arose as a result of the alleged offense, including attorney fees; (C) The costs of repairing or replacing damaged or stolen property; and (D) Lost time or wages, or any similar monetary benefit forgone while the person is seeking redress for damages resulting from the alleged offense.
To be used when the victim is 65 years of age or older: [If you find [name of defendant] guilty of [insert name of crime], you should go on to decide whether the government proved beyond a reasonable doubt that at the time of the offense [name of complainant] was 65 years of age or older. There is a separate place on the verdict form for you to indicate your decision (yes or no) on this additional factor.] [If you have answered "yes" to this question, you should go on to consider whether [Name of defendant ] has proved by a preponderance of the evidence that s/he reasonably believed either that [name of complainant] was not 65 years of age or older at the time of the offense or that [name of defendant] could not have known or determined the age of the victim because of the manner in which the offense was committed. There is a separate place on the verdict form for you to indicate your decision (yes or no) on this additional factor.] ____________________________________ Comment: The 2010 release amended the instruction to account for the Crime Bill Emergency Amendment Act, which applies to offenses that occurred on and after June 29, 2009, and which was later incorporated into the Omnibus Public Safety Amendment Act of 2009. Parts G and H add a new identity theft offense arising from the use of another person's personal identifying information at the time of his or her arrest, or to facilitate or conceal his or her commission of a crime, or to avoid detection, apprehension, or prosecution for a crime. D.C. Official Code 22-3227.02(3). In Part H, the Commission decided to use the phrase "falsely charged with" rather than track the statutory language of "falsely accused of" as a clearer way of expressing that the harm must be a formal accusation by law enforcement and not, for example, an accusation by an employer or neighbor. "Charged with" is not meant to imply that an information or indictment is required; the issuance of an arrest warrant should suffice. The 2010 release also added bracketed amounts in the fifth element of Parts A, C, and E to reflect the change in the monetary threshold for felonies from $250 to $1,000 for offenses committed on and after
June 29, 2009. D.C. Official Code 22-3227.02(a). Finally, a definition for value with respect to credit cards, checks, and other written instruments has been added. D.C. Official Code 22-3201(7) for offenses committed on and after June 29, 2009. This instruction was originally added in the 2004 release and tracked the statutory language found in D.C. Official Code 22-3227.01 et seq. See also Identity Theft Amendment Act of 2003, Act 15-196, D.C. Law 15-106 (effective March 27, 2004). The statute provides four ways in which identity theft may be committed; a set of sample instructions for each method is provided. The court should select the appropriate definition or definitions of what constitutes "personal identifying information" based on the evidence presented in the case. See D.C. Official Code 22-3227.01(3). The court may also wish to use only the definitions of "financial injury" that are appropriate based upon the evidence presented. Personal identifying information includes but is not limited to: name, address, telephone number, date of birth, or mother's maiden name, driver's license or driver's license number, or non-driver's license or non-driver's license number; savings, checking, or other financial account number; social security number or tax identification number; passport or passport number; citizenship status, visa, or alien registration card or number; birth certificate or a facsimile of a birth certificate; credit or debit card, or credit or debit card number; credit history or credit rating; signature; personal identification number, electronic identification number, password, access code or device, electronic address, electronic identification number, routing information or code, digital signature, or telecommunication identifying information; biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; place of employment, employment history, or employee identification number; or any other numbers or information that can be used to access a person's financial resources, access medical information, obtain identification, act as identification, or obtain property. D.C. Official Code 22-3227.01(3). In calculating the value of the "property" or "benefits obtained," it is immaterial whether a financial institution, insurance company, or other business entity, absorbed the complainant's loss as long as the complainant's personal information, in the first instance, was used to obtain the property. In contrast, in calculating the "financial injury" sustained, only those costs actually and directly sustained by the complainant may be included. The definition of "fraudulent" is taken from Instructions 5.200 (Fraud) and 5.201 (Credit Card Fraud). The statute provides for an enhanced penalty for committing the offense of identity theft against an individual who is 65 years of age or older, at the time of the offense. The statute lists two affirmative defenses to the sentencing enhancement for a victim 65 years of age or older: that the accused (1) reasonably believed that the victim was not 65 years of age or older at the time of the offense; or (2) could not have determined the age of the victim because of the manner in which the offense was committed. The Committee is in agreement that the defendant must affirmatively raise one or both of these defenses. Cross References: No. 3.101, Proof of State of Mind; No. 3.105, Proof of Value; No. 3.106, Property or Property of Another--Defined; No. 5.200, Fraud; No. 5.201, Credit Card Fraud; No. 8.103, Sentencing Enhancements Based on Age.
Page 409
154 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.300 Instruction 5.300 THEFT
D.C. Official Code 22-3211, 22-3212 (2001)
The elements of the offense of theft, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] wrongfully obtained the property of another by: [a. [Taking] [Exercising control over] the property against the will or against the interest of [name of owner] [name of person in lawful possession of the property].] [b. Using, transferring, or disposing of the property or an interest in the property without the authority of [name of owner] [name of person in lawful possession of the property].] [c. [Deception] [False token] [Tampering].] 2. When s/he obtained [or used] the property, s/he intended either to deprive [name of owner] [name of person in lawful possession] of a right to the property or a benefit of the property or to take or make use of the property for him/herself or for another person, without authority or right; and 3. The property had [a value of [$250] [$1000] or more] [some value]. ["Value" with respect to a credit card, check, or other written instrument means the amount of money, credit, debt, or other tangible or intangible property or services that has been or can be obtained through its use, or the amount promised or paid by the credit card, check, or other written instrument.]
"Property of another" means anything of value owned by someone other than the defendant. [Insert further definition of "Property of Another" from No. 3.106, Property or Property of Another--Defined, where necessary or useful under the circumstances of the case.] [If [name of defendant] wrongfully obtained the property, it does not matter that his/her control was brief or that s/he was detected before s/he removed the property from [name of complainant's] premises.] [To intend to deprive another of property means to intend to withhold the property or cause it to be withheld from a person permanently or for such an extended period or under such circumstances that the defendant acquires a substantial portion of the property's value. It may also mean to dispose of the property or to use or deal with the property in such a way as to make it unlikely that the owner will recover it.] ["Deception" is any act or communication made by [name of defendant] which s/he knows to be false, and on which the [[name of complainant] [owner] [person in lawful possession of the property] relies in making his/her decision to give up his/her property to another.]] [A "false token" is a false substitute either for money or for a legitimate money substitute that has been issued by [name of complainant]. The defendant must know that the token is false and must use it in a vending machine to obtain property from it.] ["Tampering" means knowingly altering or interfering with a meter owned by a utility company such that services are able to be received without payment, or without full payment, to the company.] [Insert Proof of State of Mind, No. 3.101.] [Insert Proof of Value, No. 3.105, where necessary.] [If the victim was 60 years of age or older, insert Crimes Against Senior Citizens, No. 8.103 (B).] [To be used as appropriate in cases in which theft of services is alleged: If you find, beyond a reasonable doubt, that: 1. [Name of defendant] obtained services that s/he knew or had reason to believe were available to him/her only for payment; 2. S/he left the place where the services were obtained knowing or having reason to believe that no payment had been made for the services; and 3. Payment ordinarily was made immediately upon receiving the services or before departing from where the services were obtained, then you may infer that [name of defendant] obtained or used the services intending to deprive the [provider of the services] [owner of the services] [[name of complainant] of the services or of a benefit of the services, or that [name of defendant] obtained or used the services intending to appropriate the services to his/her own or a third person's use. You are not required, however, to make this inference. Whether you make it is up to you to decide.]____________________________________ Comment:
The 2010 release added a bracketed paragraph with a definition of value with respect to a credit card, check, or other written instruments in accordance with the Crime Bill Emergency Amendment Act, which applies to offenses that occurred on and after June 29, 2009, and which was later incorporated into the Omnibus Public Safety Amendment Act of 2009. D.C. Official Code 22-3201(7). The Act also changed the felony threshold to "$1,000 or more". The Committee has left "[$250]" in element 3 for offenses which occurred before that effective date. The Act also expanded the term "property" specifically to include credit, debt, and government-issued licenses, permits, or benefits. D.C. Official Code 22-3201(3). The term "person" now means, in addition to living or dead individuals, legal entities including, but not limited to, trusts, estates, partnerships, companies, corporations, associations, organizations, unions, government departments, agencies, or instrumentalities. D.C. Official Code 22-3201(2A). These definitions can be added as appropriate. The Theft and White Collar Crimes Act of 1982 created a single broad statute, consolidating the various common law forms of larceny, false pretenses and embezzlement into one offense. In D.C. Official Code 22-1802, 22-3201, and 22-3211 (2001), the Council defined the illegal conduct, the protected property, and the necessary mental states covered by the statute. The result is a statute that provides common definitions for virtually all theft-related offenses, as well as for other white collar offenses. In earlier editions, the Committee divided this instruction into three subparts, generally corresponding to the common law categories addressed by the statute: larceny; embezzlement, conversion and other misappropriations; trick, false pretenses, false token, tampering and other deceptions. In the Fifth Edition, the Committee combined those three subparts into a single instruction with bracketed language to be used depending upon the evidence presented in a particular case. The Fifth Edition also deleted "theft by trick" and "theft by false pretenses" since these concepts seem to be adequately covered by "deception." Of course, instructions on these particular means of committing a theft may be given. D.C. Official Code 22-3211(b) (2001) generally proscribes conduct by which a person "wrongfully obtains or uses the property of another." This general definition covers three categories of behavior set out in D.C. Official Code 22-3211(a) (2001), each roughly analogous to one or more of the common law offenses: (1) taking or exercising control over property (larceny); (2) making an unauthorized use, disposition, or transfer of an interest or possession of property (embezzlement, larceny after trust, conversion, and thefts based on other trust relationships); and (3) obtaining property by trick, false pretense, false token, tampering, or deception (thefts based on tricks, false pretenses and other similar behavior). The statute does extend to some conduct beyond the previous common law definitions. The Judiciary Committee Report accompanying the legislation supports this view of the three definitions of "wrongfully obtains or uses the property of another." It notes that "tak[es] control addresses the typical larceny situation in which a person takes and carries away the property of another." It also says " 'exercises control' addresses the typical embezzlement situation." The language in D.C. Official Code 22-3211(b) (2001) "addresses the situation in which someone converts, conceals, or misappropriates another's property." Finally, the language in D.C. Official Code 22-3211(a)(3) (2001) addresses other kinds of common law larceny, and includes misuse of vending machines, gas pipes and meters, and the like. Judiciary Committee Report, June 1, 1982, at 11. In the definition of "wrongfully obtained," the Committee has included the term "against the will," even though the statute does not use it, because of comments by Chairperson Clarke of the Judiciary Committee. The Council based this provision on a federal statute that used only the term "obtains or
uses." The Council added the term "wrongfully" so as to "indicate a wrongful intent to obtain or use the property without the consent of the owner or contrary to the owner's rights to the property." Extension of Comments on Bill No. 4-133: The District of Columbia Theft and White Collar Crimes Act of 1982 (July 20, 1982), at 16. Mr. Clarke added:
The term "wrongfully" has been added to insure that purely innocent transactions are excluded from the scope of the offense. For instance, one who accepts a gift exercises control over the property with intent to appropriate it to his or her own use. However, absent other circumstances, this conduct is clearly not intended to be treated as a theft. The Committee therefore included "against the will" in the definition of "wrongfully," because of these comments and because of the Committee report making clear that the concept of "taking control" was supposed to cover common law larceny, which only could be committed by taking property against the will of the complainant. At the same time, however, the Committee did not add the common law concept of "carrying away," which the Council also omitted from the statutory language. See Moorer v. U.S., 868 A.2d 137, 143 n. 11 (D.C. 2005) (noting in dicta that "[t]heft does not have an asportation element"). The Committee added "against the will or the interest of" the owner or other person who had rights in the property superior to the defendant's. This addition is consistent with the remarks of Chairperson Clarke, noted above. As with the concept of "taking control", this limitation would protect a defendant who innocently exercised control. This could occur, for example, where the defend ant had the consent of the owner but also intended to deprive the owner of the right to the property. The Committee has used both "against the interests" as well as "against the will" because there may be some situations, as in trust relationships or instances where the owner is not competent to give or withhold consent, in which the wrongful exercise of control is against the interest of the owner though not necessarily his expressed or implied will. On the other hand, there may be instances in which the control is exercised against the will of the owner but arguably consistent with his interests. The Committee believes that these would be instances of wrongful exercise of control. The first element also includes the concepts of "property" and "property of another." "Property" is defined as "anything of value." D.C. Official Code 22-3201(3) (2001). To prove that property was "property of another" the government need only prove that "the owner ... was someone other than the defendant." Carmon v. U.S., 498 A.2d 580, 582-83 and n. 4 (D.C. 1985) . See also Baldwin v. U.S., 521 A.2d 650 (D.C. 1987) (proof that defendant took dresses with price tags out of store, then returned and left them in store, sufficient to prove property of another); Alston v. U.S., 509 A.2d 1129, 1130-31 (D.C. 1986) (government need not prove that owner had more than a security interest in the property, nor prove that department store was licensed and owned the property). The Committee has combined the definition of "property" and "property of another" in one definition, which, in the Committee's judgment, will suffice in the ordinary case. Some cases may need further instruction on these concepts. For further discussion, see comment to No. 3.106, Property or Property of Another--Defined. The second element of the instruction sets out the mens rea required for conviction. The statute requires either an intent to deprive the other person of a right or benefit in the property, or an intent to appropriate the property to the use of the defendant or a third person. The statute defines "appropriate" and "deprive." D.C. Official Code 22-3201(1) and 22-3201(2) (2001). Rather than using "appropriate" and then defining it, the Committee simply inserted the definition from D.C. Official Code 22-3201(1) (2001), since it expresses the necessary subjective intent to act without authority or right. See Peery v. U.S., 849
A.2d 999 (D.C. 2004) (defendant's conviction for second degree theft reversed because the evidence was not sufficient to establish that the defendant knew he did not have authority to use the law firm's corporate credit card for personal expenses); Nowlin v. U.S., 782 A.2d 288 (D.C. 2001) (evidence insufficient to establish that defendant knew the check he cashed was forged or that he was not entitled to it); Zanders v. U.S., 678 A.2d 556 (D.C. 1996) (evidence sufficient when reasonable jury could infer that the defendants knew they had no authority to use victim's credit card). By contrast, the Committee did not think it necessary or useful in every case to give the jury the definition of "deprive" in D.C. Official Code 22-3201(2) (2001). The bracketed portions, however, are provided for use where the circumstances call for further definition--for example, where the defendant takes property and returns it after an extended period. The Committee does not believe that both alternative mens rea need be given in every case. If, under the facts, it is clear only one mental state is or could be involved, or if the government elects to proceed on only one mental state, the judge may adapt the instruction accordingly. The third element expresses the need to prove value. The court should select the appropriate bracketed phrase depending on whether the government has charged first or second degree theft. See D.C. Official Code 22-3212 (2001). See generally Eldridge v. U.S., 492 A.2d 879, 881-82 (D.C. 1985) (requirements for proving value to establish grand larceny apply to proof of value for first-degree theft). Where the value of the property obtained is $250 or more for offenses occurring before June 29, 2009, or $1000 or more for offenses on or after that date, the court must instruct on the need to find a value of the requisite amount or more in order to establish a predicate for the felony sentence allowed by D.C. Official Code 22-3223(d)(1) (2001). White v. U.S., 613 A.2d 869 (D.C. 1992) (en banc). Where the instruction is given, the Committee recommends that No. 3.105, Proof of Value, be given. With respect to proof of value, D.C. Official Code 22-3202 (2001) allows the fact-finder to aggregate amounts received or lost as a result of the wrongful conduct, and the jury should be so instructed if necessary. For further discussion on value, see Comment, No. 3.105, Proof of Value. Instruction 8.103 (B) should be included when the government alleges that the complainant was a senior citizen at the time of the offense. See D.C. Official Code 22-3601 (2001). The bracketed language regarding the inference from non-payment for service is taken from D.C. Official Code 22-3211(c) (2001), which provides that proof of certain facts creates a prima facie case of theft. Lesser included offense: No. 5.308, Taking Property Without Right. Cross references: No. 3.101, Proof of State of Mind; No. 3.105, Proof of Value, No. 3.106, Property or Property of Another--Defined; No. 8.103, Sentencing Enhancements Based on Age; Nos. 5.301-5.308, Theft-Related Offenses.
Page 414
155 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.301 Instruction 5.301 RECEIVING STOLEN PROPERTY AND ATTEMPTED RECEIPT OF STOLEN PROPERTY
The elements of the offense of [receiving stolen property] [attempted receipt of stolen property], each of which the government must prove beyond a reasonable doubt, are that: 1. [The property in question had been stolen by someone] [Although the property was not stolen, the defendant believed it had been stolen]; 2. [Name of defendant] bought, received, or possessed [the stolen property] [the property which the defendant believed had been stolen]; 3. At the time [name of defendant] did so, s/he knew or had reason to believe that the property was stolen; 4. At that time, s/he intended to deprive another of the right to the property or to a benefit of the property; and 5. The property had [the value of [$250][$1,000] or more] [some value]. "Property" means anything of value. [Insert further instruction on "Property," from No. 3.106, Property or Property of Another--Defined. if necessary.]
[Insert Instruction 3.105, Proof of Value, if necessary.] [Insert Instruction 3.104, Possession--Defined, if necessary.] [Insert Instruction 2.320, Inference from the Possession of Recently Stolen Property, if necessary.] [Insert Instruction 3.101, Proof of State of Mind.]____________________________________ Comment: The Theft and White Collar Crimes Act of 1982 allows a conviction for attempted receiving stolen property where the property in fact is not stolen. Accordingly, the bracketed language in the first and second elements of the offense, and in the definition of "stolen property," should be inserted as appropriate depending on the charge. The bracketed language in the fifth element is to be selected depending upon whether the defendant is charged with a felony or misdemeanor. The Criminal Code Amendment Act of 2010, which went into effect as emergency legislation on January 18, 2011, changed the felony threshold to "$1,000 or more". The Committee has left "[$250]" in the instruction for offenses which occurred before that date. The Fifth Edition deleted what was the fifth element in the Fourth Edition which provided: "That at the time the defendant so acted, s/he intended to disobey the law or acted in conscious disregard of the law." In DiGiovanni v. U.S., 580 A.2d 123, 126 (D.C. 1990) , the Court of Appeals held that the trial court need not include an "intent to defraud" in this instruction. As currently written, the instruction includes both a mens rea that the defendant knew or had reason to believe the property was stolen and that s/he intended to deprive another of property, which are the mens rea required in the statute. Knowledge of the existence of the law does not appear to be an element of this offense. It should be noted that the title of the crime, "receipt" of stolen property, is somewhat of a misnomer, since the statute now proscribes possession as well as other forms of gaining control. The Committee recommends against defining "property" further than stating that it is "anything of value," except where, given the nature of the property, the jury needs further explanation. See, e.g, Blackedge v. U.S., 447 A.2d 46 (D.C. 1982) (credit card is something of value). The judge will need to instruct on the need to find a value of $250 or more in order to establish a predicate for the felony sentence allowed by D.C. Official Code 22-3232(c)(1) (2001). White v. U.S., 613 A.2d 869 (D.C. 1992) (en banc). Where the instruction is given, the Committee recommends that the instruction on Proof of Value, No. 3.105, be given. A lesser included offense instruction may also be appropriate. For further comment on property, and proof of value, see the comments to No. 3.106, Property or Property of Another--Defined, and No. 3.105, Proof of Value. As to the proper instruction where a defendant is charged with both receiving stolen property and larceny or burglary, see Cannon v. U.S., 838 A.2d 293 (D.C. 2003) (defendant cannot be convicted of both theft and receipt of stolen property with respect to the same property); Franklin v. U.S., 382 A.2d 20 (D.C. 1978) (where defendants were charged with and convicted of second degree burglary, grand larceny, and receiving stolen property, failure to instruct jury that defendants could not be convicted of receiving count in addition to burglary and larceny counts constituted reversible error under Milanovich v. U.S., 365 U.S. 551 (1961) , and required retrial). As to the requirement that the defendant must have known or had cause to believe that the goods were stolen, see comment to Instruction 2.320, Inference From the Possession of Recently Stolen Property. See also Moore v. U.S., 757 A.2d 78 (D.C. 2000) (bent key used to operate ignition of car as well as
flight when officer informed defendant that he was going to "check out the car" permitted inference that defendant knew the car was stolen). The longer the interval between the theft and discovery of possession of recently stolen property, the weaker the inference to be drawn. Travers v. U.S., 335 F.2d 698, 118 U.S. App. D.C. 276 (1964) . The defendant's guilty knowledge that goods were stolen may be inferred from the great disparity between the market price of goods and the alleged price the defendant paid for them. Payne v. U.S., 171 A.2d 509 (D.C. 1961) , overruled on other grounds, Harris v. U.S., 315 A.2d 569 (D.C. 1974) . Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment; No. 3.101, Proof of State of Mind; No. 3.104, Possession--Defined; No. 3.105, Proof of Value; No. 5.305, Trafficking In Stolen Property.
Page 417
156 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.302 Instruction 5.302 UNAUTHORIZED USE OF A MOTOR VEHICLE
D.C. Official Code 22-3215 (2001) A. UNAUTHORIZED USE OF A VEHICLE For offenses committed on or after August 6, 2009: The elements of unauthorized use of a motor vehicle, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [took, used, or operated [insert type of motor vehicle]] [caused [insert type of motor vehicle] to be taken, used, or operated]; 2. S/he did so for his/her own profit, use or purpose; 3. S/he did so without the consent of the owner [or some other person who had authority to consent on the owner's behalf]; and 4. When s/he [took, used, or operated [insert type of motor vehicle]] [caused the [insert type of motor vehicle] to be taken, used, operated], s/he knew that s/he did so without the consent of the owner [or some other person with authority to consent on the owner's behalf].
It is not necessary for the government to prove that the defendant stole the vehicle or intended to steal it.
For offenses committed before August 6, 2009: The elements of the offense of unauthorized use of a motor vehicle, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [[took] [used] [operated] [insert type of motor vehicle] [removed a [insert type of motor vehicle] from any place]] [caused [insert type of motor vehicle] to be [taken] [used] [operated] [removed from any place]]; 2. S/he did so for his/her own profit, use, or purpose; 3. S/he did so without the consent of the owner [or some other person who had authority to consent on the owner's behalf]; and 4. When s/he [[took] [used] [operated] [removed the vehicle]] [caused it to be [taken] [used] [operated] [removed]], s/he knew that s/he did so without the consent of the owner [or some other person with authority to consent on the owner's behalf].
It is not necessary that the defendant would have stolen the vehicle or have had intended to steal it. For offenses committed on or after June 29, 2009: B. UNAUTHORIZED USE OF A VEHICLE DURING THE COURSE OF, OR TO FACILITATE, A CRIME OF VIOLENCE The elements of unauthorized use of a motor vehicle during the course of, or to facilitate, a crime of violence, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant ] [took, used, or operated [insert type of motor vehicle]] [caused a [insert type of motor vehicle] to be taken, used, or operated]; 2. S/he did so for his/her own profit, use or purpose; 3. S/he did so without the consent of the owner [or some other person who had authority to consent on the owner's behalf]; 4. When s/he [took, used, or operated the [insert type of motor vehicle] ] [caused the [insert type of motor vehicle] to be taken, used, or operated], s/he knew that s/he did not have the consent of the owner [or some other person with authority to consent on the owner's behalf]; and 5. S/he [took, used, or operated it] [caused it to be taken, used, or operated] while committing, or to facilitate [insert crime of violence] .
It is not necessary for the government to prove that the defendant stole the vehicle or intended to steal it. [The elements of [insert crime of violence] are [insert instruction]]. [I have already instructed you on the elements of [insert crime of violence]]. ____________________________________
