The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by June 1, 2023. 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 amending jury instruction M Crim JI 4.11a, the “Other Acts” jury instruction, to add acts of sexual assault per the language of MCL 768.27b, which includes acts of sexual assault with acts of domestic assault as other acts that a jury can consider. Additionally, a few linguistic changes were made to improve readability and understandability of the instruction. The instruction’s use note was also amended. Deletions are in strikethrough, and new language is underlined.
[AMENDED] M Crim JI 4.11a
Evidence of Other Acts of Domestic Violence or Sexual Assault
(1) The prosecutor has introduced evidence of claimed acts of domestic violence* by the defendant for which [he/she] is not on trial. You have heard evidence that the defendant [describe the alleged conduct by the defendant]. [He/she] is not on trial for [that/those] [act/acts].
(2) Before you may consider such alleged acts as this evidence against the defendant, you must first find that the defendant actually committed such the [act/acts].
(3) If you find that the defendant did commit those the [act/acts], you may consider [it/them] in deciding if whether 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 offense for which [he/she] is now on trial, 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). “Sexual assault” crimes are those offenses under the Sex Offenders Registration Act found at MCL 28.722(r), (t), and (v).
The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by June 1, 2023. 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 a jury instruction, M Crim JI 7.26, for the defense to parental kidnapping (M Crim JI 19.6) found in MCL 750.350a(7) — protecting the child from an immediate and actual threat of physical or mental harm. The instruction is entirely new.
[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 defendant committed the crime 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) 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 following elements is true.
(4) First, the defendant must prove that [name child] was in actual danger of physical or mental harm, abuse or neglect.1
(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 would have suffered abuse or neglect 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 preponderanceof the evidence, you must find [him/her] not guilty of parental kidnapping. If the defendant has failed to prove any of these elements, the defense fails.
Use Note
1. The terms “physical harm,” “mental harm,” “abuse,” and “neglect” are not defined in MCL 750.350a. The Committee on Model Criminal Jury Instructions does not recommend importing definitions from other statutory provisions if the jury questions the meaning of the terms but suggests the use of dictionary meanings.
The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by June 1, 2023. 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 a jury instruction, M Crim JI 13.19b, for the offense of using a 9-1-1 service for a prohibited purpose, contrary to MCL 484.1605. The instruction is entirely new.
[NEW] M Crim JI 13.19b
Prohibited Use of Emergency 9-1-1 Service
(1) The defendant is charged with the crime of prohibited use of emergency 9-1-1 service. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant [used/attempted to use] an emergency 9-1-1 service.
(3) Second, that the defendant [used/attempted to use] the emergency 9-1-1 service [for a reason other than to call for an emergency response service1/more than one time to report a crime or seek nonemergency assistance and was told on the first call to call a different number].
(4) Third, that when the defendant [used/attempted to use] the emergency 9-1-1 service [for a reason other than to call for an emergency response service/more than one time to report a crime or seek nonemergency assistance and was told on the first call to call a different number], [he/she] knew that [he/she] was using the service for a reason other than to call for an emergency response service.
Use Note
1. An emergency response service is defined by MCL 484.1102(m) and means a public or private agency that responds to events or situations that are dangerous or that are considered by a member of the public to threaten the public safety. An emergency response service includes a police or fire department, an ambulance service, or any other public or private entity trained and able to alleviate a dangerous or threatening situation.
The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by June 1, 2023. 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 a jury instruction, M Crim JI 33.2, for the offense of cruel and inhumane treatment of an animal, contrary to MCL 750.50. The instruction is entirely new.
[NEW] M Crim JI 33.2
Cruel and Inhumane Treatment of an Animal
(1) The defendant is charged with the crime of cruel and inhumane treatment of an animal. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant [owned, possessed, or had custody of (a/an) (identify vertebrate)/was (an animal breeder/a pet shop operator)1 with (a/an) (identify vertebrate) under (his/her) care].
(3) Second, that the defendant
[Select from the following according to the charges and evidence:]
(a) failed to provide the [identify vertebrate(s)] with adequate care. “Adequate care” means providing enough water, food, and exercise and providing sufficient shelter, sanitary conditions, and veterinary care to keep an animal in a state of good health.2
(b) drove, worked, or beat [identify vertebrate(s)] cruelly, or caused [identify vertebrate(s)] to be driven, worked or beaten.3
(c) carried [identify vertebrate(s)] in a vehicle or caused the [animal/animals] to be carried in a vehicle with [its/their] feet tied together.
(d) carried [identify vertebrate(s)] in or on a vehicle or caused the [animal/animals] to be carried in or on a vehicle without a secure space or cage for the [(identify livestock vertebrate[s])4 to stand/identify vertebrate(s) to stand, turnaround, and lie down].
