News & Notices

From the committee on Model Criminal Jury Instructions September 2022

September 2022

Michigan Bar Journal

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by Dec. 1, 2022. Comments may be sent in writing to Andrea Crumback, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The committee proposes to renumber, retitle, and amend M Crim JI 20.29 [Limiting Instruction on Expert Testimony (in Child Sexual Conduct Cases)] in order to broaden its scope to include other experts who may testify about victims’ behaviors (such as victims of domestic abuse) and to add information that the jurors need not accept expert testimony, consistent with M Crim JI 5.10. The proposed instruction would renumber the instruction to M Crim JI 5.10a, and title it as Limiting Instruction on Behavioral Expert Testimony. The proposal would also add a Use Note for M Crim JI 5.10 [Expert Witness] directing the court to use M Crim JI 5.10a where an expert testifies regarding the behavioral characteristics of sexually abused children or victims of domestic violence. Deletions are in strike-through, and new language is underlined.

[AMENDED and RENUMBERED]

M Crim JI ~~20.29~~ 5.10a

Limiting Instruction on ~~Expert Testimony (in Child Criminal Sexual Conduct Cases)~~ Behavioral Expert Testimony

(1) ~~You have heard [name expert]’s opinion about the behavior of sexually abused children.~~ [Name expert] testified as an expert in the field of ______________ and gave an opinion in [his/her] area of expertise. Experts are allowed to give opinions in court.

(2) However, you do not have to believe an expert’s opinion. Instead, you should decide whether you believe it and how important you think it is. When deciding whether you believe an expert’s opinion, think carefully about the reasons and facts [he/she] gave for [his/her] opinion and whether those facts are true. You should also think about the expert’s qualifications and whether [his/her] opinion makes sense when you think about the other evidence in the case.

(3) ~~You should consider that evidence~~ If you do believe [name expert]’s opinion, you should consider it only for the limited purpose of deciding whether [name complainant]’s ~~acts~~ behavior and words after the alleged crime were consistent with those ~~of sexually abused children~~ described by the expert. ~~That evidence cannot be used to show~~ You cannot use [name expert]’s opinion as proof that the crime charged here was committed or that the defendant committed it.¹ Nor can it be considered an opinion by [name expert] that [name complainant] is telling the truth.

Use Note

This instruction is intended for use where expert testimony is offered to rebut an inference that a child complainant’s behavior is inconsistent with that of actual victims of child sexual abuse. People v Beckley, 434 Mich 691, 725, 456 NW2d 391 (1990). This instruction is used where expert testimony is offered to explain the behavior of a sexually abused child or of a physically or psychologically abused person that may appear inconsistent with having been abused. See, e.g., People v Beckley, 434 Mich 691, 725, 456 NW2d 391 (1990).

1. The language in this sentence may have to be eliminated or amended where the expert is not testifying for the prosecution describing conduct applicable to a criminal case.

[AMENDED] Use Note for M Crim JI 5.10

Expert Witness

Use Note

Do not use this instruction where the expert testifies regarding the characteristics of sexually abused children and about whether the complainant’s behavior is consistent with those characteristics. Instead, see M Crim JI 20.29, Limiting Instruction on Expert Testimony (Child Criminal Sexual Conduct Cases). See M Crim JI 5.10a Limiting Instruction on Behavioral Expert Testimony where the expert testifies regarding the behavioral characteristics of sexually abused children or victims of domestic violence.

PROPOSED

The committee proposes to amend M Crim JI 7.16 [Duty to Retreat to Avoid Using Force or Deadly Force] to correct an error in requiring fear of imminent death or serious harm for use of non-deadly force per a published Court of Appeals decision, People v Ogilvie (MCOA #354355), citing MCL 780.972(2). Deletions are in strike-through, and new language is underlined.

[AMENDED] M Crim JI 7.16

Duty to Retreat to Avoid Using Force or Deadly Force

(1) A person can use [force/deadly force] in self-defense only where it is necessary to do so. If the defendant could have safely retreated but did not do so, you may consider that fact in deciding whether the defendant honestly and reasonably believed [he/she] needed to use [force/deadly force] in self-defense.*

(2) However,* a person is never required to retreat if attacked in [his/her] own home, nor if the person reasonably believes that an attacker is about to use a deadly weapon, nor if the person is subject to a sudden, fierce, and violent attack.