Comment: The 2010 release modified the instruction for unauthorized use of a vehicle in Part A to reflect changes made by the Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189) and the emergency versions of this Act that went into effect initially on August 6, 2009 (Act 18-181 and B 18-466). The revised version applies to offenses committed on or after that date. The Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189), and the emergency versions of this Act that went into effect initially on June 29, 2009 (Act 18-129), created the offense of unauthorized use of a vehicle during the course of, or to facilitate, a crime of violence. Part B has been added to reflect that new offense. The first bracketed sentence at the end of Part B should be given if the named crime(s) of violence is not charged in the indictment and the court, therefore, would not have given the instruction for it. The second bracketed sentence should be given if the court has so instructed the jury already. The types of motor vehicles that are covered by the statute are: automobile, self-propelled mobile home, motorcycle, truck, truck tractor, truck tractor with semitrailer or trailer, and bus. The term "motor vehicle" can be used as well. The court can simplify the instruction by giving only those portions of the bracketed language which are relevant in the particular case. It should also insert the particular type of "motor vehicle." A "motor vehicle" means any automobile, self-propelled mobile home, motorcycle, moped, truck, truck tractor, truck tractor with semi or full trailer, bus, or all-terrain vehicle. See D.C. Official Code 22-3215 (a); see also Gordon v. U.S., 906 A.2d 882 (D.C. 2006) (all-terrain vehicle is a motor vehicle); U.S. v. Stancil, 422 A.2d 1285 (D.C. 1980) (moped is a motor vehicle). Elements three and four have also been modified by adding the bracketed phrase "[or some other person with authority to consent on the owner's behalf]" for use in appropriate cases as required by Jackson v. U.S., 600 A.2d 90 (D.C. 1991) . Proof of unauthorized use of a vehicle does not require a showing either that the defendant stole the vehicle or that he intended to do so. U.S. v. Johnson, 433 F.2d 1160, 140 U.S. App. D.C. 54 (1970) . As to proof of the owner's lack of consent to operate the vehicle, see Evans v. U.S., 417 A.2d 963 (D.C. 1980) (evidence that defendant gave false identity and false addresses to procure rental agreement held sufficient for jury to conclude that rental agency did not knowingly consent to defendant's use of vehicle); Powell v. U.S., 418 F.2d 470, 473, 135 U.S. App. D.C. 254, 257 (1969) (government need not prove that all persons capable of giving permission in fact did not; government need not foreclose every possible source of authorization when a conclusion contrary to the proven facts "could have derived only from a complete rejection of what is normal human experience"). Although the mental state required for this offense is that the defendant knew that s/he acted without consent of the owner, the Court of Appeals has described the offense as a general intent crime for which voluntary intoxication is not a defense. See Carter v. U.S., 531 A.2d 956, 960-61 and n.13 (D.C. 1987) . As to the sufficiency of evidence to sustain a conviction for this offense, see Agnew v. U.S., 813 A.2d 192, 199 (D.C. 2002) ("There is nothing in the physical characteristics of the car [a broken window covered in plastic and a hardly obvious discrepancy in the VIN numbers] to provide a context for what is, at best, the slightest evidence of flight, such that even if appellant were fleeing from the police, a jury reasonably could infer that she was doing so because she knew she did not have authorization to drive the vehicle--the requisite state of mind for conviction of UUV."); Grant v. U.S., 402 A.2d 405 (D.C.
1979) (fact that defendant was twice seen in the driver's seat of the recently stolen automobile held sufficient evidence for a reasonable juror to conclude beyond a reasonable doubt that the defendant had been the one who operated or drove it). The Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189), and the emergency versions of this Act that went into effect initially on June 29, 2009 (Act 18-129), specifically provide:
A person may be convicted of any combination of theft, identity theft, fraud, credit card fraud, unauthorized use of a vehicle, commercial piracy, and receiving stolen property for the same act or course of conduct; provided, that no person shall be consecutively sentenced for any such combination or combinations that arise from the same act or course of conduct. D.C. Official Code 22-3203 (2001). As a result, that statute prohibits the imposition of consecutive sentences for both the theft and the unauthorized use of a vehicle when those convictions "arise from the same act or course of conduct". This statute recognizes and slightly amends the District of Columbia Court of Appeals decisions in which it concluded that this prohibition also applies to convictions for unauthorized use of a vehicle and receiving stolen property where the two crimes involve the same "act or course of conduct." Byrd v. U.S., 598 A.2d 386 (D.C. 1991) (en banc) (overruling the Arnold line of cases which applied a fact-based analysis in determining whether multiple punishments were permissible when a single transaction was involved; rather focus must be upon the statutory elements of the two offenses). This statutory amendment did not include carjacking and UUV. See Allen v. U.S., 697 A.2d 1 (D.C. 1997) (carjacking does not merge with UUV). As to the prosecution of a vehicle passenger for unauthorized use and relevant case law, see Instruction 5.303. Cross references: No. 5.304, Failure to Return a Rental Vehicle; No. 5.303, Unauthorized Use of a Motor Vehicle--Passenger.
Page 421
157 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.303 Instruction 5.303 UNAUTHORIZED USE OF A MOTOR VEHICLE--PASSENGER
D.C. Official Code 22-3215(a), (b), and (d)(1) (2001)
The elements of the offense of unauthorized use of a motor vehicle--passenger, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] voluntarily occupied a [insert type of motor vehicle]; and 2. At the time, s/he knew that the [insert type of motor vehicle] was being used or operated without the consent of the owner [or some other person who had authority to consent on the owner's behalf]. Mere presence by a passenger in a vehicle being used or operated without the consent of the owner [or some other person who had authority to consent on the owner's behalf]; does not constitute unauthorized use of the vehicle or aiding and abetting such use by the passenger.____________________________________ Comment: A "motor vehicle" means any automobile, self-propelled mobile home, motorcycle, moped, truck, truck tractor, truck tractor with semi or full trailer, bus, or all-terrain vehicle. See D.C. Official Code 22-3215 (a); see also Gordon v. U.S., 906 A.2d 882 (D.C. 2006) (all terrain vehicle is a motor vehicle); U.S. v. Stancil, 422 A.2d 1285 (D.C. 1980) (moped is a motor vehicle). The defendant must have actual knowledge that the motor vehicle was being operated without the owner's consent to sustain his/her conviction as a passenger for unauthorized use of a motor vehicle. See
In re R.K.S., 905 A.2d 201 (D.C. 2006) (officer pursued stolen car from Maryland into the District of Columbia; both defendants were looking back toward his vehicle; after vehicle crashed, defendants fled on foot; evidence sufficient to establish both defendants knew the car was stolen); In re C.A.P., 633 A.2d 787, 792 (D.C.1993) ("In order to convict a passenger of UUV, the government must show, beyond a reasonable doubt, that the passenger was present in the vehicle with knowledge that the vehicle was being operated without the owner's consent."). Mere presence in the stolen vehicle is not sufficient to prove knowledge. See In re Davis, 264 A.2d 297 (D.C. 1970) (where evidence established only that respondent was a passenger in a stolen car, it is insufficient to support inference that he possessed guilty knowledge); Stevens v. U.S., 319 F.2d 733, 115 U.S. App. D.C. 332 (1963) (where codefendant and defendant testified that defendant did not possess guilty knowledge and government established only that defendant was a passenger, evidence insufficient to support inference that defendant possessed guilty knowledge). Compare In re C.A.P., 633 A.2d 787, 792 (D.C. 1993) (evidence sufficient to prove knowledge car was stolen when steering column had been broken open and roughly bound with duct tape, a bent ignition key that did not properly fit was protruding half-way out of the ignition, the rear vent window was smashed, and broken glass was visible on the back seat and floorboard); In re T.T.B., 333 A.2d 671 (D.C. 1975) (evidence that vehicle bore out-of-state tags, was operated erratically before it was stopped in response to signals from a police cruiser, and that when it stopped all of its occupants, including defendant, attempted to escape, held sufficient to sustain conviction of passenger) and In re D.M.L., 293 A.2d 277 (D.C. 1972) (where wires used to "hotwire" vehicle were visible from defendant's position in the backseat, evidence sufficient to support inference of guilty knowledge). A defendant must be "voluntarily" in the vehicle. Cf. Jones v. U.S., 404 F.2d 212, 216, 131 U.S. App. D.C. 212, 216 (1968) ("It scarcely brooks denial that a passenger is not to be convicted of aiding and abetting if he discovers only in the course of a 60 mile per hour chase that the vehicle is being operated without the owner's permission."). Cross references: No. 3.200, Aiding and Abetting; No. 5.302, Unauthorized Use of a Motor Vehicle; No. 5.304; Failure to Return a Rental Vehicle.
Page 423
158 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.304 Instruction 5.304 FAILURE TO RETURN A RENTAL VEHICLE
D.C. Official Code 22-3215(c) and (d)(2) (2001)
The elements of the offense of failure to return a rental vehicle, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [rented] [leased] [used] a [insert type of motor vehicle] under a written agreement; 2. The written agreement provided for the return of the motor vehicle to [specified place] at [particular time and date]; 3. The written agreement contained a clear and conspicuous warning of the penalties for failure to return the vehicle, printed in a contrasting color to the agreement, set off in a box, signed by the person who obtained the vehicle, in a space specially provided, and including the language: "WARNING--failure to return this vehicle in accordance with the terms of the rental agreement may result in a criminal penalty of up to three years in jail"; 4. There was clearly and conspicuously displayed on the dashboard of the vehicle the following warning: "NOTICE--failure to return to this vehicle on time may result in serious criminal penalties"; 5. Written demand for return of the vehicle was made on or after the time for its return specified in the agreement, by [actual delivery to the defendant] [mailing a post-paid registered or certified letter, return receipt requested, to the defendant at the address which s/he provided];
6. The written demand clearly stated that failure to return the vehicle might result in prosecution for violation of the criminal law of the District of Columbia punishable by up to three years in jail; and 7. [Name of defendant] knowingly failed to return the vehicle to [the place specified in the agreement] [an authorized agent of the complainant] within 18 days after the written demand was made. [Evidence has been introduced that [name of defendant] failed to return the vehicle for causes which were beyond his/her control. [In this connection you may consider evidence that [name of defendant] obtained the vehicle by reason of a false statement or representation of a material fact as bearing on whether or not the failure to return the vehicle was for causes beyond his/her control.]]____________________________________ Comment: The Fifth Edition simplified the language in this instruction slightly but the Committee did not intend to make any substantive changes. A "motor vehicle" means any automobile, self-propelled mobile home, motorcycle, moped, truck, truck tractor, truck tractor with semi or full trailer, bus, or all-terrain vehicle. See D.C. Official Code 22-3215 (a); see also Gordon v. U.S., 906 A.2d 882 (D.C. 2006) (all terrain vehicle is a motor vehicle); U.S. v. Stancil, 422 A.2d 1285 (D.C. 1980) (moped is a motor vehicle). The court should insert the definition that is appropriate in a particular case. The notice requirements specified in elements three and four must be met before a defendant may be convicted of this offense. The bracketed language in elements five and seven should be inserted as appropriate under the indictment and facts of the case. These alternatives are provided in the statute itself. If elements three through six are absent, as would be the case for vehicles rented outside the District of Columbia, the defendant might still be prosecuted for unauthorized use of a vehicle, D.C. Official Code 22-3215(b) (2001), if he or she falsely obtained the consent of the rental agency. See Evans v. U.S., 417 A.2d 963 (D.C. 1980) (defendant gave false name and addresses to procure rental agreement); see generally Instruction No. 5.302, Unauthorized Use of a Vehicle. By its own terms, this offense does not apply to vehicles obtained pursuant to retail installment contracts as defined in D.C. Official Code 50-601(9) (2001). Subsection (c)(4) of the section explicitly provides for the defense of failure to return for causes beyond the defendant's control. As with most defenses, the defendant has the burden of raising the defense and of going forward, but the government, nevertheless, retains the ultimate burden of proof. See Extension of Comments on Bill No. 4-133: The District of Columbia Theft and White Collar Crime Act of 1982, submitted by Councilmember David A. Clarke, at 33-34 (available on microfilm at the District of Columbia Legislative Services Office) [hereinafter Extension of Comments]. The same subsection of the Act provides that evidence of false statement or representation of a material fact by the defendant to obtain the vehicle shall be admissible on the issue of whether the failure to return was for causes beyond the defendant's control. This includes misrepresentations of name, residence, employment, or operator's license. Cross references: No. 5.302, Unauthorized Use of a Vehicle; No. 5.303, Unauthorized Use of a Motor Vehicle--Passenger.
Page 425
159 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.305 Instruction 5.305 TRAFFICKING IN STOLEN PROPERTY
To establish the offense of trafficking in stolen property, the government must prove beyond a reasonable doubt [each of the alleged separate acts of trafficking in stolen property] [at least two of the alleged acts of trafficking in stolen property]. Proof of only one of these alleged acts is not sufficient to prove the offense of trafficking in stolen property. The elements of a single act of trafficking in stolen property, each of which the government must prove beyond a reasonable doubt, are that: 1. [[Name of defendant] sold, pledged, transferred, distributed, or otherwise disposed of property of another person in exchange for receiving something of value] [[Name of defendant] bought, received, or possessed property with the intent to sell, pledge, transfer, distribute, or otherwise dispose of it in exchange for something of value]; 2. Before s/he [sold, pledged, transferred, distributed, or otherwise disposed of the property], [bought, received, or possessed property] s/he knew or had reason to believe that the property was stolen. [The property need not have been actually stolen if the defendant believed or had reason to believe it had been stolen]; and 3. The property had some value. The government need not prove that [name of defendant] [made] [intended to make] a profit in order to prove the first element.
"Property" means anything of value. [Insert further instruction on property, from No. 3.106, if necessary.] [Insert Instruction 3.105, Proof of Value, if necessary.] [Insert Instruction 3.101, Proof of State of Mind.] You must find that the alleged acts or incidents were separate and not part of the same transaction. Each act or incident must have occurred at a different time and have involved different items of property. Finally, you should consider the evidence separately as to each alleged incident or act. You must not allow evidence as to one incident or act to affect your consideration of any other act or incident. You must find that the government proved the elements of at least two alleged acts beyond a reasonable doubt before you may return a verdict of guilty.____________________________________ Comment: This instruction includes the provision that the property need not have been stolen. See German v. U.S., 525 A.2d 596, 605 (D.C. 1987) ("The trafficking statute clearly proscribes the purchase of property if a person knows or has reason to know that it has been stolen even if the property was not in fact stolen."). The court should make a selection from the bracketed language in the first element of the offense and from the first set of bracketed language in the second element, in order to address the specific facts of the case. The final bracketed language in the second element and its definition should be used where the property is not stolen or where otherwise appropriate. The Fifth Edition deleted what was the third element in the Fourth Edition which provided: "That the defendant acted with the intent to disobey the law or in conscious disregard of the law." The Committee concluded that the statute did not require that the defendant must have specifically intended to disobey the law or acted in conscious disregard of it. It was sufficient that the defendant knew or had reason to believe that the good were stolen and intended to sell or dispose of them. In German, which considered a constitutional attack on the trafficking statute, the court stated that the "reason to know" standard in the statute was not unduly vague in view of the requirement that the defendant must have intended to deal in stolen goods. 525 A.2d at 606 . See also DiGiovanni v. U.S., 580 A.2d 123, 125-26 (D.C. 1990) (in considering the receiving stolen property statute, which also allows a finding of guilt using the objective standard of "reason to believe," the court upheld an instruction that included the statutory language that the government was required to prove that the defendant had the intent to deprive another of the right to the property or the benefit of the property). With respect to the definition of property, the Committee recommends no further definition than "anything of value," unless under the facts the jury needs further explanation. Cross reference: No. 5.301, Receiving Stolen Property and Attempted Receipt of Stolen Property.
Page 427
160 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.306 Instruction 5.306 COMMERCIAL PIRACY
The elements of the offense of commercial piracy, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [copied] [possessed] [obtained] [insert name or type of recording of a [sound recording] [live performance]] [copies of proprietary information]; 2. At the time s/he did so, s/he knew or had reason to believe that the [insert name or type of recording of a [sound recording] [live performance]] [copy] was made without the consent of the owner; and 3. [Name of defendant] [copied] [possessed] [obtained] [made] the [insert name or type of recording of a [sound recording] [live performance]] [copies] intending to sell them or to derive commercial gain or advantage from them, or to allow another person to do so. [Proprietary information is information whose primary commercial value may diminish if its availability is not limited. [The term includes, but is not limited to, customer lists, mailing lists, formulas, recipes, computer programs, unfinished designs or works of art, processes, programs, or inventions.]] To establish the second element of the offense, you must find that [name of defendant] knew that he was acting without the consent of the owner, or that he had reason to believe, taking into account all the circumstances at the time, that the owner had not consented.
For the purposes of this element, the "owner" of the [phonorecord] [proprietary information] is the person who owns the property involved in its original state or form, or the exclusive holder of a license to reproduce and distribute the [phonorecords] [copies]. [In the case of a live performance the owner is the performer or performers.] With respect to the third element, you are cautioned that [name of defendant] need not have actually gained a commercial benefit from his/her actions. To establish this element it is only necessary that s/he intended to sell the [phonorecords] [copies] or to derive a commercial gain for himself/herself or someone else. [If the government has proved that [name of defendant] possessed five or more unauthorized phonorecords either of the same sound recording or of a live performance, you may, but are not required to, conclude that s/he intended to sell them or allow a third person to do so.] [Insert No. 3.101, Proof of State of Mind.]____________________________________ Comment: This offense was created as part of the D.C. Theft and White Collar Crimes Act of 1982. The instruction follows the statutory language, although some definitions that were unwieldy in the statute have been simplified. Care must be exercised in making consistent selections from among the bracketed terms. The options in the first element list the predicate actions under the statute. Rather than use the term "phonorecord," the Fifth Edition permits the court to insert the appropriate term. The statute defines a "phonorecord" as:
material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed. D.C. Official Code 22-3214(a)(3). Definitions of "proprietary information," and "owner" that are included have been simplified. Protection of copyright in its various forms is generally a federal matter, see Dowling v. U.S., 473 U.S. 207, 220 (1985) , but this provision differs substantially from the most closely analogous federal statute, 18 U.S.C. 506(a). Federal decisions are instructive, however. The government need not negate every possible scenario of legitimate procuring of consent, see United States v. Whetzel, (1978), 589 F.2d 707, 200 U.S.P.Q. 193 . Evidence that the defendant has sold a small number of items, U.S. v. Steele, 785 F.2d 743 (9th Cir. 1986) , or that the subject property was kept on business premises, U.S. v. Cross, 816 F.2d 297 (7th Cir. 1987) , may allow an inference that the accused intends to employ them for "commercial gain." See generally U.S. v. Wise, 550 F.2d 1180 (9th Cir. 1977) (setting forth elements of analogous federal offense). The bracketed portion of the third paragraph expresses the statutory presumption of intent found in D.C. Official Code 22-3214. The Committee has phrased this as a permissive presumption to avoid the constitutional infirmity of directing a verdict on an essential element. See Sandstrom v. Montana, 442 U.S. 510, 521-24 (1979) . Cross references: Nos. 5.301 et seq., Theft-Related Offenses.
Page 429
161 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.307 Instruction 5.307 SHOPLIFTING
The elements of the offense of shoplifting, each of which the government must prove beyond a reasonable doubt, are that: 1. [[Name of defendant] concealed or took possession of [insert description of property] of [name of complainant] that was offered for sale]; [[Name of defendant] removed or altered the price tag, serial number or other identification mark imprinted on or attached to [insert description of property] of [name of complainant] that was offered for sale]; [[Name of defendant] transferred [insert description of property] of [name of complainant], which was offered for sale, from the container in which it was displayed or packaged to any other display container or sales package]; 2. S/he did so voluntarily and on purpose, not by mistake or accident; 3. The property had some value; and 4. S/he intended to [take or make use of property without authorization or right and without complete payment] [to deceive or cheat the owner of the value of the property]. ____________________________________
Comment: Even though shoplifting is a non-jury demandable offense, the elements may have to be given to the jury if shoplifting is a lesser included offense. See Simmons v. U.S., 554 A.2d 1167, 1171-72 n.11 (D.C. 1989) (suggesting that the standard instructions be drafted for non-jury demandable offenses that might be given as lesser included offenses). Unlike most other crimes defined in the Theft and White Collar Crimes Act of 1982, shoplifting limits the concept of "property of another" to "personal property" that was "offered for sale." See, e.g., Harris v. U.S., 602 A.2d 1140, 1142 (D.C. 1992) (clothes held in stockroom close to customer area and intended for prompt availability to customers when needed were "offered for sale"). "Property" is defined as "anything of value." D.C. Code 22-3801(3). To prove that property was "property of another" the government need only prove that "the owner ... was someone other than the defendant." Carmon v. U.S., 498 A.2d 580, 582-83 and n. 4 (D.C. 1985) . See also Baldwin v. United States, 521 A.2d 650 (D.C. 1987) (proof that defendant took dresses with price tags out of store, then returned and left them in store, sufficient to prove property of another); Alston v. U.S., 509 A.2d 1129, 1130-31 (D.C. 1986) (government need not prove that property was not property as to which owner had only security interest, nor prove that department store was licensed and owned the property). The Committee has combined the definition of "property" and "property of another" in one definition, which, in the Committee's judgment, will suffice in the ordinary case. Some cases may need further instruction on these concepts. For further discussion see comment to No. 3.106, Property or Property of Another--Defined. The mens rea required for shoplifting is either the intent to appropriate without complete payment or the intent to defraud the owner of the value of the property. D.C. Official Code 22-3213(a) (2001). The definition of "intent to defraud" is taken substantially from 1A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 16.07 (5th ed. 2000). The definition of "appropriate" is from D.C. Official Code 22-3201(1) (2001). The specific proscribed conduct must also be done "[k]nowingly," within the context of the intent to appropriate, D.C. Official Code 22-3213(a)(1-3) (2001). For that reason the Committee used the same definition that elsewhere describes "knowingly and intentionally"-- i.e., "voluntarily and on purpose, not by mistake or accident." Cross references: No. 3.101, Proof of State of Mind; No. 3.105, Proof of Value; No. 3.106, Property Anything of Value, Property of Another; No. 5.300, Theft.
Page 431
162 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods a. Superior Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.308 Instruction 5.308 TAKING PROPERTY WITHOUT RIGHT
The elements of taking property without right, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] took the property of another; 2. S/he lacked authority from the rightful owner to take the property; 3. S/he carried the property away [the slightest moving of an object from its original location may satisfy this element]; and 4. S/he acted voluntarily and on purpose, and not by mistake or accident. "Property of another" means anything of value that was owned by someone other than the defendant. [Insert further definition of "Property of Another" from No. 3.106, Property or Property of Another--Defined, where necessary or useful under the circumstances of the case.]____________________________________ Comment: In Simmons v. U.S., 554 A.2d 1167, 1171 (D.C. 1989) , the court held that the jury must determine a non-jury-triable offense where that offense is a lesser included offense of an offense tried to a jury, and where the lesser included offense instruction is warranted by the evidence. The court also suggested that
the standard instructions include instructions on common non-jury-triable offenses, such as taking property without right, which are lesser included offenses of jury-triable offenses. Id. at 1171-12 n.11 . In Tibbs v. U.S., 507 A.2d 141, 144 (D.C. 1986) , the court stated the elements of taking property without right as follows: "[T]hat the defendant (1) took and (2) carried away (3) the property of another, as defined in section 22-3801 [D.C. Official Code 22-3201 (2001)], (4) without right to do so." See also Wormsley v. U.S., 526 A.2d 1373, 1375 (D.C. 1987) . The Committee used these elements, but added another element, number four, to describe the general intent required for this offense. Id. at 143 ; Fogle v. U.S., 336 A.2d 833, 835 (D.C. 1975) ; Richardson v. U.S., 403 F.2d 574, 576, 131 U.S. App. D.C. 168, 170 (1968) . The Fifth Edition modified the wording in the fourth element to simplify the language and make it consistent with other instructions. Otherwise, the Committee made no other substantive changes. The Committee combined elements one and three in Tibbs into element one. The Committee believed that the concept of "take" is sufficiently clear to the layperson so as not to require further elaboration. In Craig v. U.S., 490 A.2d 1173, 1177 (D.C. 1985) , the court stated that to meet the "without right" element, "the government must ... prove beyond a reasonable doubt that persons accused of [this offense] lacked authority from the rightful owner of the property." See also Fussell v. U.S., 505 A.2d 72, 73 (D.C. 1986) (property cannot be taken without right if it "is taken with the knowledge and consent of the owner, or one authorized to consent on his behalf"). Rather than using the term "without right" in the element, and then defining it, the Committee believed it useful and potentially less confusing simply to provide for the jury the definition as stated in Craig, without using the term. Tibbs makes clear that the government need not prove that the defendant took the property from the possession of anyone. 507 A.2d at 144 . See also Baggett v. U.S., 528 A.2d 444, 445 (D.C. 1987) . "Property" is defined as "anything of value." D.C. Official Code 22-3201(3) (2001). To prove that property was "property of another" the government need only prove that "the owner ... was someone other than the defendant." Carmon v. U.S., 498 A.2d 580, 582-83 and n. 4 (D.C. 1985) . See also Baldwin v. U.S., 521 A.2d 650 (D.C. 1987) (proof that defendant took dresses with price tags out of store, then returned and left them in store, sufficient to prove property of another); Alston v. United States, 509 A.2d 1129, 1130-31 (D.C. 1986) (government need not prove that property was not property as to which owner had only security interest, nor prove that department store was licensed and owned the property). The Committee combined the definition of "property" and "property of another" into one definition, which, in the Committee's judgment, will suffice in the ordinary case. Some cases may need further instruction on these concepts. For further comment, see comment to No. 3.106, Property or Property of Another--Defined. Simmons reiterates law from prior cases stating that the asportation element may be satisfied by showing "the slightest moving of an object from its original location." 554 A.2d at 1171 n.9 , and cases cited. If there is an issue regarding the "carrying away" element, the judge can use the bracketed language, taken directly from Simmons. Taking property without right is not a lesser included offense of carjacking because it contains the element of asportation (i.e., carrying away), whereas carjacking does not. Moorer v. U.S., 868 A.2d 137, 141 (D.C. 2005) . Cross references: No 2.320, Inference from the Possession of Recently Stolen Property; No. 3.105, Proof of Value; No. 3.106, Property or Property of Another--Defined; No. 5.300, Theft; No. 5.307, Shoplifting.
