News & Notices

From the Committee on Model Criminal Jury Instructions November 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 March 1, 2025. 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 jury instruction, M Crim JI 14.1a (Perjury Committed During Investigative Subpoena Proceeding), for the crime of making a false statement under oath at an investigative subpoena proceeding as set forth in MCL 767A.9. This instruction is entirely new.

[NEW] M Crim JI 14.1a

Perjury Committed During Investigative Subpoena Proceeding

(1) The defendant is charged with the crime of perjury during investigative subpoena proceedings. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant took an oath. An oath is a solemn promise to tell the truth.*

(3) Second, that the defendant took that oath during an investigative subpoena proceeding.

(4) Third, that while under that oath the defendant made a false statement. The statement that is alleged to have been made in this case is that [give details of alleged false statement].

(5) Fourth, that the defendant knew that the statement was false when [he/she] made it.

[(6) Fifth, that the investigation involved the crime of (state capital crime being investigated).]1

Use Note

* If appropriate, substitute “affirmation” for “oath.”

  1. Use only where the allegations and evidence involve the aggravating factor of investigating a capital offense.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by March 1, 2025. 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 jury instruction, M Crim JI 15.18a (Moving Violation in a Work Zone or w Zone Causing Death or Injury), for the offense of committing a moving traffic violation in a work zone or school bus zone that results in death or injury as defined in MCL 257.601b. This instruction is entirely new.

[NEW] M Crim JI 15.18a

Moving Violation in a Work Zone or School Bus Zone Causing Death or Injury

(1) [The defendant is charged with the crime/You may consider the lesser charge1] of committing a moving traffic violation in a [work/school bus] zone that caused [the death of/an injury to] a person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant operated a motor vehicle.2 To operate means to drive or have actual physical control of the vehicle.

(3) Second, that while operating the motor vehicle, the defendant committed a moving violation by [describe the moving violation that carries a 3 or more point penalty under MCL 257.320a].

(4) Third, that when [he/she] committed the violation, the defendant was in a [work/school bus] zone:

[Select from the following:]

(a) A work zone is a portion of a street or highway that is between a “work zone begins” sign and an “end road work” sign.

(b) If construction, maintenance, or utility work activities were being conducted by a work crew and more than one moving vehicle, a work zone is a portion of a street or highway between a “begin work convoy” sign and an “end work convoy” sign.

(c) If construction, maintenance, surveying, or utility work a tivities were conducted by a work crew and one moving or stationary vehicle exhibiting a rotating beacon or strobe light, a work zone is a portion of a street or highway between the following points:

i. 150 feet behind the rear of the vehicle or the point from which the beacon or strobe light is first visible on the street or highway behind the vehicle, whichever is the point closest to the vehicle, and

ii. 150 feet in front of the front of the vehicle or the point from which the beacon or strobe light is first visible on the street or highway in front of the vehicle, whichever is the point closest to the vehicle.

(d) A “school bus zone” is the area within 20 feet of a school bus that has stopped and is displaying two alternately flashing red lights at the same level.3

(5) Fourth, that by committing the moving violation, the defendant caused [the death of (name deceased)/(name injured person) to suffer an injury4]. To cause [the death of (name deceased)/such injury to (name injured person)], the defendant’s moving violation must have been a factual cause of the [death/injury], that is, but for committing the moving violation, the [death/injury] would not have occurred. In addition, the [death/injury] must have been a direct and natural result of committing the moving violation.

(6) Fifth, that the [death/injury] was not caused by the negligence of (name deceased/name injured person) in the work zone or school bus zone.

Negligence is the failure to use ordinary care like a reasonably careful person would do under the circumstances. It is up to you to decide what a reasonably careful person would or would not do.5]6

Use Note

  1. Use when instructing on this crime as a lesser offense.
  2. The term motor vehicle is defined in MCL 257.33.
  3. A school bus zone is defined in MCL 257.601b(5)(c) and does not include the opposite side of a divided highway per MCL 257.682(2).
  4. The word injury is not statutorily defined.
  5. This definition of negligence is drawn generally from M Civ JI 10.02 (Negligence of Adult – Definition).
  6. Read this paragraph only where the defense has introduced evidence of negligence by the deceased or injured person. This appears to be an affirmative defense under MCL 257.601b(4).