(3) Further, a person is not required to retreat if he or she

(a) has not or is not engaged in the commission of a crime at the time the [force/deadly force] is used,

(b) has a legal right to be where he or she is at that time, and

[Select from the following according to whether the defendant used deadly force or nondeadly force:]

(c) has an honest and reasonable belief that the use of [force/deadly force] is necessary to prevent imminent [death/great bodily harm/sexual assault] of [himself/herself] or another person.

(c) has an honest and reasonable belief that the use of force is necessary to prevent the imminent unlawful use of force of against [himself/herself] or another person.

Use Note

*Paragraph (1) and “However” should be given only if there is a dispute whether the defendant had a duty to retreat. See People v Richardson, 490 Mich 115, 803 NW2d 302 (2011).

Use this instruction when requested where some evidence of self-defense has been introduced or elicited. Where there is evidence that, at the time that the defendant used force or deadly force, he or she was engaged in the commission of some other crime, the Committee on Model Criminal Jury Instructions believes that circumstances of the case may provide the court with a basis to instruct the jury that the defendant does not lose the right to self-defense if the commission of that other offense was not likely to lead to the other person’s assaultive behavior. See People v Townes, 391 Mich 578, 593; 218 NW2d 136 (1974). The committee expresses no opinion regarding the availability of self-defense where the other offense may lead to assaultive behavior by another.

PROPOSED

The committee proposes an amendment to M Crim JI 17.25 [Stalking] to correct it in accord with statutory language, to provide definitional language in the instruction for “uncontested contact,” and to clarify the element for aggravated stalking. Deletions are in strike-through, and new language is underlined.

[AMENDED] M Crim JI 17.25

Stalking

(1) [The defendant is charged with/You may consider the lesser offense of] stalking. To establish this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant committed two or more willful, separate, and noncontinuous acts of unconsented contact¹ with (name complainant). Unconsented contact means that the defendant initiated or continued contact with (name complainant) without [his/her] consent and includes [following or appearing within sight of (name complainant)/approaching (name complainant) in public or on private property/appearing at (name complainant)’s workplace or home/entering or remaining on property owned, leased, or occupied by (name complainant)/contacting (name complainant) by telephone/sending an electronic communication or mail to (name complainant)/placing an object on or delivering an object to property owned, leased or occupied by (name complainant)].¹

(3) Second, that the contact would cause a reasonable individual to suffer emotional distress.

(4) Third, that the contact caused [name complainant] to suffer emotional distress.²

(5) Fourth, that the contact would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested.³

(6) Fifth, that the contact caused [name complainant] to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

[For aggravated stalking, add the following:]

(7) Sixth, ~~the stalking~~ at least one act of unconsented contact⁴

[was committed in violation of (a court order/a condition of [parole/probation])]

[was committed in violation of a restraining order of which the defendant had actual notice]

[included the defendant making one or more credible threats⁴ against [name complainant], a member of (his/her) family, or someone living in (his/her) household]. A credible threat is a threat to kill or physically injure a person made in a manner or context that causes the person hearing or receiving it to reasonably fear for his or her safety or the safety of another person.⁵

~~[was a second or subsequent stalking offense]. [Where appropriate under the evidence, add the following:]~~

[Where appropriate under the evidence, add the following:]

(8) You have heard evidence that the defendant continued to make repeated unconsented contact with [name complainant] after [he/she] requested the defendant to discontinue that conduct or some different form of unconsented contact and requested the defendant to refrain from any further unconsented contact. If you believe that evidence, you may, but are not required to, infer that the continued course of conduct caused [name complainant] to feel terrorized, frightened, intimidated, threatened, harassed, or molested. Even if you make that inference, remember that the prosecutor still bears the burden of proving all of the elements of the offense beyond a reasonable doubt.

Use Note

1. Unconsented contact is defined at MCL 750.411h(1)(e) and is not limited to the forms of conduct described in this jury instruction. The court may read all of the types of contact mentioned in the statute or may select those that apply according to the charge and the evidence, or the court may describe similar conduct it finds is included under the purview of the statute.

2. The second and third elements constitute harassment as defined at MCL 750.411h(1)(c).

3. The fourth and fifth elements are part of stalking as defined at MCL 750.411h(1)(d).

4. If the basis for aggravated stalking is a prior conviction, do not read this element.

5. Credible threat is defined at MCL 750.411i(1)(b). By this definition, a “credible threat” appears to meet the “true threat” standard of Virginia v Black, 538 US 343, 358 (2003).

PROPOSED

The committee proposes adding an alternative to M Crim JI 20.1 [Criminal Sexual Conduct in the First Degree] where the defendant is a woman who caused sexual penetration with a male under unlawful circumstances. The new language is underlined.

