News & Notices

From the Committee on Model Criminal Jury Instructions September 2024

September 2024

Michigan Bar Journal

From the Committee on Model Criminal Jury Instructions

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by Nov. 1, 2024. Comments may be sent in writing to Christopher M. 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 a new instruction, M Crim JI 5.14a (screening of witness), where the court has permitted a witness to be screened from viewing the defendant at trial. The instruction is entirely new.

[NEW] M Crim JI 17.26

Unlawfully Posting a Message

(1) [The defendant is charged with unlawfully posting a message./You may consider the lesser offense of unlawfully posting a message that (was not in violation of a court order/did not result in a credible threat/was not posted about a person less than 18 with the defendant being 5 or more years older).¹] To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant posted a message through any medium of communication, including on the internet, a computer, a computer program, a computer system, a computer network, or another electronic medium of communication.²

(3) Second, that the message was posted without [name complainant]’s consent.

(4) Third, that the defendant knew or had reason to know that posting the message could cause two or more separate non-continuous acts of unconsented contact with [name complainant] by another person.³

(5) Fourth, that the defendant posted the message with the intent that it would cause conduct that would make [name complainant] feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(6) Fifth, that the conduct arising from posting the message is the type that would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(7) Sixth, that the conduct arising from posting the message did cause [name complainant] to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

[For aggravated message posting, select any that apply from the following according to the charges and the evidence:]⁴

(8) Seventh, that the message

a. was posted [in violation of a restraining order of which the defendant had actual notice/in violation of an injunction/in violation of (a court order/a condition of parole)]; [or]

b. resulted in a credible threat being made to [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 [or]

c. was posted when [name complainant] was less than 18 years of age and the defendant was 5 or more years older than [name complainant].

Use Notes

MCL 750.411s(7) permits prosecution of this crime where some elements of the offense may not have occurred in the state of Michigan or in the same county. The “venue” instruction, M Crim JI 3.10 (Time and Place), may have to be modified accordingly.

1. This alternative sentence is for use as a lesser included offense where an aggravating factor is charged and the defendant challenges whether the prosecution has proven the aggravating factor.

2. Definitions for these terms can be found at MCL 750.411s(8).

3. Unconsented contact is defined at MCL 750.411s(8)(j) and is not limited to the forms of conduct described in that definition. If the jury requests a definition of the phrase, 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 that it finds is included under the purview of the statute.

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

5. Credible threat is defined at MCL 750.411s(8)(e). By this definition, a “credible threat” appears to meet the “true threat” standard of Virginia v. Black, 538 US 343, 359 (2003).

PROPOSED

The committee proposes two new instructions, M Crim JI 33.3 (Assaulting or Harassing a Service Animal) and 33.3a (Interfering with a Service Animal Performing Its Duties), for the offenses found at MCL 750.50a. The instructions are entirely new.

[NEW] M Crim JI 33.3

Assaulting or Harassing a Service Animal

(1) The defendant is charged with the crime of assaulting or harassing a service animal. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally assaulted, beat, harassed, injured, or attempted to assault, beat, harass, or injure a service animal.
A “service animal” means a dog or miniature horse that is individually trained to do work or perform tasks for the benefit of a person with a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by a service animal must be directly related to the person’s disability.¹

(3) Second, that the defendant knew or should have known that the animal was a service animal.

(4) Third, that the defendant knew or should have known that the service animal was used by a person with a disability. The prosecutor alleges that [name complainant] is a person with a disability.

A person with a disability is an individual who has a physical or mental impairment that substantially limits one or more major life activities including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. This includes an armed services veteran who has been diagnosed with post-traumatic stress disorder, traumatic brain injury, or another service-related disability.²

(5) Fourth, that when the defendant assaulted, beat, harassed, or injured the service animal, or attempted to so, [he/she] did so maliciously.

“Maliciously” means that

[Provide any that may apply:]

(a) the defendant knew that [he/she] was assaulting, beating, harassing, or injuring the service animal, or the defendant intended to do so, or

(b) the defendant knew that [his/her] conduct would or be likely to disturb, endanger, or cause emotional distress to [name complainant], or the defendant intended to do so.