Page 433
163 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.350 Instruction 5.350 RECEIVING STOLEN GOVERNMENT PROPERTY
18 U.S.C. 641
The elements of the offense of receiving stolen government property, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] received, concealed, or retained property of the United States; 2. S/he did so knowing that the property had been [stolen] [embezzled]; 3. S/he intended to possess the property for his/her own use or gain; and 4. This property [was of some value] [had a value of more than $1,000]. ____________________________________ Comment: The first and second elements reflect that it is only necessary that the government prove that the property belonged to the United States and that the defendant knew that it was stolen. The government need not prove that the defendant knew that the property received had been stolen or embezzled "from the United States." See U.S. v. Baker, 693 F.2d 183, 186, 224 U.S. App. D.C. 68 (1982) ("It is now well established that the statutory requirement that the stolen property belong[] to the government merely furnishes the basis for federal jurisdiction and that defendant's knowledge of this jurisdictional fact is irrelevant."). Thus, if an issue arises as to the defendant's requisite knowledge of ownership, it is appropriate to
instruct the jury that it is not necessary that the government prove that the defendant knew that the property belonged to the United States but only that the property in fact belonged to the United States and that the defendant knew that it was stolen. The alternative bracketed language in the fourth element of the offense should be selected depending upon whether the defendant is charged with a felony or a misdemeanor. Where there is an issue as to the value of the property received, concealed or retained, and it is appropriate to give a lesser-included offense instruction with reference to value, Instruction 3.105, Proof of Value, and Instruction 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment, should be given. For cases discussing the element of value, see the comment to Instruction 3.105. See generally Mudd v. U.S., 798 F.2d 1509, 255 U.S. App. D.C. 78 (1986) (evidence sufficient if defendant retained the equipment with the knowledge that it was stolen; he need not know that it was stolen when he took possession of it). Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment; No. 3.101, Proof of State of Mind; No. 3.105, Proof of Value; No. 5.301, Receiving Stolen Property and Attempted Receipt of Stolen Property.
Page 435
164 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.351 Instruction 5.351 THEFT OF UNITED STATES GOVERNMENT PROPERTY
18 U.S.C. 641
The elements of the offense of theft of United States government property, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] stole [money] [property] intending to deprive the owner of the use or benefit of the [money] [property]; 2. The [money] [property] belonged to the United States; and 3. The property taken [was of some value] [had a value of more than $1,000]. ____________________________________ Comment: Knowledge that the stolen property belonged to the United States is not an element of this offense. See Baker v. U.S., 429 F.2d 1278 (9th Cir. 1970) . The bracketed language in elements one and two should be selected depending upon what the defendant is accused of stealing. The alternative bracketed language in the third element of the offense should be selected depending upon whether the defendant is charged with a felony or misdemeanor. Where there is an issue as to the value of the property taken and it is appropriate to give a lesser included offense instruction with reference to value, Instruction 3.105, Proof of Value, and Instruction 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment, should be given.
Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment; No. 3.101, Proof of State of Mind; No. 3.105, Proof of Value.
Page 437
165 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.352 Instruction 5.352 THEFT FROM INTERSTATE SHIPMENT
18 U.S.C. 659
The elements of the offense of theft from an interstate shipment, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] took or carried away [the goods described in the indictment]; 2. Such goods, at the time of the theft, were moving in or were part of an interstate shipment; 3. [Name of defendant] took or carried away such goods without the right to do so, intending to deprive the owner of the use of benefit of the goods; and 4. The goods taken [were of some value] [had a value of more than $1,000]. [Property is in interstate commerce if its movement originates in one state and passes through another state. The District of Columbia is considered a state for this purpose.] [The interstate character of the shipment begins when the property is set aside for interstate shipment and comes into the possession of those who are assisting its shipment in interstate transportation, and continues until the property arrives at its destination and is delivered.]____________________________________ Comment: Most federal appellate courts have held that it is not necessary to allege or prove the type of
instrumentality as long as it is clear that the goods were part of an interstate shipment when they were stolen. See, e.g., U.S. v. Parker, 749 F.2d 628, 632 (11th Cir. 1984) ; Dunson v. U.S., 404 F.2d 447, 448-49 (9th Cir. 1968) ; Manual of Model Criminal Jury Instructions for the Ninth Circuit, No. 8.12, p. 136 (1992 ed.). The bracketed language in the fourth element of the offense should be given when the defendant is charged with a felony. Where there is an issue as to the value of the property, and it is appropriate to give a lesser included offense instruction with reference to value, Instruction 3.105, Proof of Value, and 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment, should be given. For cases discussing the element of value, see the comment to Instruction 3.105. Some federal circuits have incorporated the definition of value from 18 U.S.C. 641 for purposes of 659. See, e.g., U.S. v. Watson, 570 F.2d 282 (8th Cir. 1978) ("value" for purposes of this section is defined in 18 U.S.C. 641); U.S. v. Payne, 467 F.2d 828 (5th Cir. 1972) ; U.S. v. Dandridge, 437 F.2d 1324 (7th Cir. 1971) ; Russell v. U.S., 288 F.2d 520 (9th Cir. 1961) . Section 641 defines value as "face, par, or market value, or cost price, either wholesale or retail, whichever is greater." The bracketed language in the final paragraph should be given if these are issues in any particular case. As to the definition of "interstate commerce," see 18 U.S.C. 10; McElroy v. U.S., 455 U.S. 642 (1982) . Cross references: No. 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment; No. 3.100, Defendant's State of Mind--Note; No. 3.105, Proof of Value.
Page 439
166 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.353 Instruction 5.353 PURCHASE OR RECEIPT OF GOODS STOLEN FROM INTERSTATE SHIPMENT
18 U.S.C. 659
The elements of this offense, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [bought] [received] [had in his/her possession] [describe goods] knowing that these goods had been embezzled or stolen; 2. These goods had been embezzled or stolen from interstate commerce; and 3. These goods [were of some value] [had a value of more than $1,000]. [It is necessary that the property stolen either have been moving in or been part of an interstate shipment at the time of the theft. Property is in interstate commerce if it moves from one state and passes through another state. The District of Columbia is considered a state for this purpose.] [The interstate character of a shipment begins when the property is set aside for interstate shipment and comes into the possession of those who are assisting its shipment in interstate transportation, and continues until the property arrives at its destination and is delivered.] [It does not matter whether the defendant knew that the goods were being shipped from one state to another when they were stolen.]____________________________________ Comment:
Some of the language in this instruction has been bracketed so that the court need give only those portions which are appropriate given the evidence presented. The alternative bracketed language in the third element of the offense should be selected depending upon whether the defendant is charged with a felony or a misdemeanor. Where there is an issue as to the value of the property received or possessed by the defendant and it is appropriate to give a lesser included offense instruction with reference to value, Instruction 3.105, Proof of Value, and Instruction 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment, should be given. For cases discussing the element of value, see the comment to Instruction 3.105. With reference to the definition of "interstate commerce," see 18 U.S.C. 10. The first sentence in the next to last paragraph should be given if there is an issue concerning whether the goods were in interstate commerce. Similarly, the last sentence in that paragraph should also be given only if it is an issue in the case. The last bracketed sentence has been added if the defendant tries to claim that s/he did not know the goods were traveling in interstate commerce. See U.S. v. Sclamo, 578 F.2d 888, 891 (1st Cir. 1978) ; U.S. v. Viruet, 539 F.2d 295, 297 (2d Cir. 1976) . Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 2.401, Where Jury Is to Be Charged on a Lesser Included Offense of a Count in an Indictment; No. 3.104, Possession--Defined; No. 3.105, Proof of Value.
Page 441
167 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.354 Instruction 5.354 THEFT FROM MAILS
18 U.S.C. 1708
The elements of the offense of theft from the mails, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant], without authority, took a [letter] [package] [or other appropriate description] from a [mailbox] [mail carrier] [or other appropriate description]; and 2. S/he intended to deprive the person rightfully entitled to receive the [letter] [package] [or other article] of it and to convert and appropriate it to his/her own use. ____________________________________ Comment: Portions of the instruction are bracketed so that the court can adapt the instruction depending upon the evidence presented in the case. This instruction is appropriately used when the defendant is charged with theft from the mails as defined in the first two paragraphs of 18 U.S.C. 1708. See Barnes v. U.S., 412 U.S. 837 (1973) (inferences which may be drawn from possession of stolen mail); U.S. v. Daughtry, 639 F.2d 818, 205 U.S. App. D.C. 296 (1981) (office is "other authorized depository"); U.S. v. Iverson, 637 F.2d 799, 205 U.S. App. D.C. 253 (1980) , modified, 648 F.2d 737, 208 U.S. App. D.C. 364 (1981) ("an item which is properly addressed but misdelivered by the postal authorities remains 'in the mail' for section 1708 purposes when it is removed from a mail depository,
even if the intent to steal is formed at a later date"). Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 5.355, Unlawful Possession of Stolen Mail.
Page 443
168 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.355 Instruction 5.355 UNLAWFUL POSSESSION OF STOLEN MAIL
18 U.S.C. 1708
The elements of the offense of unlawful possession of stolen mail, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] possessed [mail matter as described in the indictment], without right to such possession; 2. This [mail matter as described in the indictment] was stolen by someone from the United States mail; and 3. At the time [name of defendant] had possession of this [mail matter as described in the indictment], s/he knew that it had been stolen. ____________________________________ Comment: Rather than define all the possible kinds of "mail matter" this instruction merely refers to the specific description included in the indictment. See 18 U.S.C. 1708 for a listing of what constitutes "mail matter." What constitutes the United States mail for purposes of element two is also listed in the statute. If there is a dispute about whether the item was stolen from the United States mail, see 1708 (list includes mail, post office, or station thereof, letter box, mail receptacle, mail route or other authorized depository for mail matter, or from a letter or mail carrier; from, upon or adjacent to a collection box or
the authorized depository of mail matter where it has been left for collection). See also U.S. v. Nolan, 784 F.2d 496, 498 (3d Cir. 1986) (floor of common hallway in a two-unit dwelling was held to be an "authorized depository"). In addition, the definition of "possession" is no longer automatically included in the instruction. Instruction 3.104, Possession--Defined, may be inserted at the end of the instruction if there is an issue concerning whether the defendant possessed the mail. See generally Barnes v. U.S., 412 U.S. 837, 848 (1973) (government need prove only that the defendant possessed stolen mail knowing that it had been stolen--not that it had been stolen from the mails); U.S. v. Daughtry, 639 F.2d 818, 205 U.S. App. D.C. 296 (1981) (House of Representatives post office was "other authorized depository for mail matter" within the meaning of this statute); U.S. v. Iverson, 637 F.2d 799, 205 U.S. App. D.C. 253 (1980) (item which is properly addressed but misdelivered by postal authorities remains "in the mail" for purposes of this statute). Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 3.104 Possession--Defined.
Page 445
169 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 3. Theft and Receipt of Stolen Goods b. Federal Court Offenses 1-V Criminal Jury Instructions for DC Instruction 5.356 Instruction 5.356 INTERSTATE TRANSPORTATION OF STOLEN VEHICLES (DYER ACT)
18 U.S.C. 2312
The elements of the offense of interstate transportation of a stolen motor vehicle, each of which the government must prove beyond a reasonable doubt, are that: 1. The vehicle was stolen; 2. After the vehicle was stolen, [name of defendant] [transported it] [caused it to be transported] in [interstate] [foreign] commerce; and 3. At the time s/he [transported it] [caused it to be transported], s/he knew that it was stolen. [Transportation in interstate commerce means transportation from one State, territory, or the District of Columbia to another State, territory, or the District of Columbia.] [Transportation in foreign commerce means transportation from a State, territory, or the District of Columbia to a foreign country or from a foreign country to any State, territory, or the District of Columbia.] "Stolen" means taking or using a motor vehicle without the right to do so with the intent to deprive the owner of the rights and benefits of ownership. [It is not necessary that the original taking of the vehicle have been unlawful. Even if the original possession of the vehicle was lawful, the vehicle is considered "stolen" if the person acquiring possession afterwards formed the intent to deprive the owner of the rights and benefits of ownership and converted the vehicle to his/her own use.]
It is not necessary that [name of defendant] be the person who originally stole the vehicle.____________________________________ Comment: What evidence is presented in any particular case should determine which bracketed portions are given. Where evidence is introduced that the defendant in good faith believed that s/he owned some interest in the motor vehicle in question or that s/he had the right to possession of the motor vehicle at the time of the alleged offense, the jury should be instructed that if they so find, then they must acquit the defendant. See 18 U.S.C. 2311 (defining motor vehicle); 18 U.S.C. 10 (defining interstate commerce). Cross references: No. 2.320, Inference from the Possession of Recently Stolen Property; No. 5.302, Unauthorized Use of a Motor Vehicle.
Page 447
170 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 4. Scope 1-V Criminal Jury Instructions for DC Instruction 5.400 Instruction 5.400 MALICIOUS DESTRUCTION OF PROPERTY
The elements of the offense of malicious destruction of property, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [damaged or destroyed] [attempted to damage or destroy] property, that is, a [door, house, garage, etc.]; 2. The property was not his/her property; 3. S/he acted voluntarily and on purpose, and not by mistake or accident; 4. [Name of defendant] intended to damage or destroy the property or was aware that his/her conduct created a substantial risk of harm to that property but engaged in that conduct nonetheless; [and] 5. The property that was [damaged] [destroyed] had [a value of [$200] [$1,000] or more] [some value][.] [and;] [6. [Name of defendant] acted without mitigation.] [In measuring the value of property that has been damaged or destroyed, you should determine the fair market value of the property as it was immediately before the damage occurred. [Where only a portion of the property has been injured, i.e., damaged or destroyed, the value of the damaged property is measured by the reasonable cost of repairs necessary to restore the property to the condition it was in immediately before the injury, damage or destruction occurred. In no
event, however, may the reasonable cost of repairing the damaged property exceed the fair market value of the entire property as it was before it was damaged.] The fair market value of the property is the price which a purchaser who is willing but not obliged to buy would pay an owner who is willing but not obliged to sell, considering all of the uses to which the property is adapted and may reasonably be applied, at the time and place where the property was [damaged] [destroyed]. You may not speculate or guess at the value of the property. Your determination must be based on the evidence presented.] [Mitigating circumstances [can exist in two situations. One occurs] [occur] when a person acts in the heat of passion caused by adequate provocation. Heat of passion includes such emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on the part of others that would cause an ordinary, reasonable person in the heat of the moment to lose his/her self-control and act on impulse and without reflection. For provocation to be considered "adequate," the person's response must not be entirely out of proportion to the seriousness of the provocation. An act of violence or an immediate threat of violence may be adequate provocation, but mere words, no matter how offensive, are never adequate provocation. [The provocation must be such as would provoke a reasonable sober person. Therefore, if a person was provoked simply because s/he was intoxicated, and a sober person would not have been provoked, the provocation would not be considered as "adequate."]] [Mitigating circumstances also occur when a person actually believes that s/he is in danger of serious bodily injury, and actually believes that the use of force that was likely to cause serious bodily harm was necessary to defend against that danger, but one or both of those beliefs are not reasonable. [Thus, mitigating circumstances are similar to self-defense, which is a complete defense to the charges, but different in that self-defense requires that person's beliefs about the danger and the need to respond to it be reasonable.]]____________________________________ Comment: This instruction seeks to embody and reconcile the holdings in the following principal cases: Charles v. U.S., 371 A.2d 404 (D.C. 1977) ; Carter v. U.S., 531 A.2d 956 (D.C. 1987) ; Thomas v. U.S., 557 A.2d 1296 (D.C. 1989) ; and Comber v. U.S., 584 A.2d 26 (D.C. 1990) (en banc). The Criminal Code Amendment Act of 2010, which went into effect as emergency legislation on January 18, 2011, changed the felony threshold to "$1,000 or more". The Committee has left "[$200]" in element 5 for offenses which occurred before that date. It is clear from the cases that the malice involved in malicious destruction of property is the same as the malice needed for murder. Carter, 531 A.2d at 963 ; Thomas, 557 A.2d at 1299 . In Comber, the court discussed in detail the elements of malice needed to prove murder, and the Committee has therefore consulted Comber, as well as cases involving destruction of property, in defining malice. The 1993 edition explained malice consistent with Thomas and Comber. Both cases make clear that malice includes both an intent to harm, and a conscious disregard of risk. As to the latter, Comber requires an " 'extreme' " risk, 584 A.2d at 42 and no. 19. Thomas and the other destruction of property cases prefer " 'known and substantial," Carter, 531A.2d at 962, Charles, 371 A.2d at 411 , or "plain and strong likelihood," Thomas, 557 A.2d at 1305 n. 17 , suggesting the standard instruction use the definition in Perkins, Criminal Law, 769-70 (2d ed. 1969). See Thomas, 557 A.2d at 1299 , quoting Perkins. The Committee has chosen both definitions from the destruction-of-property cases, one in the element and the other in the explanatory paragraph, which is intended to focus the jury on the subjective element of that aspect of malice not involving specific intent. The Committee has omitted the terms " 'wanton and willful" as not adding anything to the definition of malice. This decision follows the lead of Comber, 584 A.2d at 42 n. 19 , which, in stating the elements of malice, also omits these words. Also in accordance with Comber, 584 A.2d at 42 n. 18 , the Committee has omitted the word "malice" altogether. See generally Gonzalez v. U.S., 859 A.2d 1065, 1068 (D.C. 2004) (" 'it is clear, contrary to the trial court's
determination, that malice is an element of malicious destruction of property' "); Richardson v. U.S., 698 A.2d 442 (D.C. 1997) (citing with approval the "conscious disregard" language of the malice instruction). The Committee simplified the language somewhat in element four for the Fifth Edition. Element three is designed to convey the notion of general intent as requiring a voluntary act, consistent with Carter. The language clarifies for the jury the fact that voluntarily doing an act (general intent), and the actor's state of mind as to the act's consequences (malice), are separate though related concepts. Carter, 531 A.2d at 962 . This affects the "theoretical" reconciliation the court contemplated in Thomas, 557 A.2d at 1305 n. 17 , between the Carter holding that destruction of property requires only general intent, and the Thomas holding that the malice requirement deals with a defendant's "subjective" understanding, and not the understanding of a hypothetical reasonable person. Following the court's advice in Thomas, 557 A.2d at 1305 n. 17 , the explanatory language in the 1993 edition replaced traditional but confusing terms such as " 'bad or evil purpose," along with references to "intent" and the statement that "malice may be inferred from the intentional wrongdoing." Carter, 531 A.2d at 961 . Although the government must prove the defendant's own state of mind to establish his "conscious disregard" of the likely results of his acts, arguments about the objective foreseeability of harm may still be utilized by the government for the jurors' consideration in determining whether the defendant did or did not act with a "conscious disregard" of known or substantial risks of harm that are likely to result from his acts. Carter held unequivocally that this crime is one of general intent only and that voluntary intoxication was neither a defense thereto nor could it be used as an "adjunct" to the defense of "accident." This instruction does not advise a jury how to decide causation issues because the ordinary destruction of property case will not raise such questions. However, where a defendant challenges the causal link between his actions and the harm proved, the trial court must guide the jury with instructions addressed to the specific facts alleged. Comber makes clear that malice also includes the absence of justification, excuse or mitigation. 584 A.2d at 40-41 . It also, makes clear, however, that this aspect of malice requires instruction " "only where there is some evidence of one or more of these circumstances in the case," generated either in the government or defense case. Id. at 41 n. 17 . Where there is such evidence, however, the instruction must be given because the government needs to prove the absence of justification, excuse or mitigation. The second element of the instruction includes the requirement that the property not be owned by the defendant. While this is generally true, a person may be found guilty of destruction of property for destroying jointly held property. See Jackson v. U.S., 819 A.2d 963 (D.C. 2003) (defendant convicted of malicious destruction of property for damaging the door of a house he co-owned with his wife when the wife locked the door and refused to allow him to enter). For destruction of property cases, the Committee has included only an instruction on mitigation, which involves heat of passion caused by adequate provocation. See Brown v. U.S., 584 A.2d 537 (D.C. 1990) . Under the holding of that opinion, where sufficient evidence of adequate provocation is introduced, the defense is entitled to an instruction which places on the government the burden of proof beyond a reasonable doubt that the defendant acted without adequate provocation. Under Brown, there are no categories of "adequate provocation" that the defense must satisfy; all it must do is present sufficient evidence of conduct that " 'would cause an ordinary, reasonable person to lose his or her self-control." Id.
at 540-43 . The bracketed instruction in element number six, together with the bracketed explanatory paragraph drawn from Brown. id. at 543 , should be used whenever sufficient evidence of provocation is presented. The Committee has not included language on justification (normally self-defense or defense of others) or excuse because these issues do not appear common in destruction of property cases. Where there is evidence of self-defense or other recognized justification or excuse, the judge will need to draft an appropriate instruction. For a further discussion of Comber and malice, see the comment to Nos. 4.201 and 4.202. Cross references: No. 4.120, Cruelty to Children; Nos. 4.200-4.214, Homicide; No. 5.100, Arson.
Page 451
171 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 4. Scope 1-V Criminal Jury Instructions for DC Instruction 5.401 Instruction 5.401 UNLAWFUL ENTRY
D.C. Official Code 22-3302 (2001) A. ENTRY WITHOUT AUTHORITY The elements of this offense, each of which the government must prove beyond a reasonable doubt, are that: For an offense committed on or after August 6, 2009, the first element of Part A should be as follows: 1. [Name of defendant ] entered or attempted to enter [a private dwelling, building, or other property or part of such private dwelling, building, or other property] [a public building or other property or part of such public building or other property] [a restricted area of [name of public building]];
For an offense committed before August 6, 2009, the first element of Part A should be as follows: 1. [Name of defendant] entered, or attempted to enter, [name of public or private dwelling, building, or other property, or part of such dwelling, building, or other property] [a restricted area of [name of public or semi-public building]]; 2. [Name of defendant] entered, or attempted to enter the property voluntarily, on purpose, and not by mistake or accident; 3. S/he did so without lawful authority; 4. The entry or attempt to enter was against the will of the [lawful occupant] [or] [the person lawfully in
charge of the premises]; and 5. [Name of defendant] knew or should have known that s/he was entering against that person's will.
[You have heard evidence that [Name of defendant ] believed s/he had a right to enter or be present in the area in question. One who enters a restricted area with a good faith belief that s/he is entering with lawful authority is not guilty of unlawful entry. Thus, you cannot find [Name of defendant ] guilty of unlawful entry unless you are convinced beyond a reasonable doubt that s/he did not have a good faith belief of his/her lawful authority to enter the area.] [You may, but you are not required, to presume that [Name of defendant ] entered the property against the will of [name of owner or person in lawful possession] if you find that [the property was vacant and boarded up or otherwise secured in a manner that conveyed that it was vacant and not to be entered] [displayed a no trespassing sign]]. B. REMAINING ON PREMISES WITHOUT AUTHORITY The elements of this offense, each of which the government must prove beyond a reasonable doubt, are that: For an offense committed on or after August 6, 2009, the first element of Part B should be as follows: 1. [Name of defendant ] was present in [a private dwelling, building, or other property or part of such private dwelling, building, or other property] [a public building or other property or part of such public building or other property] [a restricted area of [name of public building]];