[AMENDED] M Crim JI 20.1

Criminal Sexual Conduct in the First Degree

(1) The defendant is charged with the crime of first-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant engaged in a sexual act that involved

[Choose (a), (b), (c), or (d):]

(a) entry into [(name complainant)/the defendant]’s [genital opening1/anal opening] by [(name complainant)/the defendant]’s [penis/finger/tongue/(name object)]. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.

(b) entry into [(name complainant)/the defendant]’s mouth by [(name complainant)/the defendant]’s penis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.

(c) touching of [(name complainant)/the defendant]’s [genital openings1/genital organs] with [(name complainant)/the defendant]’s mouth or tongue.

(d) entry by [any part of one person’s body/some object] into the genital or anal opening1 of another person’s body. Any entry, no matter how slight, is enough. It is alleged in this case that a sexual act was committed by [state alleged act]. It does not matter whether the sexual act was completed or whether semen was ejaculated.

(3) [Follow this instruction with one or more of the nine alternatives, M Crim JI 20.3 to M Crim JI 20.11, as warranted by the evidence.]

(4) [Where the defendant is charged under MCL 750.520b(2)(b) with the 25-year mandatory minimum for being 17 years of age or older and penetrating a child under 13 years old, instruct according to M Crim JI 20.30b.]

PROPOSED

The committee proposes to add “allowed or caused” language to M Crim JI 20.2 [Criminal Sexual Conduct in the Second Degree] and M Crim JI 20.13 [Criminal Sexual Conduct in the Fourth Degree] to reflect an unpublished Court of Appeals decision, People v Zernec (MCOA #353490), interpreting MCL 750.520e. Deletions are in strike-through, and new language is underlined.

[AMENDED] M Crim JI 20.2

Criminal Sexual Conduct in the Second Degree

(1) The defendant is charged with the crime of second-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally [touched (name complainant)’s/made (name complainant) touch (his/her)/allowed (name complainant) to touch1 (his/her)/caused (name complainant) to touch1 (his/her)] [genital area/groin/inner thigh/buttock/(or) breast] or the clothing covering that area.

(3) Second, that this was done for sexual purposes or could reasonably be construed as having been done for sexual purposes.

(4) [Follow this instruction with one or more of the 13 alternatives, M Crim JI 20.3 to M Crim JI 20.11d, as warranted by the evidence. See the table of contents on p. 20-1 for a list of the alternatives.]

Use Note

1. These alternatives may only be used where “consent” is not a possible defense, e.g., where the victim is under-age or mentally incapable.

[AMENDED] M Crim JI 20.13

Criminal Sexual Conduct in the Fourth Degree

(1) The defendant is charged with the crime of fourth-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(3) Second, that this was done for sexual purposes or could reasonably be construed as having been done for sexual purposes.

Use Note

~~Use this instruction where the facts describe an offensive touching.~~

~~Where an offensive touching involving an employee of the Department of Corrections is alleged, an appropriate instruction conforming to MCL 750.520e(1)(c) should be drafted.~~

1. These alternatives may only be used where “consent” is not a possible defense, e.g., where the victim is under-age or mentally incapable.

PROPOSED

The committee proposes to amend M Crim JI 36.1, 36.3 36.4, 36.4a, and 36.6 [Human Trafficking] to add “coercion” language per a statutory amendment to MCL 750.462a. The new language is underlined. The use notes have not changed so they have not been included.

[AMENDED] M Crim JI 36.1

Obtaining a Person for Forced Labor or Services

(1) The defendant is charged with the crime of obtaining a person for forced labor or services. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant] to perform forced labor or services.

(3) Second, that when the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant], the defendant knew that it was for the purpose of having [name complainant] perform forced labor or services, whether or not such labor or service was actually provided.

(4) “Forced labor or services” are labor or services obtained or maintained by force, fraud, or coercion.

[Provide any or all of the following definitions, according to the evidence:]

(a) Force includes physical violence, restraint, or confinement, or threats of physical violence, restraint, or confinement.

(b) Fraud includes false or deceptive offers of employment or marriage.

(i) threats of harm or restraint to any person.

(ii) using a [scheme/plan/pattern] intended to cause someone to think that [psychological harm/physical harm/harm to the person’s reputation] would result from failing to perform an act.

(iii) abusing or threatening to abuse the legal system by threatening to have the person [arrested/deported], regardless of whether the person could be [arrested/deported].