(6) You may, but you do not have to, infer that the defendant acted maliciously if you find that [name complainant] asked the defendant to avoid or to quit assaulting or harassing the service animal but the defendant continued to do so.

You should weigh all of the evidence in this case in determining whether the defendant acted maliciously, including this inference, if you choose to make it. The prosecutor still bears the burden of proving all of the elements beyond a reasonable doubt.

Use Notes

1. See the Code of Federal Regulations, 28 CFR 36.104, stating:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. (Emphasis added.)

2. This sentence does not need to be read where the person with a disability is not a veteran.

[NEW] M Crim JI 33.3a

Interfering with a Service Animal Performing Its Duties

(1) The defendant is charged with the crime of interfering with a service animal performing its duties. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that [name complainant] was a person with disability who used a service animal for work or tasks directly related to [his/ her] disability.

A person with a disability is an individual who has a physical or mental impairment that substantially limits one or more major life activities, including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. This includes an armed services veteran who has been diagnosed with post-traumatic stress disorder, traumatic brain injury, or another service-related disability.¹

A “service animal” means a dog or miniature horse that is individually trained to do work or perform tasks for the benefit of a person with a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by a service animal must be directly related to the person’s disability.²

(3) Second, that the service animal was performing duties for [name complainant].

(4) Third, that the defendant knew or should have known that the animal was a service animal being used by [name complainant].

(5) Fourth, that the defendant intentionally impeded or interfered with the service animal when it was performing its duties or attempted to impede or interfere with the animal when it was performing its duties.

(6) Fifth, that when the defendant impeded or interfered with the service animal’s duties, or attempted to so, [he/she] did so maliciously.
“Maliciously” means that

[Provide any that may apply:]

(a) the defendant knew that [he/she] was impeding or interfering with duties performed by the service animal, or the defendant intended to do so, or

(b) the defendant knew that [his/her] conduct would or be likely to disturb, endanger, or cause emotional distress to [name complainant], or the defendant intended to do so.

(7) You may, but you do not have to, infer that the defendant acted maliciously if you find that [name complainant] asked the defendant to avoid or to quit impeding or interfering with the service animal as it was performing its duties, but the defendant continued to do so.

Use Notes

1. This sentence does not need to be read where the person with a disability is not a veteran.

2. See the Code of Federal Regulations, 28 CFR 36.104, stating:

PROPOSED

The committee proposes amendments to M Crim JI 35.1a, formerly identified as (Malicious Use of Telecommunications Service), for the offense found at MCL 750.540e. The amendments (1) refine the title and first paragraph of the instruction to include the possible intents required under the statute, (2) add language addressing the “malicious” wording in the statute that had not been included when the instruction was originally adopted, and (3) reformat the second element to make it more user friendly than the single-paragraph original format. Deletions are in strikethrough and new language is underlined.

[AMENDED] M Crim JI 35.1a

Malicious Use of a Telecommunications Service to Frighten, Threaten, Harass, or Annoy

(1) The defendant is charged with the crime of malicious use of a telecommunications service to frighten, threaten, harass, or annoy another person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant used [identify service provider] to communicate with [identify complainant].

(3) Second, that, when communicating with [identify complainant], the defendant, knowing it was wrong, intended to [threatened physical harm or damage to any person or property/made a deliberately false report that a person had been injured, had suddenly taken ill, had died, or had been the victim of a crime or an accident/deliberately refused or failed to disengage a connection between telecommunications devices or between a telecommunications device and other equipment provided by a telecommunications service1or device/used vulgar, indecent, obscene, or offensive language or suggested any lewd or lascivious act in the course of the conversation or message/repeatedly initiated telephone calls and, without speaking, deliberately hung up or broke the telephone connection when or after the telephone call was answered/made an uninvited commercial telephone call soliciting business or contributions that was received between the hours of 9 p.m. and 9 a.m., whether the call was made by a person or recording device/deliberately engaged or caused to engage the use of (identify complainant)’s telecommunications service or device in a repetitive manner that caused interruption in the telecommunications service or prevented (identify complainant) from using (his/her) telecommunications service or device].