For an offense committed before August 6, 2009, the first element of Part B should be as follows: 1. [Name of defendant ] was present in a public or private dwelling, building, or other property, or a part of such dwelling, building, or other property; 2. S/he was directed to leave the property by [name of complainant] ; 3. [Name of complainant] was the lawful occupant or person lawfully in charge of the property; 4. At the time [Name of defendant ] was directed to leave the property, s/he did not have lawful authority to remain there; 5. S/he knew or should have known that s/he was remaining on the property against the will of [the lawful occupant] [or] [the person lawfully in charge of the premises]; and 6. Upon being directed to leave the property, s/he refused to leave.
A person may be [the lawful occupant] [lawfully in charge] of the property even though there are other persons who could, if they chose to do so, cancel or override his/her authority. There may be more than one person who has the authority to order a person to leave the property. [You have heard evidence that [Name of defendant ] believed that s/he had a right to remain in the area in question. One who remains in a restricted area with a good faith belief of his/her legal authority to remain there is not guilty of unlawful entry. Thus, you cannot find [Name of defendant ] guilty of unlawful entry unless you are convinced beyond a reasonable doubt that s/he did not have a good faith belief in his legal authority to remain in the area after being directed
to leave.] ____________________________________ Comment: The Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189), and the emergency versions of this Act that went into effect initially on August 6, 2009 (Act 18-181 and B 18-466), made unlawful entry of a private dwelling, building, or other property a non-jury demandable offense. Since it may be paired with jury-demandable offenses, we retained that part of the instruction. Entry into, or remaining in, a public building or other property is still jury demandable. Select the correct bracketed phrase in the first element. Private dwelling includes "a privately owned house, apartment, condominium, or any building used as living quarters, or cooperative or public housing, as defined in section 3(1) of the U.S. Housing Act of 1937, approved August 22, 1974 (88 Stat. 654; 42 U.S.C. 1437a(b)), the development or administration of which is assisted by the Department of Housing and Urban Development, or housing that is owned, operated, or financially assisted by the District of Columbia Housing Authority." This definition, or a part of it, may be added to the instruction if necessary. If the nature of the building is in issue, the instruction may need to be modified. The last bracketed alternative in the first element in Part A should be given only when there is evidence that the defendant entered or attempted to enter a restricted area of a building or property to which the public is otherwise permitted access. See McGloin v U.S., 232 A.2d 90, 91 (D.C. 1967) . The bracketed paragraphs in Parts A and B that begin "You have heard evidence" should only be given when there is evidence that the defendant had a good faith belief that s/he is entering with lawful authority. See, e.g., Gaetano v. U.S., 406 A.2d 1291, 1294 (D.C. 1979) ("bona fide belief" defense does not exonerate individuals who believe they have a right or duty to violate the law in order to effect a moral, social, or political purpose); U.S. v. Dougherty, 473 F.2d 1113, 154 U.S. App. D.C. 76, 101 (1972) (law does not recognize as a defense that defendants were motivated to commit their acts by sincere political, religious, or moral convictions or in obedience to some higher law). The Fifth Edition added the bracketed paragraph at the end of Part A that begins "You may but are not required to" based on D.C. Official Code 22-3302, as amended in 2006. It should be given if the facts warrant it. There do not appear to be any cases interpreting this provision. It is reversible error for the trial judge to rule that the complainant was the lawful occupant of the premises since this is an element of the offense which must be proved by the government. Moore v. U.S., 136 A.2d 868, 869 (D.C. 1957) . Where a public or semi-public building is entered, the statute requires that, in addition to and independent of an express order to leave the premises, there exists some additional specific factor establishing the lack of a legal right to remain, such as posted regulations, signs, fences, or barricades. Abney v. U.S., 616 A.2d 856 (D.C. 1992) (Capitol Police order is independent factor); U.S. v. Rothmeier, 570 A.2d 811, 813 (D.C. 1990) (invalid regulation is not independent factor); U.S. v. Powell, 563 A.2d 1086, 1089 (D.C. 1989) (gates that are closed at the conclusion of the day's business is independent factor); Wheelock v. U.S., 552 A.2d 503, 505 (D.C. 1988) (early closure of Rotunda because of protest is not independent factor); O'Brien v. U.S., 444 A.2d 946, 948 (D.C. 1982) (WAMATA regulations governing distance for leafleting is independent factor). See also Byrne v. U.S., 578 A.2d 700, 702 (D.C. 1990) (foreign embassy is not public property, thus additional specific factor not required). However, no such express notice is required in those areas of semi-public or public buildings obviously not open to the public. Smith v. U.S., 281 A.2d 438, 440 (D.C.
1971) ; McGloin v. U.S., 232 A.2d 90, 91 (D.C. 1967) . A defendant who previously had a right, through the consent of the owner of a premises, to enter may have that right revoked. See, e.g., Jackson v. U.S., 357 A.2d 409, 411 (D.C. 1976) (defendant who had entered and remained in girlfriend's apartment lawfully on prior occasions was nevertheless an unlawful entrant after it was made clear to him that his right to remain had been revoked); Drew v. U.S., 292 A.2d 164, 166 (D.C. 1972) (restaurant owner, in the absence of a statute, may arbitrarily refuse service to a customer and demand that he leave); Kelly v. U.S., 348 A.2d 884, 886 (D.C. 1975) (right of innkeeper to issue barring notice to individual). With respect to premises where there may be more than one person who has authority to order removal, the jury must find beyond a reasonable doubt that a demand to leave was made by a person lawfully in charge, even though there may have been other persons who could have countermanded the authority. Woll v. U.S., 570 A.2d 819, 821-22 (D.C. 1990) (lessee of clinic was person lawfully in charge so that she could have police officer, acting as her agent, demand that others leave corridor); Smith v. U.S., 445 A.2d 961, 964 (D.C. 1982) (en banc); Whittlesey v. U.S., 221 A.2d 86, 91 (D.C. 1966) . Where the existence of a bona fide belief in one's lawful authority to enter a premises is genuinely questionable, the defendant is entitled to an instruction thereon; however, where there is no evidence supportive of such a claim, there is no duty to instruct the jury that such a belief constitutes a valid defense. See Darab v. U.S., 623 A.2d 127, 136 (D.C. 1993) ("When a person enters a place with a good purpose and a bona fide belief in his or her right to enter, that person lacks the requisite criminal intent for unlawful entry. A defendant is entitled to an instruction, where the existence of such a belief is 'genuinely questionable,' to the effect that the government must prove beyond a reasonable doubt that the defendant did not have a reasonable, good faith belief in his lawful authority to stay. However, 'to warrant an instruction it is not sufficient that an accused merely claim a belief to the right to enter. A bona fide belief must have some justification--some reasonable basis.' " (citations omitted)); Abney v. U.S., 616 A.2d 856, 862 (D.C. 1992) (good faith defense may not rest on good faith belief that constitutional law affords defendant a right to be on property; defense must rest on reasonable mistake of fact or non-penal laws); Shiel v. U.S., 515 A.2d 405, 409 (D.C. 1986) (same); Gaetano v. U.S., 406 A.2d 1291, 1294 (D.C. 1979) (similar); Hemmati v. U.S., 564 A.2d 739, 744 (D.C. 1989) (sincere personal or political belief is no defense; defendant's belief in right to remain must have a reasonable basis); Smith v. U.S., 281 A.2d 438, 439 (D.C. 1971) . See generally No. 9.100, Defendant's Theory of Case--Note. See also Artisst v. U.S., 554 A.2d 327 (D.C. 1989) (evidence sufficient to sustain conviction when sign posted in public entry way of school dormitory directed visitors to present school identification to security guard was a sufficient warning to defendant that he was not permitted in the building unless he was a student in the school); Wheelock v. U.S., 552 A.2d 503, 509 (D.C. 1988) (conviction reversed where defendant lawfully demonstrating in Capitol Rotunda because officials could not close the area for security reasons based on the presence of the demonstrators, thus bootstrapping security concern into an independent factor justifying arrest); Culp v. U.S., 486 A.2d 1174, 1177 (D.C. 1985) (probable cause to arrest for unlawful entry exists where officer has reason to believe person in vacant building does not belong there and there are indications of a continued claim of possession of the property); Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 863 (D.C. 1982) (probable cause to arrest for unlawful entry found where defendant refused to leave grocery store); Roane v. U.S., 432 A.2d 1218, 1220 (D.C. 1981) (proof of partial entry into store would be sufficient for conviction of unlawful entry); Bates v. U.S., 403 A.2d 1159, 1161-62 (D.C. 1979) (because the crime involves dishonesty, defendant may be impeached with conviction for unlawful entry); Hockaday v. U.S., 359 A.2d 146 (D.C. 1976) (conviction affirmed for unlawful entry of man into woman's bathroom); U.S. v. Melton, 491 F.2d 45, 57, 160 U.S. App. D.C. 252, 264 (1973) (insufficient evidence for a burglary conviction may nevertheless allow trial court to enter guilty verdict for unlawful entry); U.S. v. Thomas, 444 F.2d 919, 925, 144 U.S. App. D.C. 44, 50 (1971) (defective burglary indictment gave defendant sufficient notice for charge of unlawful entry); Bond v. U.S., 233 A.2d 506, 514 (D.C. 1967) (defendant's presence in area of airline office not open to
pubic and without authority held sufficient to sustain unlawful entry conviction); Bowman v. U.S., 212 A.2d 610, 611-12 (D.C. 1965) (unticketed defendant's presence in area of Union Station restricted to ticket holders constituted unlawful entry).
Page 456
172 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 4. Scope 1-V Criminal Jury Instructions for DC Instruction 5.402 Instruction 5.402 BREAKING AND ENTERING VENDING MACHINES
The elements of this offense, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] broke open, opened or entered a [insert name of device]; 2. The [name of device] was the property of another; 3. At the time of the opening or entering, [name of defendant] had no right to do so; and 4. S/he did so intending to carry away [part of the [name of device]] [anything contained within the [name of device]]. It is not necessary that [name of defendant] actually broke any part of the [name of device]. Nor is it necessary that s/he actually carry away any part of it or anything contained within it. In determining the intent with which the [name of defendant] allegedly broke, opened or entered the [name of device], you may consider all the facts and circumstances in evidence, including the manner of breaking, opening, or entering, and the acts and events which led up to the alleged breaking, opening, or entering.____________________________________ Comment: The bracketed language in the first element of the offense should be utilized to specify the type of device or vending machine which has been victimized. The statute lists the following devices: parking meter, coin telephone, vending machine dispensing goods or services, money changer, or other devise designed
to receive currency. The designation used in that bracket should be repeated in the brackets contained in the second and fourth element. The language in the third element has been bracketed to indicate that the jury should be instructed only on the defendant's specific intent as alleged in the indictment. An indictment for this offense must allege that the device belonged to someone other than the defendant. See U.S. v. Pendergrast, 313 A.2d 103 (D.C. 1973) . But see Craig v. U.S., 490 A.2d 1173 (D.C. 1985) (judicial notice that parking meter was owned by the District of Columbia proper where information sufficiently apprised defendant of charge). The defendant must also have acted "without right." See Bolan v. U.S., 587 A.2d 458 (D.C. 1991) (where an eyewitness and the arresting officer both testified, identifying the defendant as one of two men who tried to break into a parking meter, but the government presented no evidence that the defendant lacked authority to open the meter, the evidence was insufficient to support a conviction); Craig, supra (government must prove that defendant lacked authority from the rightful owner). Lesser included offenses: No. 7.101, Attempt; but see U.S. v. Hughes, 115 Wash.D.L.Rptr. 1077 (D.C. Super. Ct. 1987) ( 22-3427 [22-601] is not covered by the general attempt statute); No. 5.400, Malicious Destruction of Property. Cross reference: No. 3.100, Defendant's State of Mind--Note.
Page 458
173 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 4. Scope 1-V Criminal Jury Instructions for DC Instruction 5.403 Instruction 5.403 POSSESSION OF IMPLEMENTS OF CRIME
The elements of the offense of possession of implements of a crime, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] possessed an instrument, tool or implement for picking [locks] [pockets], that is a [insert implement]; 2. [Name of defendant] intended to use the [insert implement] in the commission of a crime. [Insert Instruction 3.104, Possession--Defined.] ____________________________________ Comment: The statute applies only to the possession of "instrument, tool or implement for picking locks or pockets," unlike the former provision, which reached beyond those instruments to include other implements which are "usually employed, or reasonably may be employed in the commission of any crime." The statute makes explicit the requirement that the defendant have the intent to use the instrument, tool, or implement to commit a crime. See McKoy v. U.S., 263 A.2d 649 (D.C. 1970) . The statute was amended in 1981. For decisions under former law, see Benton v. U.S., 232 F.2d 341, 98 U.S. App. D.C. 84 (1956) (statute unconstitutional as applied to implements which of themselves do not give rise to sinister implications); Green v. D.C., 91 A.2d 712 (D.C. Mun. App. 1952) (tools of defendant's trade improperly received in evidence against him in prosecution under this statute).
Cross references: No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 3.104, Possession--Defined.
Page 460
174 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 4. Scope 1-V Criminal Jury Instructions for DC Instruction 5.404 Instruction 5.404 ALTERING OR REMOVING A MOTOR VEHICLE IDENTIFICATION NUMBER
The elements of the offense of altering or removing motor vehicle identification number, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] removed, obliterated, altered or tampered with any motor vehicle identification number on a [insert type of motor vehicle] or part of a [insert type of motor vehicle]; [and] 2. S/he did so voluntarily, and on purpose, not mistakenly, accidentally, or inadvertently[.] [; and] [3. The value of the [insert type of motor vehicle] or [insert type of motor vehicle] part was $250 or more.] "Identification number" means a number or symbol that is originally inscribed or affixed by the manufacturer to a motor vehicle or motor vehicle part for purposes of identification.____________________________________ Comment: This was a new instruction in the 2007 release based on an offense created by the Omnibus Public Safety Act of 2006. That statute went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. It became final in 2007. At the time the Fifth Edition went to print, no cases involving this statute had been
decided. The statute defines a "motor vehicle" as "any automobile, self-propelled mobile home, motorcycle, motor scooter, truck, truck tractor, truck semi-trailer, truck trailer, bus or other vehicle propelled by an internal-combustion engine, electricity, or steam, [including any non-operational vehicle that is being restored or repaired]." D.C. Official Code 22-3233(c)(2). The bracketed third element should be given when the government alleges that the value of the vehicle or vehicle part was $250 or more, thereby triggering the felony punishments. Cross references: No. 3.101, Proof of State of Mind; Note, No. 3.105, Proof of Value.
Page 462
175 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses B. Crimes Against Property 4. Scope 1-V Criminal Jury Instructions for DC Instruction 5.405 Instruction 5.405 UNLAWFUL ENTRY OF A MOTOR VEHICLE
The elements of unlawful entry of a motor vehicle, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant ] [[was inside] [inserted his/her [name of body part] into any part of]] a motor vehicle; 2. The motor vehicle was [owned by] [in the lawful custody of] [name of complainant] ; 3. [Name of complainant] did not give [Name of defendant ] permission to [enter] [be inside of] the motor vehicle; and 4. When [Name of defendant] entered the motor vehicle, s/he knew that s/he did not have the permission of the [name of complainant] [or some other person with authority to give permission on the [name of complainant's] behalf]. ["Any part of a motor vehicle" includes the passenger compartment, the trunk, cargo area, or the engine compartment.]____________________________________ Comment: This is a new instruction in the 2010 release. This instruction tracks the language of the Omnibus Public Safety and Justice Amendment Act of 2009 and the emergency versions of this Act that went into effect
on August 6, 2009. As a general rule, the Redbook incorporates definitions into the elements of the offense. "The term 'enter the motor vehicle' means to insert any part of one's body into any part of the motor vehicle, including the passenger compartment, the trunk or cargo area, or the engine compartment." The statute does not apply to: (1) an employee of the District government in connection with his or her official duties; (2) a tow crane operator who has valid authorization from the District government or from the property owner on whose property the motor vehicle is illegally parked; or (3) a person with a security interest in the motor vehicle who is legally authorized to seize the motor vehicle. When the portion of the instruction referring to "any part of a motor vehicle" is used, the last bracketed sentence should also be given.
Page 464
176 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.100 Instruction 6.100 CONTEMPT
D.C. Official Code 11-944; 23-1329; 16-1005 (2001) 18 U.S.C. 401 A. VIOLATION OF ANY COURT ORDER (D.C. OFFICIAL CODE 11-944; 16-1005(f); 18 U.S.C. 401(3)) The elements of contempt, each of which the government must prove beyond a reasonable doubt, are that: 1. A court ordered [name of defendant] to [describe order]; 2. The order was clear and specific; 3. [Name of defendant] knew of the order; and 4. [Name of defendant] violated the order[s] voluntarily and on purpose, and not by mistake or acccident. B. VIOLATION OF CONDITIONS OF RELEASE (D.C. OFFICIAL CODE 23-1329(c)) The elements of contempt, each of which the government must prove beyond a reasonable doubt, are that: 1. The court ordered [name of defendant] to [insert affirmative order] [refrain from [insert]] while the defendant was on release in Case No. [insert]; 2. The order was in writing;
Page 465 1-VI Criminal Jury Instructions for DC Instruction 6.100
3. The order was sufficiently clear and specific to serve as a guide for [name of defendant's] conduct; 4. [Name of defendant] knew of the order; and 5. [Name of defendant] violated the order voluntarily and on purpose, and not by mistake or accident. C. CONTEMPT IN PRESENCE OF COURT (D.C. OFFICIAL CODE 11-944; 18 U.S.C. 401(1)) The elements of contempt, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] engaged in conduct in or near the court; 2. [Name of defendant's] conduct interfered with the orderly administration of justice; and 3. [Name of defendant] willfully or intentionally [or recklessly] attempted [to show disrespect for the court] [to disrupt the proceedings of the court] by this conduct.
["Recklessly" means a person did an act intentionally with willful disregard of its potential consequences.] ____________________________________ Comment: Alternative A can be used when the defendant violated any court order, including a civil protective order. Alternative A should be used if violating a condition of release is charged under 11-944; if it is charged under 23-1329, Alternative B must be used. Alternative C should be used when the defendant engaged in conduct in or near the courtroom that disrupted or threatened to disrupt the proceedings. Violation of a court order is not necessary for Alternative C. Several statutes govern the offense of contempt in Superior Court: D.C. Official Code 11-944 (2001) ("a judge many punish for disobedience of an order or for contempt committed in the presence of the court"); D.C. Official Code 23-1329 (2001) ("Contempt sanctions may be imposed if ... it is established that such person has intentionally violated a condition of his release"); D.C. Official Code 16-1005(f) (2001) (In intrafamily cases, "[v]iolation of any temporary or final order ..., and respondent's failure to appear as required ... shall be punishable as contempt"); and 18 U.S.C. 402 ("Any person ... wilfully disobeying any lawful writ, process, order, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or things so done be of such character as to constitute also a criminal offense ... shall be prosecuted for such contempt ..."). Both 18 U.S.C. 402 and 18 U.S.C. 401 govern the offense of contempt in the federal courts. Regardless of the source of the contempt power, "the offense of criminal contempt requires proof of a contemptuous act and a wrongful state of mind." Davis v. U.S., 834 A.2d 861, 866 (D.C. 2003) (defendant charged with contempt pursuant to D.C. Code 16-1005 for violating a civil protection order) (citing Swisher v. U.S., 572 A.2d 85, 89 (D.C. 1990) (defendant charged with criminal contempt for failing to appear at a court hearing)); accord In re Farquhar, 492 F.2d 561, 564, 160 U.S. App. D.C. 295, 298 (D.C. Cir. 1973) ; see Grant v. U.S., 734 A.2d 174, 176 (D.C. 1999) (defendant charged with criminal contempt pursuant to D.C. Code 23-1329 for violating conditions of release). "A
contemptuous act may be conduct that interferes with the orderly administration of justice or it may be 'disobedience or resistance' to court orders through actions committed outside the presence of the court." Banks v. U.S., 926 A.2d 158, 164 (D.C. 2007) (quoting Grant, 734 A.2d at 176 ). State of Mind Contempt requires that the defendant's conduct be willful. Though with many criminal offenses, "willfulness" means simply that the defendant acted intentionally, that is, voluntarily and not by accident, in the context of contempt, "willfuness" means that the defendant had a "wrongful state of mind." See Davis v. U.S., 834 A.2d 861, 867 (D.C. 2003) (government was required to show not only that Davis violated the CPO but that he did so willfully, i.e., that he had a "wrongful state of mind"). For both violation of a court order contempt (part A) and violation of conditions of release contempt (part B), to show willfulness, the government must prove that the defendant had knowledge of the court order or conditions of release and deliberately violated the court order or conditions of release. "One cannot be contemptuous of a court order if he has no knowledge of it." In re (Raymond) Thompson, 419 A.2d 993, 996 (D.C. 1980) (reversing conviction of contempt against attorney for failure to appear at a court hearing for which the attorney lacked notice). "A defendant cannot be convicted of criminal contempt where he or she is not put on notice of the specific conditions of the [CPO] order." Hector v. U.S., 883 A.2d 129, 131 (D.C. 2005) (quoting Vaas v. U.S., 852 A.2d 44, 46 (D.C. 2004) (citing Smith v. U.S., 677 A.2d 1022, 1031 (D.C. 1996) (reversing contempt for violating CPO where no evidence that defendant was informed by court that "no contact" order meant no contact through writing as well as no physical contact)); Vaas v. U.S. at 46 (reversing 23-1329 contempt for violating conditions of release where appellate court could not find that defendant's conduct was willful because the order did not set forth "all the conditions to which the release was subject, in a manner sufficiently clear and specific to serve as a guide for the [defendant's] conduct"); see also Jones v. Harkness, 709 A.2d 722, 723-24 (D.C. 1998) (affirming defendant's criminal conviction, finding that trial court properly inferred wrongful intent where defendant, "knowing the CPO was in place ... deliberately engaged in continuing behavior that violated the court order."). For contempt in the presence of the court (Part C), it is not necessary that a person violate a court order where conduct is "disrespectful of the court or disrupt[s] its proceedings." Brooks v. U.S., 686 A.2d 214, 224 (D.C. 1996) . However, "a mere finding of improper conduct is not sufficient[. R]ather [the court] must find a 'willful attempt [by the contemnor] to show disrespect for the court or to disrupt the proceedings.' " Bethard v. D.C., 650 A.2d 651, 653 (D.C. 1994) (quoting In re Gorfkle, 444 A.2d 934, 940 (D.C. 1982)) ; accord. Sykes v. U.S., 444 F.2d 928, 930, 144 U.S. App. D.C. 53, 55 (D.C. Cir. 1971) (finding that intent could be satisfied if "[defendant] intended any disrespect for the court."); see DeVaughn v. D.C., 628 F.2d 205, 207, 202 U.S. App. D.C. 205, 207 (D.C. Cir. 1980) (finding that where deliberate or reckless disregard or intentional insult was not proven beyond a reasonable doubt, evidence was insufficient for contempt); In re Gorfkle, 44 A.2d at 939 (finding that conduct of attorney who asked leading questions after court's admonition not to do so did not rise to level of criminal contempt). In some cases, the willfullness analysis may involve what knowledge the defendant had about how to conform his behavior so as not to disrupt the court. See Brooks v. U.S., 686 A.2d 214, 224 (D.C. 1996) ("The trial court's admonition [that the defendant 'calm down'] lacked the clarity and certainty that are required of a court order before [the appellate court] can agree that Mr. Brooks willfully violated it."); see also McCormick v. U.S., 635 A.2d 347, 351 (D.C. 1993) (citation omitted) ("We do not say there can never be a single, non-verbal gesture that would justify a summary contempt proceeding. Nor must conduct evincing flagrant disrespect for the court, be menacing or threaten bodily harm in order to be contumacious--although ... it must have at least some capacity to impair the orderly administration of justice."); Cooke v. U.S., 267 U.S. 517, 524 (1925) (finding single letter to judge using improvident
language "contemptuous" but reversing conviction based on trial court's use of summary proceedings). The defendant must have behaved with willful, deliberate or reckless disregard of his or her obligation. Thompson v. U.S., 690 A.2d 479, 482 (D.C. 1997) (reversing contempt for appearing late in court); accord Sykes, 444 F.2d at 930, 144 U.S. App. D.C. at 55 (holding that intent may be inferred from lawyer's "reckless disregard for his professional duty."). "For purposes of criminal contempt, a defendant is ... 'reckless' only if he intentionally does an act with a willful disregard of its potential consequences." Thompson, 690 A.2d at 483 . Violation of a Court Order (Part A) For violation of a court order, it is not necessary that a person's willful violation obstruct the orderly administration of justice. See Baker v. U.S., 891 A.2d 208, 214-15 (D.C. 2006) (holding that the elements of criminal contempt for violation of order are either "(1) conduct committed n the presence of the court that dispupts the orderly administration of justice or (2) willful disobedience of a court order, committed outside the court.") (italics in original), citing Grant v. U.S., 734 A.2d 174, 176-77 (a conviction for criminal contempt for disobedience of a court under D.C. Code 23-1329 does not require proof that the disobedient act caused an obstruction of the orderly administration of justice); accord Payne v. U.S..932 A.2d 1095, 1101, (D.C. 2007) (standard jury instruction "correctly noted that..., the jury must find that [defendant] "willfully disobeyed" the court's order."). However, the order must be "specific and definite, or clear and unambiguous." In re Jones, 898 A.2d 916, 920 (D.C. 2006) (citations omitted); accord U.S. v. Rapone, 131 F.3d 188, 192, 327 U.S. App. D.C. 338, 342 (D.C. Cir. 1997) (order must be "clear and reasonably specific") (quoting U.S. v. NYNEX, 8 F.3d 52, 303 U.S. App. D.C. 399 (D.C. Cir. 1993)) . Conditions of Release (Part B) For violations of conditions of release, the defendant may be charged under either 11-944 or 23-1329. Caldwell v. U.S., 595 A.2d 961, 965-66 (D.C. 1991) . The plain language of D.C. Official Code 23-1329 authorizes the use of contempt sanctions upon proof that "a person has intentionally violated a condition of his release." Grant v. U.S., 734 A.2d 174, 177 (D.C. 1999) . D.C. Official Code 23-1322(f)(1) (2001) further requires plainly that a release order pursuant to 23-1321(b) or (c) be in writing and "in a manner sufficiently clear and specific to serve as a guide to defendant's conduct." Smith v. U.S., 677 A.2d 1022 (D.C. 1996) (no contempt where written statement of conditions was not sufficiently clear and specific to serve as a guide to defendant's conduct where court could not conclude that defendant could reasonably infer from order to stay away from complainant that she was not to have contact with complainaint's attorney); see also Vaas v. U.S., 852 A.2d 44, 47 (D.C. 2004) (defendant's conduct not willful where order failed to meet specificity standard of 23-1322(f) in case where written order to stay away from "1 block radius" and oral order to stay away from "1 block area" created an ambiguity regarding area from which defendant was barred). Proof, however, that the orderly administration of just ice was obstructed is not required for this kind of contempt. Grant, 734 A.2d at 177 ; Baker, 891 A.2d at 214 . The D.C. Court of Appeals has held "[a]ddiction to heroin [does] not constitute a defense to the charge of contempt based upon violating a condition of pretrial release not to use drugs." Grant, 734 A.2d at 177 (following dictum in Thompson v. U.S., 571 A.2d 192, 194 n. 2 (D.C. 1990)) . Presence of the Court (Part C) For contempt in the presence of the court, a person's conduct must take place either in the court or "so near to the court as actually to obstruct justice." In re Gorfkle, 444 A.2d 934, 938 (D.C. 1982) ; accord Nye v. United States, 313 U.S.33, 48-52 (1941), 313 U.S. 33, 48-52, 61 S. Ct. 810, 85 L. Ed. 1172