(iv) [destroying/concealing/removing/confiscating] a [passport/immigration document/government identification document] from any person, even if the document was fraudulently obtained. (v) facilitating or controlling access to [identify controlled substance(s) per MCL 333.7104] without a legitimate medical purpose.

(v) facilitating or controlling access to [identify controlled substance(s) per MCL 333.7104] without a legitimate medical purpose.

These are examples of [force/fraud/coercion] and not an exhaustive list.

[This crime is a 10-year offense that may be increased by aggravating factors. If the prosecution has charged one of those factors, the jury must be instructed under M Crim JI 36.5.]

[AMENDED] M Crim JI 36.3

Knowingly Subjecting a Person to Forced Labor or Debt Bondage

(1) The defendant is charged with the crime of knowingly subjecting a person to [forced labor or services/debt bondage]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant purposefully recruited, enticed, harbored, transported, provided, or obtained [name complainant] by any means.

(3) Second, that when the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant], the defendant knew that [name complainant] would be subjected to [perform forced labor or services/debt bondage].

[Provide appropriate definitions:]

(4) “Forced labor or services” are labor or services obtained or maintained by force, fraud, or coercion.

[Provide any or all of the following definitions, according to the evidence:]

(a) Force includes physical violence, restraint, or confinement, or threats of physical violence, restraint, or confinement.

(b) Fraud includes false or deceptive offers of employment or marriage.

(i) threats of harm or restraint to any person.

(ii) using a [scheme/plan/pattern] intended to cause someone to think that [psychological harm/physical harm/harm to the person’s reputation] would result from failing to perform an act. (iii) abusing or threatening to abuse the legal system by threatening to have the person [arrested/deported], regardless of whether the person could be [arrested/deported].

(iv) [destroying/concealing/removing/confiscating] a [passport/immigration document/government identification document] from any person, even if the document was fraudulently obtained.

(v) facilitating or controlling access to [identify controlled substance(s) per MCL 333.7104] without a legitimate medical purpose.

These are examples of [force/fraud/coercion] and not an exhaustive list.

(5) “Debt bondage” includes, but is not limited to, a promise by [name complainant or person who had control over complainant] that [name complainant] would perform services to pay back a debt where the value of the services, or the nature of the services and the time that they are to be performed, is not spelled out or defined, or the value of the services is not applied to reduction of the debt. This is not an exhaustive list of the types of debt bondage.

[This crime is a 10-year offense that may be increased by aggravating factors. If the prosecution has charged one of those factors, the jury must be instructed under M Crim JI 36.5.]

[AMENDED] M Crim JI 36.4

Participating in a Forced Labor, Debt Bondage, or Commercial Sex Enterprise for Financial Gain

(1) The defendant is charged with the crime of participating in an enterprise involving forced labor, debt bondage, or commercial sex for financial gain. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant participated in an enterprise that engaged in forced labor or services, debt bondage, or commercial sexual activity.

(3) Second, that the defendant knew that the enterprise was engaged in forced labor or services, debt bondage, or commercial sexual activity.

(4) Third, that the defendant benefited financially or received anything of value from [his/her] participation in the enterprise.

(5) I will now define some of the legal terminology that was used in this instruction.

[Provide appropriate definitions:]

(a) An enterprise is an organization for conducting business and can be an individual person, a sole proprietorship, a partnership, a corporation, a limited liability company, a trust, a union, an association, a governmental unit, any other legal entity, or any legal or illegal association of persons.

(b) “Forced labor or services” are labor or services obtained or maintained by force, fraud, or coercion.

[Provide any or all of the following definitions, according to the evidence:]

(i) Force includes physical violence, restraint, or confinement, or threats of physical violence, restraint, or confinement.

(ii) Fraud includes false or deceptive offers of employment or marriage.

(iii) Coercion includes [select any that apply]:

(A) threats of harm or restraint to any person.

(B) using a [scheme/plan/pattern] intended to cause someone to think that [psychological harm/physical harm/harm to the person’s reputation] would result from failing to perform an act.

(C) abusing or threatening to abuse the legal system by threatening to have the person [arrested/deported], regardless of whether the person could be [arrested/deported].

(D) [destroying/concealing/removing/confiscating] a [passport/immigration document/government identification document] from any person, even if the document was fraudulently obtained.

(E) facilitating or controlling access to [identify controlled substance(s) per MCL 333.7104] without a legitimate medical purpose.

These are examples of [force/fraud/coercion] and not an exhaustive list.