[Provide any of the following that apply according to the charges and evidence:]

(a) threaten physical harm to a person or damage to property in the course of a conversation or message.

(b) make a false report that a person had [been injured/suddenly taken ill/died/been the victim of a crime or an accident].

(c) refuse or fail to disengage a connection between a [identify communication device] and another [identify communication device] or between a [identify communication device] and other equipment that sends messages through the use of a telecommunications service or device.

(d) use vulgar, indecent, obscene, or offensive language or proposed any lewd or lascivious act during a conversation or message.

(e) repeatedly initiate a telephone call and, without speaking, deliberately hung up or broke the telephone connection when or after the telephone call was answered.

(f) make an unsolicited commercial telephone call between the hours of 9 p.m. and 9 a.m.

An unsolicited commercial telephone call is one made by a person or recording device, on behalf of a person, corporation, or other entity, soliciting business or contributions.

(g) cause an interruption in [identify complainant/another person]’s telecommunications service or prevented [identify complainant/another person] from using [his/her] telecommunications service or device by the defendant’s repeated use of [his/her] telecommunications service or device.

(4) Third, that the defendant did so with the intent to terrorize, frighten, intimidate, threaten, harass, molest, annoy, or disturb the peace and quiet of [identify complainant].¹

Use Notes

This is a specific intent crime.

If the jury has not been provided with the definition of a telecommunications service provider, a telecommunications service, or a telecommunications access device and the court finds that it would be appropriate to do so, the following are suggested based on the wording of MCL 750.219a:

A telecommunications service provider is a person or organization providing a telecommunications service, such as a cellular, paging, or other wireless communications company, or a facility, cell site, mobile telephone switching office, or other equipment for a telecommunications service, including any fiber optic, cable television, satellite, Internet-based system, telephone, wireless, microwave, data transmission or radio distribution system, network, or facility, whether the service is provided directly by the provider or indirectly through any distribution system, network, or facility.

A telecommunications service is a system for transmitting information by any method, including electronic, electromagnetic, magnetic, optical, photo-optical, digital, or analog technologies.

A telecommunications access device is any instrument, including a computer circuit, a smart card, a computer chip, a pager, a cellular telephone, a personal communications device, a modem, or other component that can be used to receive or send information by any means through a telecommunications service.

PROPOSED

The committee proposes a new instruction, M Crim JI 42.1 (Misconduct in Office), for the common law crime of misfeasance or malfeasance in office punishable under MCL 750.505. The instruction is entirely new.

[NEW] M Crim JI 42.1

Misconduct in Office

(1) The defendant is charged with the crime of misconduct in office. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant was [a/an/the] [identify public office held by the defendant] [on/between] [date(s) of offense].

(3) Second, that the defendant [describe wrongful conduct alleged by the prosecutor].

(4) Third, that the defendant’s conduct was [malfeasance/misfeasance]. [Malfeasance is illegal or wrongful conduct/Misfeasance is a legal act but done in an illegal or wrongful manner].

(5) Fourth, that the defendant was performing [his/her] duties as [a/an/the] [identify public office held by the defendant] or was acting under the color of [his/her] office.

“Acting under the color of office” means that the defendant performed the acts in [his/her] role as a public officer or official or was able to perform the acts because being a public officer or official gave the defendant the opportunity to perform the acts.

(6) Fifth, that the defendant acted with corrupt intent.

The word “corrupt” is defined as depraved, perverse, or tainted.¹ Corrupt intent includes intentional or purposeful misbehavior related to the requirements or duties of the defendant as a public officer, contrary to the powers and privileges granted to the defendant as a public officer, or against the trust placed in the defendant to perform as expected as a public officer. Corrupt intent does not include erroneous acts made in good faith or honest mistakes committed or made in the discharge of duties, and it does not require that the defendant receive money or property in profit for the conduct.

Use Note

These three terms are further defined in People v. Coutu (On Remand), 235 Mich App 695, 706-707; 599 NW2d 556 (1999).