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by March 1, 2025. 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 amending two jury instructions, M Crim JI 20.31 (Gross Indecency) and M Crim 20.33 (Indecent Exposure), to add an alternative element that would apply when the defendant is charged with being a sexually delinquent person under MCL 750.10a. The committee also proposes deleting M Crim JI 20.32 (Sodomy) as being incompatible with the holding in Lawrence v. Texas, 539 US 558 (2003). Deletions are in strikethrough and new language is underlined.

[AMENDED] M Crim JI 20.31

Gross Indecency

(1) The defendant is charged with the crime of committing an act of gross indecency. 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 one or more of the following:1

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

(a) entry into another person’s [vagina/anus] by 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.

or

(b) entry into another person’s mouth by 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.

or

(c) touching of another person’s [genital openings/genital organs] with the defendant’s mouth or tongue.

or

(d) entry by [any part of one person’s body/some object] into the genital or anal opening 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.

or

(e) masturbation of oneself or another.

or

(f) masturbation in the presence of a minor, whether in a public place or private place.

[Add (3) unless only (2)(f) is being given.]

(3) Second, that the sexual act was committed in a public place. A place is public when a member of the public, who is in a place the public is generally invited or allowed to be, could have been exposed to or viewed the act.2

[Use the following paragraph only if the defendant is also charged with being a sexually delinquent person under MCL 750.10a.]

[(4) Third, that the defendant was a sexually delinquent person. A person is sexually delinquent when his or her behavior is characterized by repetitive or compulsive acts that show (a disregard of consequences or the recognized rights of others/the use of force on another person in attempting sexual relations of any nature/the commission of sexual aggressions against children under the age of 163).]

Use Note

  1. This list of acts is not intended to be exhaustive. See People v. Drake, 246 Mich App 637; 633 NW2d 469 (2001).
  2. If necessary, the court may add that if the sexual act is committed in a public place, the consent of the participants or the acquiescence of any observer is not a defense.
  3. Read any that apply according to the charges and evidence.

M Crim JI 20.32

Sodomy

DELETED as being incompatible with the holding in Lawrence v. Texas, 539 US 558 (2003).

[AMENDED] M Crim JI 20.33

Indecent Exposure

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

(2) First, that the defendant exposed [his/her] [state part of body].

(3) Second, that the defendant knew that [he/she] was exposing [his/her] [state part of body].

[Use the following paragraph only if a violation of MCL 750.335a(2)(b) is charged.]

(4) Third, that the defendant was fondling [his/her] [genitals/pubic area/buttocks/breasts*].

(5) [Third/Fourth], that the defendant did this in a place under circumstances in which another person might reasonably have been expected to observe it and which created a substantial risk that someone might be offended or in a place where such exposure is likely to be an offense against your community’s generally accepted standards of decency and morality. In determining this, you must think about the nature of the act and all of the circumstances surrounding the act. [State any other relevant factors, e.g., the age and experience of the persons who observed the act, the purpose of the act, etc.]

[Use the following paragraph only if the defendant is also charged with being a sexually delinquent person under MCL 750.10a.]

[(6) Third/Fourth/Fifth), that the defendant was a sexually delinquent person. A person is sexually delinquent when his or her behavior is characterized by repetitive or compulsive acts that show (a disregard of consequences or the recognized rights of others/ the use of force on another person in attempting sexual relations of any nature/the commission of sexual aggressions against children under the age of 16).1]

Use Note

* Female defendants only.

  1. Read any that apply according to the charges and evidence.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by March 1, 2025. 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 jury instruction, M Crim JI 41.4 (Making, Possessing, or Providing an Eavesdropping Device), for the crime of manufacturing, possessing, or transferring an eavesdropping device as set forth in MCL 750.539f. This instruction is entirely new.