(construing "so near thereto" in federal contempt statute to be construed in geographical terms). Where conduct is "disrespectful of the court or disrupt(s) its proceedings," it is not necessary that a person violate a court order. Brooks v. U.S., 686 A.2d 214, 224 (D.C. 1996) ; see also id. at 223 (holding that contempt under 11-944 may be committed by a defendant who engages in "contemptuous conduct committed in the presence of the court.") The act must have actually obstructed of the administration of justice for it to be contemptuous. In re Brown, 454 F.2d 999, 1003-05, 147 U.S. App. D.C. 156, 160-62 (D.C. Cir. 1971) (holding that there was no obstruction of administration of justice where appellant's actions "did not disrupt judicial proceedings, cause expense, or produce delay"); see In re McConnell, 370 U.S. 230, 235-36 (1962) (finding that despite statement showing continued disagreement with bench, lawyer did not obstruct proceedings); see also U.S. v. McGainey, 37 F.3d 682, 685-86, 308 U.S. App. D.C. 385, 388-89 (D.C. Cir. 1994) (holding that although contempt proceedings themselves do not satisfy obstruction of justice requirement, diversion of judicial resources is sufficient where U.S. Marshals had to respond to threatening conduct). A significant percentage of reported contempt cases have arisen in the context of summary proceedings (governed by Rule 42 of the Superior Court Rules of Criminal Procedure). In these cases, the Court of Appeals has focused on whether the conduct so interfered with the "orderly administration of justice" that resorting to this extraordinary procedure was warranted. Reversals in these cases have been based on the summary nature of the proceedings and not on whether the conduct, per se, could be regarded as contemptuous. As a result, the Committee recognizes that there is a great deal of confusion in the law. Miscellaneous "There is no limitation on the length of the sentence for criminal contempt" under D.C. Official Code 11-944 (2001). Caldwell, 595 A.2d at 965 . However, the Court of Appeals has cautioned that the sentencing court must be "guided by the principle of proportionality in determining whether or not a sentence for contempt bears a reasonable relationship to the underlying conduct." Id. at 968 (citing cases). For violation of a civil protection order [CPO], the D.C. Court of Appeals has held that the elements of the offense are the same whether charged under 16-1005(f) (violation of CPO as contempt) or 16-1005(g) (violation of CPO as independent offense). Ba v. United States, 809 A.2d 1178, 1182 n.6 (D.C. 2003) . In dicta, the Court noted that "the consent defense and the frustration of the CPO by a party who seeks the order" raise "serious and complex issues." However, because the victim in Ba had withdrawn any possible "consent" to the defendant's violation of the CPO order, the Court found it unnecessary to address whether "consent to violation of CPO, if such consent was possible," would be a defense. Id. at 1183 . A person is not entitled to attack the validity of a court order in a contempt proceeding. Shewarega v. Yegzaw, 947 A.2d 47, 51 (D.C. 2008) (respondent not entitled to attack validity of a CPO in contempt proceeding; he was obligated to obey the court order unless and until it was reversed or vacated). "Compliance with court orders is required until they are reversed on appeal or are later modified." Baker, 891 A.2d at 212 (quoting Kammerman v. Kammerman, 543 A.2d 794, 798-99 (D.C. 1988)) . Thomas v. U.S., 934 A.2d 389, 391 (D.C. 2007) .
Page 469
177 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.101 Instruction 6.101 OBSTRUCTING JUSTICE
D.C. Official Code 22-722(a) (2001) A. THREATENING, INTIMIDATING, OR CORRUPTLY PERSUADING A JUROR The elements of the offense of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of complainant ] was a [grand juror] [petit juror] [a person selected or summoned as a prospective juror] in the District of Columbia; 2. [Name of defendant] knew or believed that [Name of complainant ] was a juror [a person selected or summoned as a prospective juror]; 3. [Name of defendant] [a. intimidated or used physical force against] [b. threatened] [c. sent a threatening letter or threatening communication to] [d. with the intent to undermine the integrity of the [proceeding] [trial], persuaded or tried to persuade]
[Name of complainant ] [another person]; and 4. [Name of defendant] did so with the intent to influence, intimidate, or impede [Name of complainant in the exercise of his/her duties as a juror.
[The term "threatening" means having a reasonable tendency to intimidate the ordinary person.] The government need not prove that [Name of defendant] successfully [influenced] [intimidated] [impeded] [Name of complainant ] in the exercise of his/her official duty as a juror. B. THREATENING, INTIMIDATING, OR CORRUPTLY PERSUADING A WITNESS OR OFFICER The elements of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of complainant ] was [a witness] [an officer] in a [grand jury investigation] [trial] [hearing] [investigation] [proceeding [in a court of the District of Columbia] [conducted by [the Council of the District of Columbia] [name of agency or department of the District of Columbia government] ]; 2. [Name of defendant] knew or believed that [Name of complainant ] was a [witness] [officer]; 3. [Name of defendant] [a. intimidated or used physical force against]; [b. threatened] [c. sent a threatening letter or threatening communication to] [d. with the intent to undermine the integrity of the [proceeding] [trial], [persuaded or tried to persuade] [Name of complainant ] [another person]; and 4. [Name of defendant] did so with the intent to [a. Influence, delay, or prevent [name of complainant's] truthful testimony in] [b. Cause or induce [Name of complainant ] to withhold truthful testimony or a record, document or other object from] [c. Evade a legal process that summoned [Name of complainant ] to [appear as a witness] [produce a document] in] [d. Cause or induce [Name of complainant ] to be absent from] a [grand jury investigation] [trial] [hearing] [investigation] [other proceeding] [in a court of the District of Columbia] [conducted by [the Council of the District of Columbia [[name of agency or department of the District of Columbia government]].
[The term "threatening" means having a reasonable tendency to intimidate the ordinary person.] The government need not prove that [name of defendant] successfully [insert appropriate language from (4)(a)-(d) in the past tense]. C. HARASSING ANOTHER PERSON The elements of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] harassed [Name of complainant ]; 2. [Name of defendant] did so with the intent to hinder, delay, or prevent [Name of complainant ] from: [a. Attending or testifying truthfully in a [grand jury investigation] [trial] [hearing] [investigation] [other proceeding] [in a court of the District of Columbia] [conducted by the Council of the District of Columbia or agency or department of the District of Columbia government].] [b. Reporting to a law enforcement officer [the commission of a criminal offense] [any information concerning a criminal offense].] [c. Arresting or seeking the arrest of another person in connection with the commission of a criminal offense.] [d. Causing a [criminal prosecution] [parole revocation proceeding] [probation revocation proceeding] to be sought or instituted.] [e. Assisting in a prosecution or [grand jury investigation] [trial] [hearing] [investigation] [other proceeding] [in a court of the District of Columbia] [conducted by the Council of the District of Columbia or agency or department of the District of Columbia government].]
"Harass" means to threaten, intimidate, or use physical force against a person or to use any words or actions that have a reasonable tendency to badger, disturb, pester the ordinary person (means seriously alarm, frighten, annoy or torment). D. INJURING WITNESS OR HIS PROPERTY The element of the offense of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: For offenses committed on or after June 29, 2009: 1. [Name of defendant] [injured [name of complainant] ] [threatened to injure [name of complainant]] [damaged the property of [Name of complainant ];
For offenses committed before June 29, 2009: 1. [Name of defendant] [injured [name of complainant]] [damaged the property of [name of
complainant]]; 2. [Name of defendant] acted voluntarily, on purpose, and not by mistake or accident.
For offenses committed on or after June 29, 2009: 3. [Name of defendant] [injured [name of complainant]] [threatened to injure [Name of complainant] [damaged the property of [Name of complainant] because [s/he] [another person] had given information to a criminal investigator;
For offenses committed before June 29, 2009: 3. [Name of defendant] [injured [name of complainant]] [damaged the property of [Name of complainant] because [s/he] [another person] had given information to a criminal investigator; 4. The information had been given during the course of a criminal investigation; 5. The information related to a violation of [insert name of criminal statute] , a criminal statute then in effect in the District of Columbia; and
The term "criminal investigator" means either an individual authorized by the Mayor of the District of Columbia or his designated agent to conduct or engage in a criminal investigation, or a prosecuting attorney conducting or engaged in a criminal investigation. [A metropolitan police officer is a "criminal investigator" within the definition of this statute.] A "criminal investigation" is an investigation relating to the violation of any criminal statute in effect in the District of Columbia. It is not necessary to prove that formal court proceedings regarding this investigation had been instituted. E. INJURING A WITNESS, JUROR, OR COURT OFFICER OR DAMAGING HIS/HER PROPERTY The elements of the offense of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: For offenses committed on or after June 29, 2009: 1. [Name of defendant] [injured [name of complainant] ] [threatened to injure [Name of complainant] [damaged the property of [Name of complainant];
For offenses committed before June 29, 2009: 1. [Name of defendant] [injured the [Name of complainant] [damaged the property of [Name of complainant]; 2. [Name of defendant] acted voluntarily, on purpose, and not by mistake or accident
For offenses committed on or after June 29, 2009:
3. [Name of defendant] [injured [name of complainant] ] [threatened to injure [Name of complainant] [damaged the property of [Name of complainant] because [s/he] [another person] performed his/her official duty as a [juror] [witness] [officer] in [name of court in the District of Columbia].
For offenses committed before June 29, 2009: 3. [Name of defendant] [injured the [Name of complainant] [damaged the property of [Name of complainant] because s/he [another person] performed his/her official duty as a [juror] [witness] [officer] in [name of court in the District of Columbia] . F. OBSTRUCTING THE DUE ADMINISTRATION OF JUSTICE The elements of the offense of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [obstructed or impeded] [endeavored to obstruct or impede] the due administration of justice in a pending [grand jury investigation] [trial] [hearing] [investigation] [other proceeding] [in a court of the District of Columbia] [conducted by [the Council of the District of Columbia] [name of agency or department of the District of Columbia government] ]; 2. [Name of defendant] did so [by threats of force] [with the intent to undermine the integrity of the pending [proceeding] [trial] [investigation]].
The government need not prove that [Name of defendant] successfully obstructed or impeded the due administration of justice. ____________________________________ Comment: The Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189) and the emergency versions of this Act that went into effect initially on June 29, 2009 (Act 18-129), expanded the offense of obstructing justice to include "threatening to injure" a witness because of his/her cooperation in an investigation and "threatening to injure" a witness, juror, or officer because s/he performed his/her official duty in court. As a result, that language has now been added to Parts D and E. Both the 1982 and the 1993 amendments expanded on the earlier version by proscribing a broader range of conduct. See, e.g., Woodall v. U.S., 684 A.2d 1258, 1263-64 (D.C. 1996) ("The obstruction of justice statute was amended in response to the widespread corruption, intimidation, and murder of witnesses in the District, and to provide 'an additional weapon ... to combat the obstruction of justice.' Report of the Committee on the Judiciary to the Council of the District of Columbia on Bill 9-385, at 2 (1992)."); Scutchings v. U.S., 509 A.2d 634, 639 (D.C. 1986) (describing the impact of the 1982 statute). Based upon the 1993 statute, this instruction now separately treats threats to a juror or a witness or the harassing of another person in an effort to obstruct justice. Part A addresses only threats to a juror. Before the 1993 changes, Part B dealt generally with "Obstructing the Due Administration of Justice." The 1993 amendments deleted that provision, and Part B now focuses only upon threatening a witness or officer. The new statute added the phrase "by threatening letter or communication" to expand the range of conduct falling within the prohibition. See Scott v. U.S., 672 A.2d 579 (D.C. 1996) (trial judge correctly analyzed 22-722 as setting forth three alternative, if somewhat overlapping, forms of conduct, any one of which violates the statute if carried out with the requisite intent; thus, in order to decide whether
defendant sent a threatening letter within the meaning of the statute, the jury did not also have to decide or even consider whether he used intimidating or physical "force"). The new Part C covers all harassing of other individuals in an effort to interfere with a criminal investigation or prosecution. The old version of Part C addressed only "Obstructing an Investigation Relating to a Criminal Statute." Parts D and E remain essentially the same as in the Fourth Edition of these Instructions. Part F provides a general catch-all provision for those occasions when none of the previous sections applies. To the extent that the current statute carries forward pre-1982 law, the revised instruction is based upon cases construing the former provision and the analogous federal statutes, 18 U.S.C. 1503 and 1510. See generally U.S. v. Smith, 357 A.2d 418 (D.C. 1976) . In Part A, and other relevant parts, the definition of "endeavor" reflects the teachings in U.S. v. Russell, 255 U.S. 138, 141 (1921) , see Osborn v. U.S., 385 U.S. 323, 333 (1966) ; Jackson, 513 F.2d 456, 459, 168 U.S. App. D.C. 198, 201 (1975) . The court may wish to further define "endeavor" if it is warranted based on the particular facts before the court. See Irving v. U.S., 673 A.2d 1284 (D.C. 1996) ("An endeavor to impede a witness is easily established where the threats are directly communicated to the person whose testimony the defendant seeks to deter. However, the obstruction of justice statute may also reach threats communicated to third parties when it is clear from other evidence presented, and from the actions of the defendant, that the defendant actually sought to implement those threats... . The threatening communication need not be heard by the target at whom it was directed ... but need only be part of the 'endeavor' the defendant has undertaken."). The bracketed definition of "witness" is based on Smith v. United States, 591 A.2d 229 (D.C. 1991) . See also U.S. v. Jackson, 513 F.2d 456, 459, 168 U.S. App. D.C. 198 (1975) (person excused after testifying, retained status as witness as long as court retained power to compel his testimony during trial). Cf. U.S. v. Chandler, 604 F.2d 972 (5th Cir. 1979) (prosecution's chief trial witness enjoyed protection as "witness" after trial, while case pending direct appeal); U.S. v. White, 557 F.2d 233 (10th Cir. 1977) (person remained a "witness" despite defendant's expectation, related to his lawyer, of foregoing trial by pleading guilty). The element of knowledge is required. Pettibone v. U.S., 148 U.S. 197, 205 (1983) ; cf. Hall v. U.S., 343 A.2d 35 (D.C. 1975) . But see Ball v. U.S., 429 A.2d 1353, 1361 (D.C. 1981) (in resolving another issue, quoting trial court's instructions that jury must find that the defendant knew or had reason to know that complainant was a witness). Specific intent is also an element of the offense. See Griffin v. U.S., 861 A.2d 610, 614-15 (D.C. 2004) (evidence not sufficient to establish beyond a reasonable doubt that the defendant had the specific intent to influence or prevent a witness's truthful testimony in a preliminary hearing when evidence was that defendant told witness to go to the hearing to tell defendant's lawyer everything she had told the police or something bad would happen to the witness); Crutchfield v. U.S., 779 A.2d 307, 327 (D.C. 2001) ("obstruction of justice is a specific intent crime and the pertinent inquiry ... is whether [the defendant] was aware that [the person] knew material facts about the triple murder to which she might later testify"); Brown v. U.S., 766 A.2d 530 (D.C. 2001) (obstruction of justice statute requires intent to inhibit truthful testimony). Finally, under this offense the government must establish the pendency of formal court proceedings, Smith, supra , and that the defendant's actions were motivated, at least partly, in order to deter or influence the complainant in the performance of his/her official duties. U.S. v. Ryan, 455 F.2d 728 (9th Cir. 1972) . See also Martin v. U.S., 166 F.2d 76, 79 (4th Cir. 1948) . See generally Osborn v. U.S., 385 U.S. 323, 333 (1966) ; Jackson, 168 U.S. App. D.C. at 201, 513 F.2d at 459 . The definition of "threatening" is derived from Smith v. United States, 591 A.2d 229 See generally Elliott v. U.S., 385 A.2d 183 (D.C. 1978) (where witness was compelled to give handwriting exemplar whether he wanted to or not, defendant's action which was designed to prevent him from doing so would support conviction for obstruction of justice under formal statute). The bracketed language indicating that a Metropolitan police officer is a "criminal investigator" within
the meaning of the statute should be inserted in the instruction where the complainant is such an officer. See Payne v. U.S., 516 A.2d 484, 500 (D.C. 1986) (former statute). In Part C, the definition of "harass" comes from Woodall v. U.S., 684 A.2d 1258 (D.C. 1996) . In 1993 the obstruction of justice statute was amended. The old statute prohibited endeavoring" by means of bribery misrepresentation, intimidation, force, or threat of force, to obstruct, delay or prevent the communication to an investigator ..." In Woodall, the Court found that "[t]he new statute was intended to "expand the scope of the [old] obstruction of justice statute to encompass the wide-range of activities used by criminals to impede justice... ." Thus, the statute was intended to reach a broad range of conduct, including threats and physical force, intended to obstruct justice. Woodall v. U.S., 684 A.2d at 1263 (citations omitted). The phrase "to use any words or actions that have a reasonable tendency to badger, disturb pester the ordinary person" is taken from the instruction given by the trial Court in Woodall. It is an open question whether a single act can constitute harassment or whether "continual vexation" is required. Id. at 1264 n.9 . In Part D, the appropriate language from the bracketed phrases should be inserted so that the instruction follows the allegations of the indictment. Part E is derived from Part D, because this offense gives witnesses, jurors and court officers the protection that at one time was available only to those who gave information to criminal investigators. See generally Smith v. U.S., 837 A.2d 87 (D.C. 2003) (citing this instruction with approval). Cross references: No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 4.130, Threats.
Page 476
178 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.102 Instruction 6.102 OBSTRUCTING A REQUEST FOR ASSISTANCE
The elements of the offense of obstructing a request for assistance, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [disconnected] [damaged] [disabled] [temporarily or permanently removed] [[used physical force] [used intimidation] to block access to] a [telephone] [radio] [computer] [electronic communication device]; 2. S/he acted voluntarily, on purpose, and not by mistake or accident; and 3. S/he did so with the intent to [[obstruct] [prevent] [interfere with]] a. [The report of a criminal offense to a law enforcement agency]; b. [The report of [bodily injury] [property damage] to law enforcement]; c. [A request for ambulance or emergency medical assistance to a [government agency] [hospital] [doctor] [medical service provider]]; d. [The report of an act of child [abuse] [neglect] to [law enforcement] [a child welfare agency]]. ____________________________________
Comment: This instruction tracks the language of D.C. Official Code 22-1931. The emergency version of that statute went into effect on July 19, 2006, and remained in effect under various emergency acts--except from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5:00 p.m.. The permanent law went into effect on April 24, 2007. At the time the Fifth Edition went to print, no cases involving this statute had been decided.
Page 478
179 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.110 Instruction 6.110 PERJURY
D.C. Official Code 22-2402 (2001) A. TRADITIONAL PERJURY The elements of perjury, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] testified under oath or affirmation; 2. The oath or affirmation was taken before a competent [tribunal] [officer] [person]; 3. The oath or affirmation was taken in a case in which the law authorized that oath or affirmation; 4. In his/her testimony, [name of defendant] made the statements detailed in the indictment; 5. The statements were material; 6. The statements were false; and 7. [Name of defendant] knew or believed that the statements were false when s/he made them.
[Name of defendant] cannot be convicted of perjury if the evidence against him/her consists solely of the sworn testimony of only one person. The government may satisfy its burden of proof by producing the testimony of two witnesses to the alleged falsity of the statements, or by producing the testimony of one sworn witness and documentary or other evidence corroborating the alleged falsity.
B. PERJURY BY A NOTARY The elements of perjury, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] was a [notary public] [officer authorized to take proof of certification]; 2. S/he [certified that the [insert instrument in question) was acknowledged by [insert party who purportedly acknowledged instrument] [certified as to [insert alleged material matter in the acknowledgment]]; 3. The certification was false; and 4. [Name of defendant] knew or believed that the certification was false. ____________________________________ Comment: In the Fifth Edition, the Committee made stylistic but no substantive changes to this instruction. The Theft and White Collar Crimes Act of 1982 substantially restated prior law with respect to traditional perjury. It expanded the law with respect to perjury by notaries. The District of Columbia Theft and White Collar Crimes Act of 1982, Report of the Committee on the Judiciary (June 1, 1982) at 22. The instruction is divided into two parts to present these two aspects of perjury separately. In Part A, the elements of traditional perjury are "(1) an oath, (2) before a competent person or tribunal; (3) a statement of false, (4) material facts; and (5) knowledge of the falsity." Hsu v. United States, 392 A.2d 972, 978 (D.C. 1978) (citations omitted). The elements are based on Hsu as well as the statute. The government must prove that the oath was administered by a competent, or qualified, tribunal, officer or person. The requirement of a competent tribunal is necessary because it must be shown that the tribunal had personal and subject matter jurisdiction. The District of Columbia Theft and White Collar Crimes Act of 1982, Extension of Comments on Bill No. 4-133 (Remarks of Councilmember Clarke) (July 20, 1982) at 87 ("Clarke"); Christoffel v. U.S., 338 U.S. 84 (1949) . The government must also prove that the defendant was under oath and that the oath was properly administered by a person with legal authority to administer the oath. U.S. v. Obermeier, 186 F.2d 243, 246 (2d Cir. 1950) ; Clarke at 88. In most perjury cases, the legal authority of the tribunal will not be in controversy. It may be more complicated if the perjury allegedly occurred in a civil case. In such a case, the defendant might raise a question about the personal and/or subject matter jurisdiction of the tribunal that administered the oath. In those cases, the parties could fashion language addressing the factual issues that the jury would have to decide. Materiality is a element of the offense and, thus, must be decided by the jury. See Johnson v. U.S., 520 U.S. 461 (1997) ; see also U.S. v. Gaudin, 515 U.S. 506 (1995) (holding that the materiality of a false statement must be decided by a jury rather than a judge). The test for materiality in perjury prosecutions is whether the false statement has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made. Weinstock v. U.S., 231 F.2d 699, 701-01, 97 U.S. App. D.C. 365, 367-68 (1956) . See also Gaudin, 515 U.S. at 509 (in prosecution for making false statements, parties agreed that "materiality" meant that "[t]he statement must have 'a natural
tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.' Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 1546, 99 L.Ed.2d 839 (1988) (internal quotation marks omitted)."); Clarke at 89. If the court wishes to define "materiality" for the jury, the definition in Weinstock could easily be adapted for that purpose. Knowledge of falsity is needed to satisfy the element of willfulness. The term "willfully," as used in statutes relating to perjury, means "knowingly or intentionally." See Clarke at 92; Maragon v. U.S., 187 F.2d 79, 80, 87 U.S. App. D.C. 349, 350 (1950) . In Maragon, the court upheld an instruction on perjury requiring the jury to find that the defendant "[did] not believe [the statement] to be true." Id. The Committee therefore concluded that the "knowingly or intentionally" is adequately captured by the requirement that the perjurer knew or believed that the statements were false. The District of Columbia follows the so-called "two-witness" rule, which states that " 'the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused.' " Boney v. U.S., 396 A.2d 984, 986 (D.C. 1979) (quoting Hammer v. U.S., 271 U.S. 620, 626 (1926)) . Corroboration may be by another witness or by circumstantial evidence. Id. at 985-86 . Indeed, circumstantial evidence may be used as the sole evidence in a perjury prosecution. Id. at 986 n.2 , 987. The corroborative evidence need not itself be sufficient to establish guilt, but need only tend to establish guilt and be inconsistent with innocence when taken together with one witness's testimony. Hsu, 392 A.2d at 981 . The instruction on corroboration is taken from 2A O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, 50.05 at 502 (5th ed. 2000). In U.S. v. Haldeman, 559 F.2d 31, 97-98, 181 U.S. App. D.C. 254, 320-21 (1976) , the court found adequate an instruction that "there must be some corroboration of the testimony against [the defendant]" and that the jury must acquit if the prosecution presented "no independent corroborating evidence of the falsity of the Defendant's testimony." The elements of perjury by a notary in Part B are taken from the statute. In the second element, the judge should select the appropriate false certification and insert language appropriate to the case. Cross references: No. 6.111, Subornation of Perjury; No. 6.112, False Swearing; No. 6.113, False Statements.
Page 481
180 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.111 Instruction 6.111 SUBORNATION OF PERJURY
The elements of subornation of perjury, each of which the government must prove beyond a reasonable doubt, are that: 1. [Insert name of person who allegedly committed perjury] testified under oath; 2. The oath was administered by a competent person or tribunal; 3. In his/her testimony, [insert name of person who allegedly committed perjury] made the statements detailed in the indictment; 4. The statements were material; 5. The statements were false; 6. [Insert name of person who allegedly committed perjury] knew or believed that the statements were false; 7. [Name of defendant] [asked] [persuaded] [or] [induced] [insert name of person who allegedly committed perjury] to testify to the false statements; and 8. S/he knew or believed that the statements were false. [Insert instruction on corroboration from No. 6.110, Perjury.]____________________________________
