News & Notices

From the Committee on Model Jury Instructions January 2024

January 2024

Michigan Bar Journal

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by March 1, 2024. Comments may be sent in writing to Sam Smith, 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 the following new model criminal jury instruction, M Crim JI 5.16, directing the jury to consider testimony provided through videoconferencing technology. MCR 6.006(A)(2), (B)(4), and (C)(4) authorize the use of videoconferencing technology to take trial testimony in criminal proceedings “in the discretion of the court after all parties have had notice and an opportunity to be heard on the use of videoconferencing technology.” The language in the new instruction is based M Crim JI 2.13 (Notifying Court of Inability to Hear or See Witness or Evidence), M Crim JI 4.10 (Preliminary Examination Transcript), and M Civ JI 4.11 (Consideration of Deposition Evidence). This instruction is entirely new.

[NEW] M Crim JI 5.16

Testimony Provided Through Videoconferencing Technology

The next witness, [identify witness], will testify by videoconferencing technology. You are to judge the witness’s testimony by the same standards as any other witness, and you should give the witness’s testimony the same consideration you would have given it had the witness testified in person. If you cannot hear something that is said or if you have any difficulty observing the witness on the videoconferencing screen, please raise your hand immediately.

PROPOSED

The Committee proposes the following amendment to M Crim JI 16.5, for second-degree murder. In light of the Court of Appeals opinion in People v. Spears (Docket No. 357848), holding that “without justification or excuse” is not an element of the offense of second-degree murder, it is proposed that paragraph (4) be deleted. Deletions are in strikethrough. No new language was added.

[AMENDED] M Crim JI 16.5

Second-Degree Murder

(1) [The defendant is charged with the crime of/You may also consider the lesser charge of] second-degree murder.¹ To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant caused the death of [name deceased], that is, that [name deceased] died as a result of [state alleged act causing death].²

(3) Second, that the defendant had one of these three states of mind: [he/she] intended to kill, or [he/she] intended to do great bodily harm to [name deceased], or [he/she] knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of [his/her] actions.³

~~[(4) Third, that the killing was not justified, excused, or done under circumstances that reduce it to a lesser crime.]~~⁴

Use Note

1. Where there is a question as to venue, insert M Crim JI 3.10, Time and Place (Venue).

2. Where causation is an issue, see the special causation instructions, M Crim JI 16.15-16.23.

3. Second-degree murder is not a specific intent crime. People v. Langworthy, 416 Mich 630; 331 NW2d 171 (1982).

4. Paragraph (4) may be omitted if there is no evidence of justification or excuse, and the jury is not being instructed on manslaughter or any offense less than manslaughter. Justification or excuse instructions may be inserted here, but they are more commonly given at a later time.

PROPOSED

The Committee proposes a new jury instruction, M Crim JI 23.10a (failure to return rental property), for the crime found at MCL 750.362a. This instruction is entirely new.

[NEW] M Crim JI 23.10a

Failure to Return Rental Property

(1) [The defendant is charged with/You may also consider the lesser offense of¹] failure to return rental property with [a value of $20,000 or more/a value of $1,000 or more but less than $20,000/a value of $200 or more but less than $1,000/some value less than $200]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that there was a written lease or rental agreement for [identify property leased] between [identify complainant] and the defendant.

(3) Second, that the [identify property leased] was given or delivered to the defendant according to the agreement.

(4) Third, that the agreement called for the return of the [identify property leased] at a specific time and place.

(5) Fourth, that [identify complainant or agent] sent a written notice by registered or certified mail to the defendant at [his/her] last known address directing the defendant to return the property by [specify date].

(6) Fifth, that the defendant refused to return the [identify property leased] or willfully failed to return it by that date.

(7) Sixth, that the defendant intended to defraud [identify complainant].

(8) Seventh, that the [identify property leased] had [a value of $20,000 or more/a value of $1,000 or more but less than $20,000/a value of $200 or more but less than $1,000/some value less than $200].

[(9) You may add together the value of all property leased in a 12-month period when deciding whether the prosecutor has proved the amount required beyond a reasonable doubt.]²

Use Note

1. Use this where the value of the leased property is in dispute and the instruction is read as a lesser offense.

2. Use this paragraph only where applicable.

PROPOSED

The Committee proposes the following new model criminal jury instruction, 25.8, to cover criminal activity for trespassing at a key facility under MCL 750.552c. This instruction it entirely new.

[NEW] M Crim JI 25. 8

Trespassing on Key Facility Property

(1) The defendant is charged with the crime of trespassing on the property of a key facility. To prove this charge, the prosecutor must

prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant was intentionally on the premises of or in a structure that was part of [identify key facility]¹, which is a key facility.

(3) Second, that the [identify key facility] was completely enclosed by a physical barrier, which could include a water barrier that would prevent pedestrian access.

(4) Third, that there were signs prohibiting entry to the key facility at every point where access could be gained to the facility that were at least 50 square inches in size with letters at least 1 inch high.

[Select the appropriate fourth element:]

(5) Fourth, that the defendant did not have permission or authority to [enter/remain at/enter and remain at] the facility.

