[AMENDED] M Crim JI 4.11a
Evidence of Other Acts of Domestic Violence or Sexual Assault
(1) The prosecution has introduced evidence that the defendant may have committed an act of [of claimed acts of domestic violence*/sexual assault/(identify general nature of crime found in MCL 28.722(s),(u) or (w) by the defendant for which [he/she] is not on trial.
(2) Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed the act.
(3) If you find that the defendant did commit that act, you may consider it in deciding if the defendant committed the [offense/offenses] for which [he/she] is now on trial.
(4) You must not convict the defendant here in this case solely because you think [he/she] is guilty of other bad conduct. The evidence must convince you beyond a reasonable doubt that the defendant committed the alleged crime, or you must find [him/her] not guilty.
Use Note
* Domestic violence for purposes of this instruction is defined in MCL 768.27b(5 6) (a) and (b). The meaning of “sexual assault” are those offenses under the Sex Offender Registration Act found at MCL 28.722(s), (u), or (w).
[AMENDED and COMBINED] M Crim JI 7.16
Duty to Retreat to Avoid Conditions for Using Force or Deadly Force
M Crim JI 7.19
Nondeadly Aggressor Assaulted with Deadly Force
(1) [Select (A) or (B) depending on the evidence and circumstances.]
(A) 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.1
(B) A defendant who [assaults someone else with fists or a weapon that is not deadly/insults someone with words/trespasses on someone else’s property/tries to take someone else’s property in a nonviolent way] does not lose all right to self-defense. If someone else assaults [him/her] with deadly force, the defendant may act in self-defense, but only if [he/she] retreats retreated if it is where it would have been safe to do so.1
(2) However,1 a person is never required to retreat under some circumstances: [He/She] does not need to retreat if [attacked in (his/her) own home/(he/she) reasonably believes that an attacker is about to use a deadly weapon/subjected to a sudden, fierce, and violent attack].2
(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.
or
(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
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.
1. 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). 2. The court may read whatever alternatives may apply or adapt them to such other circumstances as may apply to the evidence presented at trial.
[NEW] M Crim JI 7.26
Parental Kidnapping — Defense of Protecting Child; Burden of Proof
(1) The defendant says that [he/she] is not guilty of parental kidnapping because [he/she] was acting to protect [name child] from an immediate and actual threat of physical or mental harm, abuse, or neglect. A person is not guilty of parental kidnapping when [he/she] proves this defense.
(2) Before considering the defense of protecting the child, you must be convinced beyond a reasonable doubt that the prosecutor proved the elements of parental kidnapping. If you are not, your verdict should simply be not guilty of that offense. If you are convinced that the defendant committed the offense, you should consider the defendant’s claim that [he/she] was protecting the child from an immediate and actual threat of physical or mental harm, abuse, or neglect.
(3) In order to establish that [he/she] was acting to protect the child, the defendant must prove three elements by a preponderance of the evidence. A preponderance of the evidence means that [he/she] must prove that it is more likely than not that each of the elements is true.
(4) First, the defendant must prove that [name child] was in actual danger of physical or mental harm, abuse, or neglect.
(5) Second, the defendant must prove that the danger of physical or mental harm, abuse, or neglect to [name child] was immediate. That is, if the defendant failed to act [name child] would have been physically or mentally harmed or abused or suffered abuse very soon.
(6) Third, the defendant must prove that [his/her] actions were reasonably intended to prevent the danger of physical or mental harm, abuse, or neglect to [name child].
(7) You should consider these elements separately. If you find that the defendant has proved all three of these elements by a preponderance of the evidence, then you must find [him/her] not guilty of parental kidnapping. If the defendant has failed to prove any of these elements, the defense fails.
[NEW] M Crim JI 37.1b
Offering Commission, Gift, or Gratuity to Agent or Employee
(1) The defendant is charged with the crime of offering or promising a commission, gift, or gratuity to an agent or employee to influence how the agent or employee performs the employer’s business. To prove this charge the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [identify agent or employee] was the agent or employee of [name principal or employer].
(3) Second, that the defendant
[select a or b]
(a) [gave/offered or promised] a [commission/gift/gratuity] to [identify agent or employee].
(b) offered to or promised that [he/she] would perform some act that would benefit [identify agent or employee] or another person.