Comment: To prove subornation of perjury, the government must prove that the person suborned committed perjury. Jenkins v. U.S., 500 A.2d 1019, 1021 (D.C. 1985) . The so-called "two-witness rule" requiring corroboration applies. Id. For further comment on corroboration, see No. 6.110, Perjury, Comment. Materiality is an element of the offense and, thus, must be decided by the jury. See Johnson v. U.S., 520 U.S. 461 (1997) ; see also U.S. v. Gaudin, 515 U.S. 506 (1995) (holding that the materiality of a false statement must be decided by a jury rather than a judge). The test for materiality in perjury prosecutions is whether the false statement has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made. Weinstock v. U.S., 231 F.2d 699, 701-01, 97 U.S. App. D.C. 365, 367-68 (1956) . See also Gaudin, 515 U.S. at 509 (in prosecution for making false statements, parties agreed that "materiality" meant that "[t]he statement must have 'a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 1546, 99 L.Ed.2d 839 (1988) (internal quotation marks omitted)."). The District of Columbia Theft and White Collar Crimes Act of 1982, Extension of Comments on Bill No. 4-133 (Remarks of Councilmember Clarke) (July 20, 1982) at 89 (hereafter, "Clarke"). If the court wishes to define "materiality" for the jury, the definition in Weinstock could easily be adapted for that purpose. The government must also prove that the defendant "willfully procure[d]" the perjurer to commit perjury. The term "willfully," as used in statutes relating to perjury, means "knowingly or intentionally." See Clarke at 92; Maragon v. U.S., 187 F.2d 79, 80, 87 U.S. App. D.C. 349, 350 (1950) . In Maragon, the court upheld an instruction on perjury requiring the jury to find that the defendant "[did] not believe [the statement] to be true." Id. The Committee therefore concluded that the "knowingly or intentionally" is adequately captured by the requirement that the perjurer knew or believed that the statements were false. See also Hsu v. United States, 392 A.2d 972, 978 (D.C. 1978) (requiring proof of knowledge of falsity of statement). The term "procuring" in the statute is intended to be broadly interpreted to include instigating, persuading or inducing another by any means to commit perjury. Clarke at 92. The court should select the most appropriate bracketed language given the evidence in the case. See generally Riley v. U.S., 647 A.2d 1165 (D.C. 1994) (attempted subornation of perjury is a crime in the District of Columbia; however, the defendant here could not be found guilty of suborning perjury based on his attempt to persuade a witness to refuse to testify before the grand jury, but he could be convicted of obstruction of justice for that conduct). For further comment, see Instruction No. 6.110, Perjury, Comment. Cross references: No. 6.110, Perjury; No. 6.112, False Swearing; No. 6.113, False Statements.
Page 483
181 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.112 Instruction 6.112 FALSE SWEARING
The elements of false swearing, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] made, in writing and under oath, the statements detailed in the indictment; 2. The statements were required by law to be sworn or affirmed before a [notary public] [insert other person authorized to administer oaths]; 3. The statements were false; 4. [Name of defendant] knew or believed that statements were false; and 5. The statements were material. ____________________________________ Comment: In the Fifth Edition, the Committee made stylistic but no substantive changes to this instruction. Section 403 of the Theft and White Collar Crimes Act of 1982 created a new offense of "false swearing." The primary purpose of this section was "to protect the integrity of documents affirmed or acknowledged by notaries." The District of Columbia Theft and White Collar Crimes Act of 1982, Report of the Committee on the Judiciary (June 1, 1982) at 23. Thus, the false statement need not be made before a
tribunal. The Committee has included no corroboration requirement, since the offense is a statutory offense and, in contrast to the legislative history of the perjury and subornation of perjury statutes, there is no statement in the legislative history that corroboration is required. Materiality is a element of the offense and, thus, must be decided by the jury. See Johnson v. U.S., 520 U.S. 461 (1997) ; see also U.S. v. Gaudin, 515 U.S. 506 (1995) (holding that the materiality of a false statement must be decided by a jury rather than a judge). The test for materiality in perjury prosecutions is whether the false statement has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made. Weinstock v. U.S., 231 F.2d 699, 701-01, 97 U.S. App. D.C. 365, 367-68 (1956) . See also Gaudin, 515 U.S. at 509 (in prosecution for making false statements, parties agreed that "materiality" meant that "[t]he statement must have 'a natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed.' Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 1546, 99 L.Ed.2d 839 (1988) (internal quotation marks omitted)."); Clarke at 89. If the court wishes to define "materiality" for the jury, the definition in Weinstock could easily be adapted for that purpose. Cross references: No. 6.110, Perjury; No. 6.111, Subornation of Perjury; No. 6.113, False Statements.
Page 485
182 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.113 Instruction 6.113 FALSE STATEMENTS
The elements of the offense of false statements, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] made a false statement in writing; 2. S/he made the false statement, directly or indirectly, to an instrumentality of the District of Columbia; 3. S/he knew or believed that the statement was false; 4. The writing indicated that making a false statement was punishable by criminal penalties; and 5. The statement was material. [Insert name of instrumentality] is an instrumentality of the District of Columbia.____________________________________ Comment: In the Fifth Edition, the Committee made stylistic but no substantive changes to this instruction. The Theft and White Collar Crimes Act of 1982 created the offense of false statements. The comments to No. 6.110, Perjury, No. 6.111, Subornation of Perjury, and No. 6.112, False Swearing, should be
considered in connection with this instruction. In U.S. v. Gaudin, 515 U.S. 506, 509 (1995) , the Supreme Court noted:
It is uncontested that conviction under this provision requires that the statements be "material" to the Government inquiry, and that "materiality" is an element of the offense that the Government must prove. The parties also agree on the definition of "materiality": The statement must have "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 1546, 99 L.Ed.2d 839 (1988) (internal quotation marks omitted). That language could be adapted if the court wishes to define "material" for the jury. Finally, the Committee recommends that the court advise the jury as to whether the instrumentality in question was an instrumentality of the District of Columbia government. Cf. Colbert v. U.S., 601 A.2d 603, 607-09 (D.C. 1992) . Cross references: No. 6.110, Perjury; No. 6.111, Subornation of Perjury; No. 6.112, False Swearing.
Page 487
183 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.114 Instruction 6.114 TAMPERING WITH PHYSICAL EVIDENCE
The elements of tampering with physical evidence, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [knew or had reason to believe that [fill in type of official proceeding] had begun] [or] [knew that [fill in type of official proceeding] was likely to be instituted]; 2. S/he [altered] [destroyed] [mutilated] [concealed] [removed] a [record] [document] [object]; and 3. [Name of defendant] intended to alter that [record] [document] [object] to reduce its value as evidence or its availability for use as evidence at the [fill in type of official proceeding]. [Insert 3.101, Proof of State of Mind]____________________________________ Comment: An official proceeding is any trial, hearing, investigation, or other proceeding in a court of the District of Columbia or conducted by the Council of the District of Columbia or an agency or department of the District of Columbia government, or a grand jury proceeding. D.C. Official Code 22-721(4) (2007). The bracketed language in the first element of the offense should be utilized to specify the type of official proceeding which had begun or which was likely to be instituted. The parties should consider modifying the instruction when the government is using alternative theories to prove this offense.
In most cases whether something is an official proceeding will not be at issue. However, in a case where there is an issue about whether a proceeding is an "official proceeding," the parties may want to modify the instruction to address this issue. See generally Timberlake v. U.S., 758 A.2d 978, 984 (D.C. 2000) ("The statute does not require that an individual be the focus of the official proceeding in question, only that the individual tamper with evidence knowing or having reason to believe that an official proceeding has begun or is likely to be instituted." In addition, "[a] person does not commit the offense of tampering with physical evidence merely because he conceals evidence which would incriminate him if discovered. Rather the accused must already believe, or have reason to believe, that he will be arrested or otherwise investigated at the time he seeks to conceal or destroy the evidence."). Cross references: No. 3.100, Defendant's State of Mind--Note; No. 3.101, Proof of State of Mind; No. 6.101, Obstructing Justice.
Page 489
184 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.115 Instruction 6.115 TAMPERING WITH A DETECTION DEVICE
The elements of tampering with [an electronic monitoring device] [a global positioning system device] [name of other device], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] was [[on pretrial release] [on pre-sentence release] [on predisposition release] [on supervised release] [on probation] [on parole] [committed to [name of custodian]] [subject to a protection order] in Case No. [insert case number]] [incarcerated]; 2. [A. (For persons in the community:) [Name of defendant] was required to wear [an electronic monitoring device] [a global positioning system device] as a condition of that [release] [probation] [parole] [commitment] [protection order];] [and] [B. (For prisoners:) [Name of defendant] was required to wear [an electronic monitoring device] [a global positioning system device] [a radio frequency identification device];] [and] 3. [Name of defendant] intentionally [removed] [altered] [masked] [attempted to mask] [interfered with the operation of] [attempted to interfere with the operation of] the device or intentionally allowed an unauthorized person to [remove] [alter] [mask] [attempt to mask] [interfere with the operation of] [attempt to interfere with the operation of] the device. ____________________________________ Comment:
The Criminal Code Amendment Act of 2010, which went into effect as emergency legislation on January 18, 2011, prohibits a person who is incarcerated from tampering with an electronic monitoring, GPS or radio frequency identification device. The instruction has been amended accordingly. This instruction was added in the 2010 release. It tracks the language of the Omnibus Public Safety and Justice Amendment Act of 2009 (Act 18-189). The first emergency version of this section (Act 17-650) went into effect on January 6, 2009, and expired at midnight on April 6, 2009. The Congressional Review Emergency (Act 18-41) went into effect at 5:00 p.m. on April 7, 2009, so there is a 17-hour gap. The Temporary Act (Act 17-712) went into effect on July 3, 2009, and was in effect until the first emergency of the Omnibus went into effect on August 6, 2009. The earlier Acts referred to wearing a device "as a condition of supervision pursuant to a protection order." The phrase "supervision pursuant to" was deleted in the Omnibus, so that it now reads "as a condition of a protection order."
Page 491
185 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.120 Instruction 6.120 BRIBERY
D.C. Official Code 22-711 to 22-713 (2001) A. BRIBERY OF OR BY A PUBLIC SERVANT (D.C. Official Code 22-712 (2001)) The elements of bribery, each of which the government must prove beyond a reasonable doubt, are that: [Bribery of a Public Servant]
1. [Name of defendant] [offered to give] [agreed to give] [gave] anything of value, directly or indirectly, to a public servant; and 2. S/he did so in return for an agreement or understanding that [an official act of the public servant would be influenced by the [offer] [agreement to give] [gift]] [the public servant would violate an official duty] [the public servant would commit, help commit or allow any fraud against the District of Columbia].
[Bribery by a Public Servant]
The elements of the offense of bribery, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] was a public servant; 2. As a public servant, s/he [solicited] [demanded] [accepted] [agreed to accept] anything of value,
directly or indirectly; and 3. S/he did so in return for an agreement or understanding that [an official act of his/hers would be influenced by the [offer] [agreement to give] [gift]] [s/he would violate an official duty] [s/he would commit, help commit or allow any fraud against the District of Columbia].
Definitions Applicable to Bribery of and by a Public Servant
A "public servant" is any [officer] [employee] [person authorized to act for or on behalf] of the District of Columbia government] [juror], [whether elected, nominated or appointed]. [A juror is any person selected or summoned as a prospective juror or grand juror in the District of Columbia.] [An independent contractor is not a "public servant".] [An "official act" is any [decision] [opinion] [recommendation] [vote] [conduct that involves an exercise of discretion] by a public servant.] [An "official duty" is any required conduct that does not involve an exercise of discretion by a public servant.] [Insert definition of "anything of value" from No. 3.106--Property or Property of Another--Defined, if necessary or useful.] B. BRIBERY OF A WITNESS (D.C. Official Code 22-712 (2001)) The elements of the offense of bribery, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] [offered to give] [agreed to give] [gave] [solicited] [demanded] [accepted] [agreed to accept] [to] [from] another person anything of value; and 2. S/he did so in return for an agreement or understanding that the recipient's testimony would be influenced in an official proceeding before [the Superior Court of the District of Columbia] [the Court of Appeals of the District of Columbia] [any agency or department of the District of Columbia government] or that the recipient would not attend that proceeding.
An "official proceeding" is any trial, hearing or other proceeding in [any court of the District of Columbia] [any agency or department of the District of Columbia government]. [Insert definition of "anything of value" from No. 3.106--Property or Property of Another--Defined, if necessary or useful.] ____________________________________ Comment: The law is divided into three subsections: a definitional section, 22-711; one pertaining to public servants, 22-712, and one involving witnesses, 22-713. This instruction is divided into two main parts, with two sub-parts in each, to allow the court to select an instruction appropriate to the facts. The bracketed material in each instruction offers further choices. In some cases, the court will need only one selection in each category. In others, the court may need to combine selections. Although the statute contains the term "corruptly", the Committee in the Fifth Edition deleted that term and the definition because it concluded that the elements adequately conveyed the requirement that the
defendant must have offered something of value with the intent to influence a public official in the performance of his or her duties or influence a witness's testimony. The gravamen of the offense is a quid pro quo in which "acts are done in return for an agreement or understanding." See Report of the Committee of the Judiciary on Bill No. 4-133, the District of Columbia Theft and White Collar Crimes Act of 1982, at 21. The objects of the forbidden agreements are set out in the statute and are in the alternative. The government need only prove one. See, e.g., Colbert v. U.S., 601 A.2d 603, 606-07 (D.C. 1992) (government introduced sufficient evidence that defendant accepted or agreed to accept something of value in exchange for an agreement that an official act would be influenced; government not required also to show fraud). The government need not prove that the defendant fulfilled the illegal bargain. U.S. v. Brewster, 408 U.S. 501, 526 (1972) . The phrases "directly or indirectly" is intended to reach the use of an intermediary or the situation in which it is agreed or understood that the thing of value will be given to a person or entity other than the public servant. Report at 20. The definitions in the instruction track the language of the statute, 22-711, with modifications for clarity and succinctness. The definition of "anything of value" is found in D.C. Official Code 22-1802 (2001) and in No. 3.106, Property or Property of Another--Defined. The Committee recommends not giving the definition in the ordinary case--for example, where money is involved. Other circumstances may warrant or necessitate giving the definition. Both subsections proscribing the forbidden conduct contain provisos exempting certain conduct from their reach. See 22-712(b), 22-713(b). Where defenses are raised consistent with those provisos, an appropriate instruction will need to be given. An "independent contractor" is not a public servant. 22-711(6). The question of whether a person is an independent contractor "turns on the actual control exercised by the District of Columbia government over the contractor." Extension of Comments on Bill No. 4-133: The District of Columbia Theft and White Collar Crimes Act of 1982, submitted by Councilmember David A. Clarke, at 68 (July 20, 1982). Cross references: No. 3.106, Property or Property of Another--Defined; No. 6.101, Obstructing Justice; No. 6.114, Tampering with Physical Evidence.
Page 494
186 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.121 Instruction 6.121 EXTORTION
D.C. Official Code 22-3251 (2001) A. EXTORTION BASED ON ACTUAL OR THREATENED FORCE OR VIOLENCE The elements of the offense of extortion, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] obtained or attempted to obtain [name of complainant's] property with [name of complainant's] consent; and 2. [Name of complainant's] consent to part with his/her property was induced by wrongful [use of actual or threatened force or violence] [threat of economic injury].
"Property" means anything of value. [Insert further definition of "Property of Another" from No. 3.106, Property or Property of Another--Defined, if necessary or useful under the circumstances of the case.] [Force or violence includes damage to property as well as to the person.] [To prove that the defendant's conduct was wrongful the government must prove that the defendant had no lawful claim to the property s/he obtained or sought to obtain, and that the defendant knew s/he had no such claim.] [If the victim was under 18 or was 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103, if the extortion was accompanied by threats of violence.]
B. EXTORTION BASED ON COLOR OR PRETENSE OF OFFICIAL RIGHT The elements of the offense of extortion, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] obtained or attempted to obtain [name of complainant's] property with [name of complainant's] consent; and 2. [Name of complainant's] consent to part with his/her property was obtained under color or pretense of official right.
"Property" means anything of value. [Insert further definition of "Property of Another" from No. 3.106, Property or Property of Another--Defined, if necessary or useful under the circumstances of the case.] To prove that [name of complainant's] consent was obtained under color or pretense of official right the government must prove that [name of defendant] used the power and authority of his/her office in order to obtain [name of complainant's] consent to part with property to which the defendant had no official right. [The government must prove that the defendant made a promise of official action or inaction in exchange for [name of complainant's] consent to part with his/her property.] There is no requirement that the defendant have had the actual power to perform or forego the action on the basis of which the consent was given, so long as [name of complainant] reasonably believed that the defendant had the official power to do so. ____________________________________ Comment: The Theft and White Collar Crimes Act of 1982 amended and recodified the predecessor statute, D.C. Code 22-2306. The new statute was largely derived from the Hobbs Act, 18 U.S.C. 1951, and is similar to the Maryland extortion statute, M.D. Code, Art. 27, 562B and 562C. See Report of the Committee of the Judiciary on Bill No. 4-133, the District of Columbia Theft and White Collar Crimes Act of 1982, at 18 (D.C. June 1, 1982) (hereafter cited as "Report"); Extension of Comments on Bill No. 4-133: The District of Columbia Theft and White Collar Crimes Act of 1982, submitted by Councilmember David A. Clarke, at 68 (July 20, 1982) (cited hereafter as "Clarke"). The Committee consulted federal and Maryland cases, and pattern jury instructions from those jurisdictions, in drafting this instruction. The instruction is divided into two parts to conform to the division in the statute between extortion by means of threats of harm and extortion under color of official authority. Both subsections of section (a) of the statute proscribe attempting to obtain the "property of another with the other's consent" under extortionate circumstances. Ordinarily, absent special circumstances requiring detailed definitions under D.C. Official Code 22-3201 (2001), to prove "property of another" under the Theft and White Collar Crimes Act, the government need only prove that the object was anything of value not owned by the defendant. See Baldwin v. U.S., 521 A.2d 650 (D.C. 1987) ; Alston v. U.S., 509 A.2d 1129, 1131 (D.C. 1986) ; Carmon v. U.S., 498 A.2d 580, 583 (D.C. 1985) . The wording of the extortion statute, however, appears to require that the property be the property of the person whose consent was obtained, and the first element so provides. The first explanatory paragraph makes clear that "property" is "anything of value". In some cases, a fuller definition of "property" drawn from D.C. Official Code 22-3201 (2001) will be required. See Instruction No. 3.106, Property or Property of Another--Defined.
The second element in each instruction follows the language of the statute. The Committee was of the view that no explanatory instruction is needed. The third element in each instruction also follows the statutory language. The first bracketed explanatory paragraph to the third element in part A is appropriate where the threat is to harm property. See Clarke at 69. The second bracketed explanatory paragraph to the third element in part A must be given where the facts show a threat of economic injury--for example, in a labor-management dispute or a consumer boycott--and there is a claim-of-right-defense. See Report at 18; Clarke at 69 (each stating that "wrongful" is intended to preclude convictions in labor-management disputes and consumer boycotts except where the threat is to obtain anything of value for the personal gain of the defendant unrelated to the interests of the group he or she represents). Under federal law, the explanatory paragraph would also be needed where violence was threatened in a labo r-management dispute and the defendant claims that his or her objective was to obtain an employer's agreement to legitimate collective bargaining demands. U.S. v. Enmons, 410 U.S. 396, 399-412 (1973) (construing "wrongful" in the Hobbs Act). The language of the explanatory paragraph is from id. at 400 . Whether or not the explanatory paragraph must be given in all cases where a claim-of-right defense is raised is not clear. The statute uses "wrongful" with respect to all cases. But the Enmons decision has been interpreted almost universally to apply only to labor-management disputes. See U.S. v. Kattar, 840 F.2d 118, 123-25 (1st Cir. 1988) ; U.S. v. Agnes, 753 F.2d 293, 298-99 (3d Cir. 1985) ; U.S. v. Cohen, 738 F.2d 287, 289 (8th Cir. 1984) ; U.S. v. Porcaro, 648 F.2d 753, 759-61 (1st Cir. 1981) ; U.S. v. Zappola, 677 F.2d 264, 269 (2d Cir. 1982) ; U.S. v. French, 628 F.2d 1069, 1074-75 (8th Cir. 1980) ; U.S. v. Warledo, 557 F.2d 721, 729-30 (10th Cir. 1977) ; but see U.S. v. Sturm, 870 F.2d 769, 772-73 (1st Cir. 1989) (noting that prosecution under Hobbs Act for wrongful economic threats outside labor-management context may be possible where defendant has claim of right to property), and the legislative history of the D.C. statute discusses "wrongful" in the context of labor-management disputes and consumer boycotts. Report at 13; Clarke at 69. The Committee has not attempted to resolve the question but has placed the language in brackets for use by the judge as he or she may decide. If the judge decides not to allow the claim-of-right defense, it is recommended that "wrongful" be omitted from element three or that, if it is retained, the jury be told that if it finds use of actual or threatened force or violence, wrongfulness is established. Federal cases have held that, under the Hobbs Act, threats of harm must be such as to cause a "reasonable" fear. See, e.g., U.S. v. Tolub, 309 F.2d 286, 288 (2d Cir. 1962) . An instruction incorporating this point may be appropriate in some cases. In the explanatory material to the third element in part B, the first sentence was originally based on 2 Devitt, Blackmar & O'Malley, Federal Jury Practice and Instructions, 45.09 at p. 650 (4th ed. 1990). The second, bracketed, sentence was based on McCormick v. U.S., 500 U.S. 257, 273 (1991) , which held that an elected official could not be convicted for obtaining campaign contributions unless there is proof that the contributions were made "in return for an explicit promise or undertaking by the official to perform or not to perform an official act." The Committee takes no position on whether this sentence must be given in other contexts. Cf. Id. at 187 n.10 . The third sentence in the explanatory paragraph was derived from Clarke at 70 ("Proof of extortion 'under color o[f] official right' thus requires a showing that the extorted party had at least a reasonable belief that the offender had the official power through which the extortion was performed."). The statute proscribes attempts as well as completed crimes. In cases where attempts are charged, the court should read the elements of extortion and the instruction on attempt, No. 7.101. The last bracketed sentence of Part A of the instruction applies when the victim is a minor or a senior citizen and the extortion is accompanied by threats of violence. Section 220 of the Omnibus Public
Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen enhancement when the victim was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. That Act went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. The law became final in 2007. In the 2007 release, a new instruction, No. 8.103, was added which addressed sentencing enhancements based on age. Therefore, a cross reference to the new instruction was added to Part A of this instruction. In addition, in those cases the jury should also be instructed that it must find that the extortion was accompanied by threats of violence. The reference to an enhanced penalty if the victim is a senior in Part B has been deleted because the Omnibus Act's amendment to D.C. Official Code 22-3601 (2001) limited the enhancement only to extortion that was accompanied by threats of violence. See also Battle v. U.S., 515 A.2d 1120, 1125-26 (D.C. 1986) (prior extortion statute applicable to threat originating outside of the District but received in it). Cross references: No. 3.106, Property or Property of Another--Defined; No. 4.130, Threats; No. 8.103, Sentencing Enhancements Based on Age.
Page 498
187 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.122 Instruction 6.122 BLACKMAIL
The elements of the offense of blackmail, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] threatened [to accuse [insert name of person] of a crime] [to expose a secret or publicize an asserted fact, whether true or false, tending to subject [insert name of person] to hatred, contempt, or ridicule] [to impair the reputation of [insert name of person]; and 2. S/he intended to obtain property of another or cause another person to do or refrain from doing any act. Property of another means anything of value owned by someone other than the defendant. [Insert further definition of "Property of Another" from No. 3.106, Property or Property of Another--Defined, where necessary or useful under the circumstances of the case.] [It does not matter that [insert name of person whose reputation the defendant allegedly threatened to impair] was dead at the time of the alleged threat.] [If the victim is under 18 or 60 years of age or older, insert Sentencing Enhancements Based on Age, No. 8.103, if the blackmail was accompanied by threats of violence.]____________________________________ Comment:
Section 152 of the Theft and White Collar Crimes Act of 1982, codified at D.C.Code 22-3852 (1981), proscribed the same type of threats proscribed by the predecessor statute, D.C. Code 22-2305 (1981), except that the threat to injure reputation was proscribed by the former extortion statute, D.C. Code 22-2306 (1981). See The District of Columbia Theft and White Collar Crimes Act of 1982, Report of the Committee on the Judiciary (June 1, 1982) at 19. The intent requirement is consistent with prior law. Id. "Property" is defined as "anything of value." D.C. Official Code 22-3201(3) (2001). To prove that property was "property of another" the government need only prove that "the owner ... was someone other than the defendant"). Carmon v. U.S., 498 A.2d 580, 582-83 and n. 4 (D.C. 1985) . See also Baldwin v. U.S., 521 A.2d 650 (D.C. 1987) (proof that defendant took dresses with price tags out of store, then returned and left them in store, sufficient to prove property of another); Alston v. U.S., 509 A.2d 1129, 1130-31 (D.C. 1986) (government need not prove that property was not property as to which owner had only security interest, nor prove that department store was licensed and owned the property). The Committee has combined the definition of "property" and "property of another" in one definition, which, in the Committee's judgment, will suffice in the ordinary case. Some cases may need further instruction on these concepts. For further comment, see comment to No. 3.106, Property or Property of Another--Defined. The next to last bracketed explanatory material need only be given when the subject of the threat to impair reputation was dead when the threat was made. The statute explicitly proscribes a threat to impair the reputation of "any person, including a deceased person." D.C. Official Code 22-3252 (2001). The last bracketed sentence of the instruction applies when the victim is a minor or a senior citizen and the blackmail is accompanied by threats of violence. Section 220 of the Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 22-3601 (2001) to add a senior citizen enhancement when the victim was 60 years of age or older. Section 102 of that Act created a new enhancement for crimes of violence against minors. That Act went into effect on July 19, 2006, as the Omnibus Public Safety Emergency Amendment Act of 2006, and remained in effect under emergency legislation except for October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. The permanent law is found at D.C. Act 16-482. The law became final in 2007. In the 2007 release, a new instruction, No. 8.103, was added which addressed sentencing enhancements based on age. Therefore, a cross reference to the new instruction was added to this instruction. In addition, in those cases the jury should also be instructed that it must find that the blackmail was accompanied by threats of violence. Cross references: No. 3.106, Property or Property of Another--Defined; No. 4.130, Threats; No. 6.121, Extortion; No. 8.103, Sentencing Enhancements Based on Age.
Page 500
188 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 1. Contempt, Obstruction of Justice, Bribery 1-VI Criminal Jury Instructions for DC Instruction 6.130 Instruction 6.130 FALSE PERSONATION
D.C. Official Code 22-1404 and 22-1406 (2001) A. FALSELY IMPERSONATING A POLICE OFFICER OR OTHER PUBLIC MINISTER (D.C. Official Code 22-1404) The elements of the offense of falsely impersonating a police officer [or other public minister], each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] falsely represented [him/herself] to be a [judge of the Superior Court] [notary public] [police officer] [other public officer] [a minister qualified to celebrate marriage]; [and] 2. [Name of defendant] [made statements] or [took actions] in an effort to perform the duty or exercise the authority of a [judge of the Superior Court] [notary public] [police officer] [other public officer] [a minister qualified to celebrate marriage]; [and] [3. S/he did so knowing [his/her [appointment] [commission] [term] had expired] [or][s/he has been dismissed from such office].] B. FALSE PERSONATION OF A POLICE OFFICER (D.C. Official Code 22-1406) The elements of the offense of false personation of a police officer, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] falsely represented himself/herself to be a member of the police force; and
2. [Name of defendant] made this false representation to deceive another in order to gain some kind of advantage.
The false representation may be accomplished by words or actions. [The advantage that a defendant seeks to obtain through the false personation need not be monetary or even material in nature.] ____________________________________ Comment: This is a new instruction in the Fifth Edition. Part A pertains to the felony offense of falsely impersonating a police officer in D.C. Official Code 22-1404, which subjects the defendant to a penalty of one to three years in jail. This statute was construed in Williams v. U.S., 404 A.2d 189 (D.C. 1979) (offense committed where defendant announced himself as a police officer, displayed a false badge and handcuffs, and attempted to exercise a police function). Part B pertains to the misdemeanor offense, punishable by up to 180 days in jail and a $1,000 fine, pursuant to D.C. Official Code 22-1406 (2001). This statute was recently construed by the court in Gary v. U.S., 955 A.2d 152 (D.C. 2008) (evidence of false personation sufficient where defendant intentionally conveyed the impression that he was a police officer to a passing motorist by displaying a badge, having a red light on the dashboard of his car, and threatening the motorist with arrest).
Page 502
189 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 2. Scope 1-VI Criminal Jury Instructions for DC Instruction 6.200 Instruction 6.200 POSSESSION OF A CONTROLLED SUBSTANCE
D.C. Official Code 48-904.01(d) and 48-904.08 (2001); 21 U.S.C. 844(a) A. CONTROLLED SUBSTANCES OTHER THAN LIQUID PCP The elements of possession of a controlled substance, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] possessed a [measurable] [detectable] amount of a controlled substance; and 2. S/he did so voluntarily and on purpose, not by mistake or accident.
The law makes [name of controlled substance] a controlled substance. In order to decide whether the material was [name of controlled substance], you may consider all evidence that may help you, including exhibits, expert and non-expert testimony. [Read Instruction 3.104, Possession--Defined, if necessary.] [The government is not required to prove that [name of defendant] knew the precise type of controlled substance that s/he possessed. The government must prove beyond a reasonable doubt, however, that s/he knew that s/he possessed some type of controlled substance.] B. LIQUID PCP The elements of possession of liquid phencyclidine (PCP), each of which the government must prove beyond a
reasonable doubt, are that: 1. [Name of defendant] possessed a measurable amount of phencyclidene; [and] [2. At the time [name of defendant] possessed the phencyclidene, it was in liquid form; and] 3. S/he did so voluntarily and on purpose, not by mistake or accident. ____________________________________ Comment: The 2011 release modified this instruction to relabel the existing section as "A" and add a new section "B" for the felony offense created by The Liquid PCP Possession Amendment Act of 2010 (Act 18-408), which went into effect on July 23, 2010. It also deleted the final paragraph addressing aggravating circumstances in federal court because the federal law was changed so that simple possession of 5 grams of crack no longer requires a mandatory five year sentence. As a result, there is no longer any need for the jury to make a finding as to the amount a defendant possessed. In Superior Court, the proper standard for evaluating the amount required for drug prosecutions under the D.C. Offiical Code is a "measurable amount" (rather than a "usable" amount), Thomas v. U.S., 650 A.2d 183 (D.C. 1994) (en banc). The Thomas court noted that while "it would not ordinarily be necessary to instruct the jury any further on [the definition of measurable], the term measurable is defined as capable of being measured or quantified." Id. at 197, n.48 . A measurable amount may be proven by direct or circumstantial evidence. Id. at 197 . In federal court, the proper standard for evaluating the amount required for prosecutions under the U.S. Code is a "detectable amount," (rather than "measurable"), 21 U.S.C. 841(b); U.S. v Webb, 255 F.3d 890, 347 U.S. App. D.C. 162 (2001) ; U.S. v. Fields, 242 F.3d 393, 345 U.S. App. D.C. 205 (2001) . The possession of a drug must have been knowing and intentional. Hack v. U.S., 445 A.2d 634 (D.C. 1982) ; U.S. v. Watkins, 171 U.S. App. D.C. 158, 519 F.2d 394 (1975) . A defendant knowingly and intentionally possesses a drug if he does so consciously, voluntarily and purposely, and not because of mistake, inadvertence or accident. Carver v. U.S., 312 A.2d 773 (D.C. 1973) . See also, Stewart v. U.S., 439 A.2d 461 (D.C. 1981) (defense of innocent possession); U.S. v. Forbes, 515 F.2d 676, 169 U.S. App. D.C. 217 (1975) (proof of valid prescription as affirmative defense). But see Gorham v. U.S., 339 A.2d 401 (D.C. 1975) (en banc) (addiction not a defense to simple possession); U.S. v. Moore, 486 F.2d 1139, 158 U.S. App. D.C. 375 (1973) (en banc) (same). Where constructive or joint possession is at issue, the judge should read the definition of possession as set forth in Instruction 3.104. Where constructive or joint possession is not at issue, the Committee recommends that the court omit Instruction 3.104 as unnecesary. See also U.S. v. Raper, 676 F.2d 841, 219 U.S. App. D.C. 243 (1982) (aiding and abetting possession of drugs). For the completed crime of possession of any controlled substance, "the government must prove that the substance possessed was, in fact, the controlled substance in question," Fields v. U.S., 952 A.2d 859, 864 (D.C. 2008) (quoting from Seeney v. U.S., 563 A.2d 1081, 1083 (D.C. 1989)) . For the completed crime of possession of a controlled substance other than liquid PCP, it is not necessary that the government prove that the defendant had actual knowledge as to the type of controlled substance that he or she possessed; the government must prove that the defendant believed that he or she possessed some controlled substance. Carter v. U.S., 591 A.2d 233, 234-235 (D.C. 1991) ; U.S. v. Branham, 515 F.3d 1268, 1275, 380 U.S. App. D.C. 45, 52 (2008) . The Committee has provided bracketed language which
may be given in a case where this is an issue. The bracketed language should not be given, however for a charge of attempted possession of a controlled substance. For the crime of attempted possession of a controlled substance, the government must prove that the defendant had the requisite criminal intent, that is the government must prove that the defendant intended to possess the controlled substance charged in the information or indictment; it need not prove, however, that the substance possessed was in fact the controlled substance charged. See Fields, 952 A.2d at 865, 868 ; Digsby v. U.S., 981 A.2d 598 (D.C. 2009) . In an attempted possession case, this instruction should be modified accordingly. The possession of a mixture of two controlled substances constitutes two separate offenses. Corbin v. U.S., 481 A.2d 1301 (D.C. 1984) (PCP and marijuana). Joint indictment of a defendant under the federal and District of Columbia controlled substances statutes is permissible. See D.C. Official Code 11-502(3) (2001); U.S. v. Kember, 648 F.2d 1354, 208 U.S. App. D.C. 380 (1980) . An acquittal or conviction under the federal narcotics law, however, precludes subsequent trial on a local narcotics charge for the same offense. See D.C. Official Code 48-904.05 (2001). The current D.C. Code outlaws all species of cannabis, regardless of THC content, Craig v. U.S., 490 A.2d 1173 (D.C. 1985) . See also U.S. v. Walton, 514 F.2d 201, 168 U.S. App. D.C. 305 (1975) (Controlled Substances Act includes all species of marijuana). See generally Emry v. U.S., 829 A.2d 970, 972 (D.C. 2003) (Court of Appeals has not adopted medical necessity defense and did not decide "whether medical necessity can ever be a defense to the unlawful possession of marijuana. Even assuming such a defense exists in this jurisdiction, the facts presented here are insufficient to support its application."); Whyte v. U.S., 471 A.2d 1018 (D.C. 1984) (religious use of marijuana not a defense). See also U.S. v. Oakland Cannabis Buyers' Co-op, 532 U.S. 483 (2001) (state "compassionate use" statute provides no immunity form federal law prohibiting possession of marijuana). Cross references: No. 3.104, Possession--Defined.
Page 505
190 of 274 DOCUMENTS Criminal Jury Instructions for the District of Columbia Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group. IV. Offenses C. Public Order Offenses 2. Scope 1-VI Criminal Jury Instructions for DC Instruction 6.201 Instruction 6.201 POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE
D.C. Official Code 48-904.01 (2001); 21 U.S.C. 841(a)(1)
The elements of possession with intent to distribute a controlled substance, each of which the government must prove beyond a reasonable doubt, are that: 1. [Name of defendant] possessed a [measurable] [detectable] amount of a controlled substance; and 2. S/he did so voluntarily and on purpose, not by mistake or accident. 3. When s/he did so, s/he intended to distribute, that is transfer to another person, the controlled substance. The government need not prove that [name of defendant] received or expected to receive anything of value in return. The law makes [name of controlled substance] a controlled substance. In order to decide whether the material was [name of controlled substance], you may consider all evidence that may help you, including exhibits, expert and non-expert testimony. [The government is not required to prove that the defendant knew the precise type of controlled substance that s/he possessed. The government must prove beyond a reasonable doubt, however, that the defendant knew that s/he possessed some type of controlled substance.] [Read Instruction 3.104, Possession--Defined, if necessary.]
Aggravating Circumstances--Superior Court A. Felony possession of marijuana with intent to distribute (D.C. Official Code 48-904.01(A)(2)(B) (2001)) If you find beyond a reasonable doubt that [name of defendant] possessed marijuana with the intent to distribute it, you should go on to decide, beyond a reasonable doubt, whether the amount of marijuana that s/he possessed with the intent to distribute was more than 1/2 pound. [There is a separate place on the verdict form for you to indicate whether the government has proven this amount.] B. Possession with intent to distribute in a drug free zone (D.C. Official Code 48-904.07a (2001)) If you find beyond a reasonable doubt that [name of defendant] possessed with intent to distribute [name of controlled substance], you should go on to determine, beyond a reasonable doubt, whether: 1. S/he possessed [name of controlled substance] [within 1,000 feet of a [public or private [day care center] [[elementary,] [vocational,] or [secondary] school,] [college,] [junior college,] [or] [university]] [public swimming pool] [playground] [video arcade] [youth center] [public library]] [in or around public housing] [in or around an event sponsored by [name of foregoing entity]; and 2. There was a sign identifying [name of entity] as a drug free zone.
The government is not required to prove that [name of defendant] actually knew that s/he was [within 1,000 feet of] [in or around] a [name of entity] when s/he committed the offense. The government must only prove that s/he was in fact within that distance when s/he committed the offense.] [There is a separate place on the verdict form for you to indicate whether the government has proven the aggravating circumstance of possession with intent to distribute a controlled substance in a drug-free zone]. Aggravating Circumstances--U.S. District Court A. Quantity (21 U.S.C. 841(b)) If you find beyond a reasonable doubt that [name of defendant] possessed with intent to distribute [name of controlled substance], you should go on to decide, beyond a reasonable doubt, whether the possession involved [relevant quantity or quantities] or more of a substance or mixture that contained [name of controlled substance]. [There is a separate place on the verdict form for you to indicate whether the government has proven [this amount] [any of these amounts].] B. Possession with intent to distribute in, on, or near a protected entity (21 U.S.C. 860) If you find beyond a reasonable doubt that [name of defendant] possessed with intent to distribute [name of controlled substance], you should go on to determine, beyond a reasonable doubt, whether s/he possessed [name of controlled substance] [in, on, or within 1,000 feet of the real property of a [public or private [[elementary,] [vocational,] or [secondary] school] [college] [junior college] [university]] [playground] [housing facility owned by a public housing authority]] [within 100 feet of a [public or private youth center] [public swimming pool] [video arcade facility]].
The government is not required to prove that [name of defendant] actually knew that s/he was [in, on or within 1,000 feet of] [within 100 feet of] a [name of entity] when s/he committed the offense. The government must only prove that s/he was in fact within that distance when s/he committed the offense.] [There is a separate place on the verdict form for you to indicate whether the government has proven the aggravating circumstances of possession with intent to distribute a controlled substance near a protected entity.] ____________________________________ Comment: In Superior Court, the proper standard for evaluating the amount required for drug prosecutions under the D.C. Code is a "measurable amount" (rather than a "usable" amount), Thomas v. U.S., 650 A.2d 183 (D.C. 1994) (en banc). The Thomas court noted that while "it would not ordinarily be necessary to instruct the jury any further on [the definition of measurable], the term measurable is defined as capable of being measured or quantified." Id. at 197, n.48 . A measurable amount may be proven by direct or circumstantial evidence. Id. at 197 . In federal court, the proper standard for evaluating the amount required for prosecutions under the U.S. Code is a "detectable amount" (rather than "measurable"), 21 U.S.C. 841(b); U.S. v Webb, 255 F.3d 890, 347 U.S. App. D.C. 162 (2001) ; U.S. v. Fields, 242 F.3d 393, 345 U.S. App. D.C. 205 (2001) . The possession of a drug must have been knowing and intentional. Hack v. U.S., 445 A.2d 634 (D.C. 1982) ; United States v. Watkins, (1975), 519 F.2d 294 . A defendant knowingly and intentionally possesses a drug if he does so consciously, voluntarily and purposely, and not because of mistake, inadvertence or accident. Carver v. U.S., 312 A.2d 773 (D.C. 1973) . The government must also prove that the defendant intended to distribute the drug. Cash v. U.S., 648 A.2d 964 (D.C. 1994) (per curiam) (trial court committed reversible error when, during final instructions, the court gave the instruction for simple possession of a controlled substance, rather than the instruction for possession with intent to distribute; thus the jury was never told that, in order to convict, it must be satisfied that the government proved that the defendant had the specific intent to distribute the controlled substance); Samson v. U.S., 692 A.2d 437 (D.C. 1997) (court's omission of the element requiring the government to establish that the marijuana was possessed with the specific intent to distribute it constituted error requiring reversal of the greater offense of attempted possession with intent to distribute). Intent to distribute is most often proven by expert testimony that the quantity of drugs possessed and/or the circumstances of the possession are characteristic of a dealer rather than a user. See Boddie v. U.S., 865 A.2d 544 (D.C. 2005) ; U.S. v. Boyd, 435 F.3d 316, 369 U.S. App. D.C. 204 (2006) . It may be proved by circumstantial evidence such as the quantity of a controlled substance found in the defendant's possession, its packaging, the purity of the substance found, and/or the possession of such paraphernalia as empty glassine or ziplock bags, dilutants, a scale, or documents listing amounts purchased and the price. See U.S. v. Herron, 567 F.2d 510, 185 U.S. App. D.C. 403 (1977) ; U.S. v. James, 494 F.2d 1007, 161 U.S. App. D.C. 88 (1974) ; Harmelin v. Michigan, 501 U.S. 957 (1991) (evidence of beeper, coded phone book and gun were circumstantial evidence of possession with intent to distribute). But see Doreus v. U.S., 964 A.2d 154 (D.C. 2009) (circumstantial evidence insufficient to prove attempted possession with intent to distribute); U.S. v. Stephens, 23 F.3d 553, 306 U.S. App. D.C. 245 (1994) (same). The government may also introduce evidence of sales immediately prior, Howard v. U.S., 867 A.2d 967 (D.C. 2005) and prior possessions with intent to distribute, see U.S. v. Pettiford, 517 F.3d 584, 380 U.S. App. D.C. 144 (2008) . Where constructive or joint possession is at issue, the judge should read the definition of possession as set forth in Instruction 3.104. Where constructive or joint possession is not at issue, the Committee recommends that the court omit Instruction 3.104 as unnecesary. See also U.S. v. Raper, 676 F.2d 841, 219 U.S. App. D.C. 243 (1982) (aiding and abetting possession of drugs).
For the crime of completed possession, "the government must prove that the substance possessed was, in fact, the controlled substance in question," Fields v. U.S., 952 A.2d 859, 864 (D.C. 2008) (quoting from Seeney v. U.S., 563 A.2d 1081, 1083 (D.C. 1989)) . It is not necessary that the government prove that the defendant had actual knowledge as to the type of controlled substance that he or she possessed; the government must prove that the defendant believed that he or she possessed some controlled substance. Carter v. U.S., 591 A.2d 233, 234-35 (D.C. 1991) ; U.S. v. Branham, 515 F.3d 1268, 1275, 380 U.S. App. D.C. 45, 52 (2008) . The Committee has provided bracketed language which may be given in a case where this is an issue. The bracketed language should not be given, however, for a charge of attempted possession of a controlled substance. For the crime of attempted possession of a controlled substance (with the intent to distribute), the government must prove that the defendant had the requisite criminal intent, that is the government must prove that the defendant intended to possess the controlled substance charged in the information or indictment; it need not prove, however, that the substance possessed was in fact the controlled substance charged. See Fields, 952 A.2d at 865, 868 ; Digsby v. U.S., 981 A.2d 598 (D.C. 2009) . In an attempted possession case, this instruction should be modified accordingly. The possession of a mixture of two controlled substances constitutes two separate offenses. Corbin v. U.S., 481 A.2d 1301 (D.C. 1984) (PCP and marijuana). Joint indictment of a defendant under the federal and District of Columbia controlled substances statutes is permissible. See U.S. v. Jones, 527 F.2d 817, 174 U.S. App. D.C. 34 (1975) (joint indictment under federal and District of Columbia narcotics statutes permissible); U.S. v. Kember, 648 F.2d 1354, 208 U.S. App. D.C. 380 (1980) ; D.C. Official Code 11-502(3) (2001). An acquittal or conviction under the federal narcotics law, however, precludes subsequent trial on a local narcotics charge for the same offense. See D.C. Official Code 48-904.05 (2001). The current D.C. Code outlaws all species of cannabis, regardless of THC content, Craig v. U.S., 490 A.2d 1173 (D.C. 1985) . See also U.S. v. Walton, 514 F.2d 201, 168 U.S. App. D.C. 305 (1975) (Controlled Substances Act includes all species of marijuana). See generally Emry v. U.S., 829 A.2d 970, 972 (D.C. 2003) (Court of Appeals has not adopted medical necessity defense and did not decide "whether medical necessity can ever be a defense to the unlawful possession of marijuana. Even assuming such a defense exists in this jurisdiction, the facts presented here are insufficient to support its application."); Whyte v. U.S., 471 A.2d 1018 (D.C. 1984) (religious use of marijuana not a defense). See also U.S. v. Oakland Cannabis Buyer's Co-op, 532 U.S. 483 (2001) (state "compassionate use" statute provides no immunity form federal law prohibiting possession of marijuana). Aggravating Circumstances With respect to the possession with intent to distribute marijuana charges in Superior Court, a defendant is eligible for a felony sentence if he or she possesses one-half pound or more of marijuana or has a prior conviction for manufacturing, distributing or possession with intent to distribute a controlled substance. While the jury need not find the existence of the prior conviction, in the absence of such a conviction, it would have to find the weight of the marijuana was one half pound or more before a felony sentence could be imposed. The Committee has included an aggravating circumstance concerning the weight. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) , the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Given the holding in Apprendi, the government must prove to the jury beyond a reasonable doubt the aggravating circumstances which could lead to a greater maximum sentence. The aggravating circumstances are separated out since they must be addressed only if a defendant is found guilty of the underlying offense.
They are also separated by jurisdiction, since the statutory requirements for aggravating circumstances are different in Superior Court and federal court. The most significant difference between the two is that proof of the quantity of a controlled substance affects the maximum sentence under the federal law. See U.S. v. Lafayette, 337 F.3d 1043, 1048, 358 U.S. App. D.C. 1, 6 (2003) ("before a defendant can be sentenced to any of the progressively higher statutory maximums that are based on progressively higher quantities of drugs specified in subsections 841(b)(1)(A) or (B), the Government must state the drug type and quantity in the indictment, submit the required evidence to the jury, and prove the relevant drug quantity beyond a reasonable doubt."). However, under D.C. law, with the exception of marijuana and certain Schedule V prescription medications, quantity does not affect the maximum available sentence for the possession with intent to distribute any controlled substance. In federal court, and with respect to the possession with intent to distribute of marijuana in Superior Court, the maximum sentence which may be imposed can depend not only on the quantity of drugs involved, but also the defendant's prior criminal record. Under Almendarez-Torres v. United States, 523 U.S. 224 (1998), 118 S. Ct. 1219, 140 L. Ed. 2d 350 , it appears that a prior conviction that increases a maximum sentence is not an element that must be presented to a jury. Thus, the aggravating circumstances instructions do not include language regarding prior convictions. Instructions are provided for both Superior Court and federal court when the indictment alleges, and the government proves that the possession with intent to distribute occurred in, on or within certain distances of entities which the respective legislature has deemed worthy of special protection, such as schools. See 21 U.S.C. 860(a); D.C. Official Code 48.904.07a (2001). The Omnibus Public Safety Amendment Act of 2006 amended D.C. Official Code 48-904.07a (2001) to require that the drug free zones must be "appropriately identified" as such. That statute went into effect on July 19, 2006. It remained in effect under various Emergency Acts (Act 16-490, Act 17-10 and Act 17-25). The law was not in effect for the following two periods--from October 17, 2006, at midnight until October 18, 2006, at 5:00 p.m. and from April 16, 2007, at midnight until April 19, 2007, at 5 p.m. The permanent law went into effect on April 24, 2007. With regard to this enhancement, the government need not prove that the defendant knew about the proximity of the protected entity which triggers the enhancement. U.S. v. Holland, 810 F.2d 1215, 1223-24, 258 U.S. App. D.C. 236, 244-45 (1987) . See U.S. v. Johnson, 46 F.3d 1166, 310 U.S. App. D.C. 249 (1995) (a person may be convicted of possessing with intent to distribute crack cocaine within 1000 feet of a school even if the distance by the street is over 1000 feet, as long as the straight line distance between the site of the possession with intent to distribute and the school is within 1000 feet; conviction reversed, however, because the pedestrian route measurement of 994 feet only went up to the steps of the house and did not include the distance to the actual point within, where the drug possession occurred); U.S. v. Rogers, 918 F.2d 207, 213, 287 U.S. App. D.C. 1 (1990) ; see also Goodson v. U.S., 760 A.2d 551, 553 (D.C. 2000)) (adopting the "straight line" rule of the D.C. Circuit but finding insufficient evidence where distance from front door of building to location of drugs was not introduced into evidence). See generally Bellamy v. U.S., 810 A.2d 401 (D.C. 2002) (although it was error for the trial court to fail to instruct the jury on the drug-free zone element, it was not plain error; the jury was asked to make that finding on the verdict form; thus, no rational jury could have failed to find that the crimes occurred within a drug-free zone). See also Boddie v. U.S., 865 A.2d 544, 545 (D.C. 2005) (to establish the applicability of the drug-free zone enhancement, "the government need only prove beyond a reasonable doubt that the defendant possessed a controlled substance within the drug-free zone, or within 1,000 feet of a public or private school, with the intent to distribute it somewhere, not necessarily within the drug-free zone."). Note: The Committee believes that the instruction reflects the D.C. drug free zone statute as currently written; however some members of the Committee have concerns that the provisions for "around" public
housing and for "events sponsored by" drug free zone entities may, in some circumstances, be unconstitutionally vague. The Committee has neither researched nor resolved that issue. Lesser included offenses: No. 6.200, Possession of a Controlled Substance. Cross references: No. 3.104, Possession--Defined.
110XTJ ********** Print Completed ********** Time of Request: Sunday, March 04, 2012 Print Number: 1826:337094289 Number of Lines: 16026 Number of Pages: 510 10:22:22 EST
Send To:
Thomas, Michelle USAO - WASHINGTON - DC PO BOX 37060 WASHINGTON, DC 20013-7060