(e) abandoned the [identify vertebrate(s)] or caused the [animal/ animals] to be abandoned without making provision for adequate care of the [animal/animals].5 “Adequate care” means providing enough water, food, and exercise and providing sufficient shelter, sanitary conditions, and veterinary care to keep an animal in a state of good health.2
(f) was negligent in allowing [identify vertebrate(s)], including aged, diseased, maimed, or disabled animals, to suffer unnecessary neglect, torture, or pain. “Neglect” means failing to sufficiently and properly care for an animal to a degree that the animal’s health is jeopardized.6
(g) tethered the dog with a rope, chain, or similar device that was less than three times the length of the dog from nose to the base of its tail.7
(4) Third,8
[Select from the following aggravating factors according to the charges and evidence:]
(a) [the offense involved two or three animals/an/the) animal died as a result of the offense].
(b) the offense involved four to nine animals.
(c) the offense involved ten to twenty-four animals.
(d) the offense involved twenty-five or more animals.
Use Note
1. Breeder is defined at MCL 750.50(1)(e), referencing MCL 287.331. Pet shop is defined at MCL 750.50(1)(j), also referencing MCL 287.331.
2. Adequate care is defined in MCL 750.50(1)(a). “Shelter” is further defined in MCL 750.50(1)(l), and “water” is defined in MCL 750.50(1)(o).
3. Cruelly is not defined in MCL 750.50. The Committee on Model Criminal Jury Instructions does not recommend importing definitions from other statutory provisions but notes that the child abuse statute, MCL 750.136b(1)(b), defines “cruel” as “... brutal, inhumane, sadistic, or that which torments.”
4. In MCL 750.50(1)(g), the definition of “livestock” references MCL 287.703.
5. There are exceptions to the abandonment provision found at MCL 750.50(2)(e) involving premises abandoned to protect human life or prevent human injury or lost animals. It appears that the defendant would have to offer evidence to interpose such defenses.
6. Neglect is defined in MCL 750.50(1)(h).
7. Tethering is defined in MCL 750.50(1)(n).
8. Provide this instruction only when the prosecution seeks sentence enhancement based on these factors.
The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by June 1, 2023. 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 jury instructions, M Crim JI 33.4, 33. 4a and 33.4b for the offenses involving killing or torturing animals, contrary to MCL 750.50b(2) to (7), and M Crim JI 33.4c for a “just cause” defense to such charges. These instructions are entirely new.
[NEW] M Crim JI 33.4
First-Degree Killing or Torturing an Animal
(1) The defendant is charged with the crime of first-degree killing or torturing an animal. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant intentionally
[Choose any supported by the charges and the evidence:]
(a) [killed/tortured/mutilated, maimed, or disfigured] [a/an] [identify vertebrate].
[or]
(b) poisoned [a/an] [identify vertebrate] or caused the animal to be exposed to a poisonous substance intending that the substance be taken or swallowed.
(3) Second, that the [identify vertebrate] that the defendant [killed/ tortured/mutilated, maimed, or disfigured/poisoned or caused to be exposed to a poisonous substance] was a companion animal. A “companion animal” is a vertebrate commonly considered to be a pet or considered by [identify complainant] to be a pet.1
(4) Third, that the defendant intended to cause [identify com-plainant] mental anguish or distress or intended to exert control over [identify complainant]2
[Select the appropriate option according to the evidence:]
(i) by [(killing/torturing/mutilating, maiming, or disfiguring) the animal/poisoning the animal or causing the animal to be exposed to a poisonous substance].
[or]
(ii) by threatening to [(kill/torture/mutilate, maim, or disfigure) the animal/poison the animal or cause the animal to be exposed to a poisonous substance].
[Read the following bracketed material only 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, 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.]
Use Note
1. Companion animal is defined in MCL 750.50b(1)(b).
2. This is a specific intent crime.
[NEW] M Crim JI 33.4a
Second-Degree Killing or Torturing an Animal
(1) [The defendant is charged with the crime/You may also consider the lesser offense] of second-degree killing or torturing an animal. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant
[Choose any supported by the charges and the evidence:]
(a) intentionally [killed/tortured/mutilated, maimed, or disfigured] [a/an] [identify vertebrate].
[or]
(b) intentionally poisoned [a/an] [identify vertebrate] or caused the animal to be exposed to a poisonous substance intending that the substance be taken or swallowed.
[or]
(c) intended to cause [identify complainant] mental anguish or distress or intended to exert control over [identify complainant]1
[Select the appropriate option according to the evidence:]
(i) by [(killing/torturing/mutilating, maiming, or disfiguring) the animal/poisoning the animal or causing the animal to be exposed to a poisonous substance].