(c) “Debt bondage” includes, but is not limited to, a promise by [name complainant or person who had control over complainant] that [name complainant] would perform services to pay back a debt where the value of the services, or the nature of the services and the time that they are to be performed, is not spelled out or defined, or the value of the services is not applied to reduction of the debt. This is not an exhaustive list of the types of debt bondage.

(d) “Commercial sexual activity” means performing acts of sexual penetration or contact, child sexually abusive activity, or a sexually explicit performance.

[This crime is a 10-year offense that may be increased by aggravating factors. If the prosecution has charged one of those factors, the jury must be instructed under M Crim JI 36.5.]

[AMENDED] M Crim JI 36.4a

Participating in a Forced Labor or Commercial Sex Enterprise for Financial Gain or for Anything of Value with a Minor

(1) The defendant is charged with the crime of participating in an enterprise involving forced labor or services or commercial sexual activity with a minor for financial gain or for anything of value. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant participated in an enterprise that engaged in forced labor or services or commercial sexual activity involving a person or persons less than 18 years old. It does not matter whether defendant knew the age of the person or persons.

(3) Second, that the defendant knew that the enterprise was engaged in forced labor or services or commercial sexual activity with this person or persons.

(4) Third, that the defendant benefited financially or received anything of value from [his/her] participation in the enterprise.

(5) I will now define some of the legal terminology that was used in this instruction.

[Provide appropriate definitions:]

(b) “Forced labor or services” are labor or services obtained or maintained by force, fraud, or coercion.

[Provide any or all of the following definitions, according to the evidence:]

(i) Force includes physical violence, restraint, or confinement, or threats of physical violence, restraint, or confinement.

(ii) Fraud includes false or deceptive offers of employment or marriage.

(iii) Coercion includes [select any that apply]:

(A) threats of harm or restraint to any person. (B) using a [scheme/plan/pattern] intended to cause someone to think that [psychological harm/physical harm/harm to the person’s reputation] would result from failing to perform an act.

(C) abusing or threatening to abuse the legal system by threatening to have the person [arrested/deported], regardless of whether the person could be [arrested/deported].

(D) [destroying/concealing/removing/confiscating] a [passport/immigration document/government identification document] from any person, even if the document was fraudulently obtained.

(E) facilitating or controlling access to [identify controlled substance(s) per MCL 333.7104] without a legitimate medical purpose.

These are examples of [force/fraud/coercion] and not an exhaustive list.

(c) “Commercial sexual activity” means performing acts of sexual penetration or contact, child sexually abusive activity, or a sexually explicit performance.

[AMENDED] M Crim JI 36.6

Using Minors for Commercial Sexual Activity or for Forced Labor or Services

(1) The defendant is charged with the crime of engaging a minor for [commercial sexual activity/forced labor or services]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

[Select (2) according to the charged conduct:]

(2) First, that the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant] for commercial sexual activity. Commercial sexual activity means performing acts of sexual penetration or contact, child sexually abusive activity, or a sexually explicit performance.

(2) First, that the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant] to perform forced labor or services. “Forced labor or services” are labor or services obtained or maintained by force, fraud, or coercion.

[Provide any or all of the following definitions, as applicable:]

(a) Force includes physical violence, restraint, or confinement, or threats of physical violence, restraint, or confinement.

(b) Fraud includes false or deceptive offers of employment or marriage.

(i) threats of harm or restraint to any person.

(ii) using a [scheme/plan/pattern] intended to cause someone to think that [psychological harm/physical harm/harm to the person’s reputation] would result from failing to perform an act.

(iii) abusing or threatening to abuse the legal system by threatening to have the person [arrested/deported], regardless of whether the person could be [arrested/deported].

(iv) [destroying/concealing/removing/confiscating] a [passport/immigration document/government identification document] from any person, even if the document was fraudulently obtained.

(v) facilitating or controlling access to [identify controlled substance(s) per MCL 333.7104] without a legitimate medical purpose.

These are examples of [force/fraud/coercion], and not an exclusive list.

(3) Second, that when the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant] [for commercial sexual purposes/to perform forced labor or services], [name complainant] was less than 18 years old, regardless of whether the defendant knew [he/she] was less than 18 years old.

(4) Third, that when the defendant recruited, enticed, harbored, transported, provided, or obtained [name complainant], the defendant intended that [name complainant] would perform [commercial sexual activity/forced labor or services], whether or not [commercial sexual activity/forced labor or service] was actually provided.