(4) Third, that when the defendant [(gave/offered or promised) a (commission/gift/gratuity) to (identify agent or employee)/offered to or promised that (he/she) would perform some act or offer to perform some act that would benefit (identify proposed donor) or another person], the defendant did so with the intent to influence [identify agent or employee]’s actions regarding [name principal or employer]’s business.
[NEW] M Crim JI 37.2b
Accepting Commission, Gift, or Gratuity by Agent or Employee
(1) The defendant is charged with the crime of requesting or accepting a commission, gift, or gratuity as an agent or employee to perform his employer’s business according to an agreement with some other person. To prove this charge the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant was the agent or employee of [name principal or employer].
(2) Second, that the defendant
[select a, b, or c]
(a) [requested/accepted] a [commission/gift/gratuity] from [identify proposed donor] for [himself/herself] or another person.
(b) [requested/accepted] a promise of a [commission/gift/gratuity] from [identify proposed donor] for [himself/herself] or another person.
(c) [requested/accepted] that [identify proposed donor] would perform some act or offer to perform some act that would benefit [himself/herself] or another person.
(4) Third, that when the defendant [requested/accepted] [(the commission/the gift/the gratuity) from (identify proposed donor)/the promise of a (commission/gift/gratuity) from (identify proposed donor)/that (identify proposed donor) would perform some act or offer to perform some act that would benefit defendant or another person], the defendant did so agreeing or understanding with [identify proposed donor] that [he/she] would [describe conduct agreed upon between defendant and donor] regarding [name principal or employer]’s business.
[AMENDED] M Crim JI 37.3b
Bribing Witnesses — Crime/Threat to Kill
(1) The defendant is charged with the crime of witness bribery. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.1
(3) Second, that the defendant [gave/offered to give/promised to give] anything of value to [name complainant].2
(4) Third, that when the defendant [gave/offered to give/promised to give] something of value to [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
(5) Fourth, that the defendant’s actions involved [committing or attempting to commit a crime/a threat to kill or injure a person/a threat to cause property damage].
[Read the following bracketed material where the charge involves a threat.]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
[AMENDED] M Crim JI 37.4
Intimidating Witnesses
(1) The defendant is charged with the crime of witness intimidation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.1
(3) Second, that the defendant [threatened/tried to intimidate] [name complainant].
[Read the following bracketed material where the charge is that the defendant threatened the complainant.]
[A threat is a written or spoken statement that shows an intent to injure or harm another person, or that person’s property or family in some way. No particular words are necessary, and it can be said or written in vague terms that do not state exactly what injury will occur. But it must be definite enough so that a person of ordinary intelligence would understand it as a threat. A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [threatened/tried to intimidate] [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
[AMENDED] M Crim JI 37.4a
Intimidating Witnesses — Criminal Case, Penalty More Than Ten Years
(1) The defendant is charged with the crime of witness intimidation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.1
(3) Second, that the defendant [threatened/tried to intimidate] [name complainant].
[Read the following bracketed material where the charge is that the defendant threatened the complainant.]
[A threat is a written or spoken statement that shows an intent to injure or harm another person, or that person’s property or family in some way. No particular words are necessary, and it can be said or written in vague terms that do not state exactly what injury will occur. But it must be definite enough so that a person of ordinary intelligence would understand it as a threat. A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [threatened/tried to intimidate] [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
(5) Fourth, that the official proceeding was a criminal case charging a crime with a maximum punishment of more than 10 years or life in prison.
[AMENDED] M Crim JI 37.4b
Intimidating Witnesses — Crime/Threat to Kill
(1) The defendant is charged with the crime of witness intimidation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.1
(3) Second, that the defendant [threatened/tried to intimidate] [name complainant].
[Read the following bracketed material where the charge is that the defendant threatened the complainant.]
[A threat is a written or spoken statement that shows an intent to injure or harm another person, or that person’s property or family in some way. No particular words are necessary, and it can be said or written in vague terms that do not state exactly what injury will occur. But it must be definite enough so that a person of ordinary intelligence would understand it as a threat A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [threatened/tried to intimidate] [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/ influence (name complainant)’s testimony at the proceeding/ encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
(5) Fourth, that the defendant’s actions involved [committing or attempting to commit a crime/a threat to kill or injure a person/a threat to cause property damage.]
[AMENDED] M Crim JI 37.5b
Interfering with Witnesses — Crime/Threat to Kill
(1) The defendant is charged with the crime of witness interference. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.1
(3) Second, that the defendant impeded, interfered with, prevented, or obstructed [name complainant] from attending, testifying, or providing information, or tried to impede, interfere with, prevent, or obstruct [name complainant]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness at the proceeding.