[Or]

(5) Fourth, that the defendant [entered/remained/entered and remained] on the property without permission or authority after being instructed to leave the facility.

[(6) Fifth, that the defendant was not present on the premises of the key facility as part of a lawful assembly or a peaceful and orderly petition for the redress of grievances, such as a labor dispute between an employer and its employees.]²

Use Note

1. The list of key facilities is found at MCL 750.552c(1)(a) through (l):

(a) A chemical manufacturing facility.
(b) A refinery.
(c) An electric utility facility, including, but not limited to, a power plant, a power generation facility peaker, an electric transmission facility, an electric station or substation, or any other facility used to support the generation, transmission, or distribution of electricity. Electric utility facility does not include electric transmission land or right-of-way that is not completely enclosed, posted, and maintained by the electric utility.
(d) A water intake structure or water treatment facility.
(e) A natural gas utility facility, including, but not limited to, an age station, compressor station, odorization facility, main line valve, natural gas storage facility, or any other facility used to support the acquisition, transmission, distribution, or storage of natural gas. Natural gas utility facility does not include gas transmission pipeline property that is not completely enclosed, posted, and maintained by the natural gas utility.
(f) Gasoline, propane, liquid natural gas (LNG), or other fuel terminal or storage facility.
(g) A transportation facility, including, but not limited to, a port, railroad switching yard, or trucking terminal.(h) A pulp or paper manufacturing facility.
(i) A pharmaceutical manufacturing facility.
(j) A hazardous waste storage, treatment, or disposal facility.
(k) A telecommunication facility, including, but not limited to, a central office or cellular telephone tower site.
(l) A facility substantially similar to a facility, structure, or station listed in subdivisions (a) to (k) or a resource required to submit a risk management plan under 42 USC 7412(r).

2. MCL 750.552c(4) exempts persons present at a “key facility” from the statute if they are part of a “lawful assembly or a peaceful and orderly petition for the redress of grievances, including, but not limited to, a labor dispute between an employer and its employees.” This appears to be an affirmative defense requiring some supporting evidence. Read this paragraph only where the defendant asserts the defense and there is evidence to support it.

PROPOSED

The Committee proposes the following new model criminal jury instruction, M Crim JI 38.5, to cover the crime of Using the Internet to Disrupt Government or Public Institutions under MCL 750.543p. This instruction is entirely new.

[NEW] M Crim JI 38.5

Using the Internet to Disrupt Government or Public Institutions

(1) The defendant is charged with the crime of using the Internet to disrupt government or public institutions. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant used [the Internet/a telecommunications device or system/an electronic device or system]¹ in a way that disrupted the functioning of [public safety/educational/commercial/governmental] operations. To disrupt operations means to interrupt the normal functioning of those institutions.

(3) Second, that when the defendant disrupted [public safety/educational/commercial/governmental] operations, [he/she] intended to commit [a felony/the felony offense of (identify specific offense and provide elements)].

(4) Third, that the defendant acted willfully and deliberately. This means that [his/her] conduct was intentional and not the result of an accident and that [he/she] considered the pros and cons of committing the crime, thought about it, and chose [his/her] actions before [he/she] did it.

(5) Fourth, that the defendant knew or had reason to know that [his/her] action [would be likely to cause serious injury or death/ would cause a person to be restrained to be held for ransom, as a shield or hostage, for sexual conduct, for servitude, or for child sexually abusive activity/would conceal a child from his or her parent or guardian)²]. (6) Fifth, that through or by [his/her] action, the defendant intended to intimidate or coerce a civilian population or intended to influence or affect the conduct of government or a unit of government through intimidation or coercion.

Use Notes

1. These terms are defined in 47 USC 230(f)(1), MCL 750.145d(9)(f), 750.540c(9), and 750.219a(6)(b).

2. See MCL 750.543b(b) citing the kidnapping statutes, MCL 750.349 and 750.350.

PROPOSED

The Committee proposes the following new model criminal jury instruction, M Crim JI 40.12, to address the crime of failing to report a dead body under MCL 333.2841. This instruction is entirely new.

[NEW] M Crim JI 40.12

Failure to Report a Dead Body

(1) The defendant is charged with the crime of failing to report a dead body. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that [identify deceased person] died on or before [date of offense].

(3) Second, that the defendant discovered [identify deceased person]’s body.

(4) Third, that the defendant knew or had reason to know that [identify deceased person] was dead on discovering the body.

(5) Fourth, that the defendant failed to inform a law enforcement agency, a funeral home, or a 9-1-1 operator that [he/she] discovered the body.

[(6) Fifth, that the defendant did not know or have reason to know that a law enforcement agency, a funeral home, or a 9-1-1 operator had already been informed of the presence of the dead body.¹]

Use Notes

1. The Committee on Model Criminal Jury Instructions believes that a claim that the defendant knew or had reason to know that a law enforcement agency, a funeral home, or a 9-1-1 operator had already been informed of the location of the body is an affirmative defense, requiring evidence to support the claim. Read this paragraph only where the defendant asserts the defense and there is evidence to support the claim.