[or]
(ii) by threatening to [(kill/torture/mutilate, maim, or disfigure) the animal/poison the animal or cause the animal to be exposed to a poisonous substance].
[Read the following bracketed material only 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, 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.]
[I have just described the (two/three) alternatives that the prosecutor may use to prove this element. To find that this element has been proven, you must all agree that the same alternative or alternatives has or have been proved beyond a reasonable doubt.]2
(3) Second, that the [identify vertebrate] that the defendant [killed/tortured/mutilated, maimed, or disfigured/poisoned or caused to be exposed to a poisonous substance] was a companion animal. A “companion animal” is a vertebrate commonly considered to be a pet or considered by [identify complainant] to be a pet.3
Use Note
1. This is a specific intent crime.
2. Read this paragraph only where two or three alternatives for this element were read to the jury.
3. Companion animal is defined in MCL 750.50b(1)(b).
[NEW] M Crim JI 33.4b
Third-Degree Killing or Torturing an Animal
(1) [The defendant is charged with the crime/You may also consider the lesser offense] of third-degree killing or torturing an animal. To prove this charge, the prosecutor must prove the following element beyond a reasonable doubt:
(2) That the defendant
[Choose any supported by the charges and the evidence:]
(a) intentionally [killed/tortured/mutilated, maimed, or disfigured] [a/an] [identify vertebrate].
[or]
(b) intentionally poisoned [a/an] [identify vertebrate] or caused the animal to be exposed to a poisonous substance intending that the substance be taken or swallowed.
[or]
(c) committed a reckless act1 that the defendant knew or had reason to know would cause [an animal/(a/an) (identify vertebrate)] to be [killed/tortured/mutilated, maimed, or disfigured].
[or]
(d) intended to cause [identify complainant] mental anguish or distress or intended to exert control over [identify complainant]2
[Select the appropriate option according to the evidence:]
(i) by [(killing/torturing/mutilating, maiming, or disfiguring) the animal/poisoning the animal or causing the animal to be exposed to a poisonous substance].
[or]
(ii) by threatening to [(kill/torture/mutilate, maim, or disfigure) the animal/poison the animal or cause the animal to be exposed to a poisonous substance].
[Read the following bracketed material only 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, 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.]
[I have just described the (two/three/four) alternatives that the prosecutor may use to prove this element. To find that this element has been proven, you must all agree that the same alternative or alternatives has or have been proved beyond a reasonable doubt.]3
Use Note
1. Reckless act is not defined in MCL 750.50b. In the context of driving offenses, it is defined as willful and wanton disregard for the safety of persons or property or knowingly disregarding the possible risks to the safety of people or property.
2. This is a specific intent crime.
3. Read this paragraph only where two, three, or four alternatives for this element were read to the jury.
[NEW] M Crim JI 33.4c
Just Cause as a Defense to Killing or Torturing an Animal
(1) The defendant claims that [he/she] had just cause to commit the acts alleged by the prosecutor. Where a person has just cause for killing or harming an animal, [he/she] is not guilty of the crime of killing or torturing an animal.
(2) You should consider all of the evidence and the following rules when deciding whether there was just cause for the defendant’s actions.
(3) The defendant must have honestly and reasonably believed that [his/her] conduct was necessary or just, considering the circumstances as they appeared to the defendant at that time.
(4) It is for you to decide whether those circumstances called for the defendant’s conduct and whether [his/her] conduct was necessary to address those circumstances.
(5) The defendant does not need to prove that [he/she] had just cause to kill or harm the animal. Instead, the prosecutor must prove beyond a reasonable doubt that the defendant did not have just cause to kill or harm the animal.
Use Note
This instruction should only be read where evidence of just cause has been introduced. The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by Sept. 1, 2023. 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 amending the reasonable doubt instructions found in M Crim JI 1.9(3) and 3.2(3) to add the sentence, “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.” The amendment was prompted by research showing that the clear and convincing standard was considered by the general public to be higher than the beyond a reasonable doubt standard. The Model Jury Instruction Committee proposes the additional sentence to impress upon the jurors the level of certainty required for a criminal conviction. A number of committee members preferred not to make any change to the instruction but agreed to publication of the proposal for public consideration. Comments suggesting other wording for the reasonable doubt instructions are welcome, but the committee is only considering whether to adopt the change proposed or wording substantially similar to the proposal. The added language is underlined. There is an extended comment period for this proposal.
[AMENDED] M Crim JI 1.9(3) and 3.2(3)
Reasonable Doubt
(3) Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that: a doubt that is reasonable after a careful and considered examination of the facts and circumstances of this case.