SJury Instructions Part I

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

SJury Instructions Part I

Uploaded by

Copyright:

Available Formats

Page 1

Page 2 1-I Criminal Jury Instructions for DC Instruction 1.100

Page 4 1-I Criminal Jury Instructions for DC Instruction 1.101

Page 6 1-I Criminal Jury Instructions for DC Instruction 1.102

Page 7 1-I Criminal Jury Instructions for DC Instruction 1.102

Page 8 1-I Criminal Jury Instructions for DC Instruction 1.102

Page 9 1-I Criminal Jury Instructions for DC Instruction 1.102

Page 10 1-I Criminal Jury Instructions for DC Instruction 1.102

Page 12 1-I Criminal Jury Instructions for DC Instruction 1.103

Page 14 1-I Criminal Jury Instructions for DC Instruction 1.104

Page 16 1-I Criminal Jury Instructions for DC Instruction 1.105

Page 18 1-I Criminal Jury Instructions for DC Instruction 1.106

Page 21 1-I Criminal Jury Instructions for DC Instruction 1.108

Cross reference: No. 1.102, Preliminary Instruction Before Trial.

Page 24 1-I Criminal Jury Instructions for DC Instruction 1.110

Page 26 1-I Criminal Jury Instructions for DC Instruction 1.111

Page 29 1-I Criminal Jury Instructions for DC Instruction 1.200

Page 31 1-I Criminal Jury Instructions for DC Instruction 1.201

Page 33 1-I Criminal Jury Instructions for DC Instruction 1.202

Page 35 1-I Criminal Jury Instructions for DC Instruction 1.203

Page 37 1-I Criminal Jury Instructions for DC Instruction 1.204

Page 39 1-II Criminal Jury Instructions for DC Instruction 2.100

Page 42 1-II Criminal Jury Instructions for DC Instruction 2.102

Page 45 1-II Criminal Jury Instructions for DC Instruction 2.104

Page 47 1-II Criminal Jury Instructions for DC Instruction 2.105

Page 50 1-II Criminal Jury Instructions for DC Instruction 2.107

Page 52 1-II Criminal Jury Instructions for DC Instruction 2.108

Page 53 1-II Criminal Jury Instructions for DC Instruction 2.108

Page 55 1-II Criminal Jury Instructions for DC Instruction 2.109

Page 60 1-II Criminal Jury Instructions for DC Instruction 2.200

Page 61 1-II Criminal Jury Instructions for DC Instruction 2.200

Page 63 1-II Criminal Jury Instructions for DC Instruction 2.201

Page 65 1-II Criminal Jury Instructions for DC Instruction 2.202

Page 66 1-II Criminal Jury Instructions for DC Instruction 2.202

Page 68 1-II Criminal Jury Instructions for DC Instruction 2.203

Page 70 1-II Criminal Jury Instructions for DC Instruction 2.204

Page 72 1-II Criminal Jury Instructions for DC Instruction 2.205

Page 74 1-II Criminal Jury Instructions for DC Instruction 2.206

Page 76 1-II Criminal Jury Instructions for DC Instruction 2.207

Page 78 1-II Criminal Jury Instructions for DC Instruction 2.208

Page 80 1-II Criminal Jury Instructions for DC Instruction 2.209

Page 82 1-II Criminal Jury Instructions for DC Instruction 2.210

Page 84 1-II Criminal Jury Instructions for DC Instruction 2.211

the basis of a valid privilege. See Instruction 2.212.

Page 87 1-II Criminal Jury Instructions for DC Instruction 2.213

Page 89 1-II Criminal Jury Instructions for DC Instruction 2.214

Page 90 1-II Criminal Jury Instructions for DC Instruction 2.214

Page 92 1-II Criminal Jury Instructions for DC Instruction 2.215

Page 93 1-II Criminal Jury Instructions for DC Instruction 2.215

Page 95 1-II Criminal Jury Instructions for DC Instruction 2.216

Page 96 1-II Criminal Jury Instructions for DC Instruction 2.216

Page 97 1-II Criminal Jury Instructions for DC Instruction 2.216

Page 98 1-II Criminal Jury Instructions for DC Instruction 2.216

Page 100 1-II Criminal Jury Instructions for DC Instruction 2.217

Page 102 1-II Criminal Jury Instructions for DC Instruction 2.218

Page 103 1-II Criminal Jury Instructions for DC Instruction 2.218

Page 104 1-II Criminal Jury Instructions for DC Instruction 2.218

Page 106 1-II Criminal Jury Instructions for DC Instruction 2.219

Page 108 1-II Criminal Jury Instructions for DC Instruction 2.220

Page 109 1-II Criminal Jury Instructions for DC Instruction 2.220

Page 110 1-II Criminal Jury Instructions for DC Instruction 2.220

Page 112 1-II Criminal Jury Instructions for DC Instruction 2.300

Page 113 1-II Criminal Jury Instructions for DC Instruction 2.300