(4) Third, that the defendant intended to impede, interfere with, prevent, or obstruct [name complainant] from attending, testifying at or providing information at the official proceeding.
(5) Fourth, that the defendant’s actions involved [committing or attempting to commit a crime/a threat to kill or injure a person/a threat to cause property damage.]
[Read the following bracketed material where the charge is that the defendant threatened the complainant.]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
[AMENDED] M Crim JI 37.6
Retaliating Against Witnesses
(1) The defendant is charged with the crime of witness retaliation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was a witness at an official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official that is authorized to hear evidence under oath.1
(3) Second, that the defendant retaliated, attempted to retaliate, or threatened to retaliate against [name complainant] for having been a witness. Retaliate means to commit or attempt to commit a crime against the witness, or to threaten to kill or injure any person, or to threaten to cause property damage.
[Read the following bracketed material where the charge is that the defendant threatened the complainant.]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
[AMENDED] M Crim JI 37.8b
Retaliating for Crime Report
(1) The defendant is charged with retaliating or attempting to retaliate against a person for reporting criminal conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] reported or attempted to report that [defendant/identify other person] [describe conduct to be reported].1
(3) Second, that the defendant [committed or attempted to commit the crime of (identify other crime that the defendant is alleged to have committed) as I have previously described to you2 against (name complainant)/threatened to kill or injure any person/threatened to cause property damage.]
[Read the following bracketed material where the charge is that the defendant threatened the complainant.]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [committed or attempted to commit the crime of (identify other crime that the defendant committed) against (name complainant)/threatened to kill or injure any person/threatened to cause property damage], [he/she] did so as retaliation for [name complainant]’s having reported or attempting to report the crime of [identify crime].
[AMENDED] M Crim JI 37.9a
Influencing Statements to Investigators by Threat or Intimidation
(1) [The defendant is charged with/You may also consider the less serious offense of] threatening or intimidating a person in order to influence that person’s statement or presentation of evidence to a police investigator [not involving the commission or attempted commission of another crime/a threat to kill or injure any person/a threat to cause property damage.] To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant made a threat or said or did something to intimidate [name witness.]
[Read the following bracketed material where the charge is that the defendant threatened the witness.]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat, and not, for example, idle talk, or a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(3) Second, that when the defendant made the threat or used intimidating words or conduct, [he/she] was attempting to influence what [name witness] would tell [a police investigator/officer (name complainant)] or whether [name witness] would give some evidence to [a police investigator/officer (name complainant)] who [may be/was] conducting a lawful investigation of the crime of [identify crime].
[(4) Third, that when threatening or intimidating [name witness], the defendant [committed or attempted to commit the crime of (identify other crime that the defendant committed) as I have previously described to you/threatened to kill or injure any person/threatened to cause property damage.]
[NEW] M Crim JI 40.5
Public Intoxication
(1) The defendant is charged with the crime of being intoxicated in public and causing a disturbance or endangering persons or property. To prove this charge the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant was in a place open to the public, [state location].
(3) Second, that the defendant was intoxicated. A person is intoxicated when he or she is mentally or physically impaired as a result of consuming an intoxicating substance, such as an alcoholic beverage.
(4) Third, that the defendant [directly endangered the safety of another person or of property/disrupted the peace and quiet of other persons present/interfered with the ability of other persons to perform actions or duties permitted by law].1
Use Note
See People v. Mash, 45 Mich App 459; 206 NW2d 767 (1973), and People v. Weinberg, 6 Mich App 345; 149 NW2d 248 (1967), for public disturbance language.
1. The court may read any of the alternatives that apply to the prosecutor’s theory of the case that are supported by the evidence.
[NEW] M Crim JI 41.2
Using a Device to Eavesdrop on a Private Conversation
(1) The defendant is charged with the crime of using a device to eavesdrop on a private conversation. To prove this charge the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [identify complainants] were having a private conversation where the defendant was not a participant.
(3) Second, that the defendant [used a device/knowingly aided another person in using a device/knowingly employed or procured another person to use a device] to overhear, record, amplify, or transmit the private conversation between [identify complainants].
(4) Third, that defendant did not have the consent of all persons who were part of the private conversation to overhear, record, amplify, or transmit the conversation.