[NEW] M Crim JI 41.4

Making, Possessing, or Providing an Eavesdropping Device

(1) The defendant is charged with the crime of making, possessing, or providing an eavesdropping device. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [made a device1/possessed a device/provided a device to (identify recipient)] that could overhear, record, amplify, or transmit the private discussion of other persons.

(3) Second, that the defendant [intended to use the device/intended to allow the device to be used] to overhear, record, amplify, or transmit the private discussion of others without all persons’ permission.2

[Persons can include individuals, partnerships, corporations, or associations.]3

[Use the following if the defendant is alleged to have provided the eavesdropping device to someone else:]

(4) Third, that when the defendant provided the device, [he/she] knew that it was intended to be used to overhear, record, amplify, or transmit the private discussion of others without all persons’ permission.

Use Note

  1. MCL 750.539f provides “any device, contrivance, machine or apparatus designed or commonly used for eavesdropping.” The court may use any synonymous term.
  2. This is the definition of eavesdropping found at MCL 750.539a(2).
  3. MCL 750.539a(4) defines person as “any individual, partnership, corporation or association.” Use this definition where a complainant could be a partnership, corporation, or association.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by March 1, 2025. 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 amending M Crim JI 7.11 (Legal Insanity) to add a missing alternative method of satisfying the “substantial capacity” prong of the insanity defense under MCL 768.21a(1). Deletions are in strike-through, and new language is underlined.

[AMENDED] M Crim JI 7.11

Legal Insanity; Mental Illness; Intellectual Disability; Burden of Proof

(1) The defendant says that [he/she] is not guilty by reason of insanity. A person is legally insane if, as a result of mental illness or intellectual disability, [he/she] was incapable of appreciating the nature and quality of [his/her] conduct, or was incapable of understanding the wrongfulness of [his/her] conduct, or was unable to conform [his/her] conduct to the requirements of the law. The burden is on the defendant to show that [he/she] was legally insane.

(2) Before considering the insanity defense, you must be convinced beyond a reasonable doubt that the defendant committed the [crime/crimes] charged by the prosecutor. If you are not, your verdict should simply be not guilty of [that/those] offense[s]. If you are convinced that the defendant committed an offense, you should consider the defendant’s claim that [he/she] was legally insane.

(3) In order to establish that [he/she] was legally insane, the defendant must prove two 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 [he/she] was mentally ill and/or intellectually disabled.1

(a) “Mental illness” means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or the ability to cope with the ordinary demands of life.

(b) “Intellectual disability” means significantly subaverage intellectual functioning that appeared before the defendant was 18 years old and impaired two or more of [his/her] adaptive skills.2

(5) Second, the defendant must prove that, as a result of [his/her] mental illness and/or intellectual disability, [he/she] either lacked substantial capacity to appreciate the nature and quality of [his/her] act, or lacked substantial capacity to appreciate the wrongfulness of [his/her] act, or lacked substantial capacity to conform [his/her] conduct to the requirements of the law.

(6) You should consider these elements separately. If you find that the defendant has proved both of these elements by a preponderance of the evidence, then you must find [him/her] not guilty by reason of insanity. If the defendant has failed to prove either or both elements, [he/she] was not legally insane.

Use Note

An individual who was under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his or her alleged offense is not considered to have been legally insane solely because of being under the influence of alcohol or controlled substances. MCL 768.21a(2).

  1. This paragraph may be modified if the defendant is claiming only one aspect of this element.
  2. The court may provide the jury with a definition of adaptive skills where appropriate. The phrase is defined in MCL 330.1100a(3) and means skills in 1 one or more of the following areas:

(a) Communication.
(b) Self-care.
(c) Home living.
(d) Social skills.
(e) Community use.
(f) Self-direction.
(g) Health and safety.
(h) Functional academics.
(i) Leisure.
(j) Work.


The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by March 1, 2025. 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 amending two jury instructions, M Crim JI 7.3 (Lesser Offenses of Murder) and M Crim 16.11 (Involuntary Manslaughter-Firearm Intentionally Aimed), to reflect the repeal of the negligent homicide statute, former MCL 750.324, and statutory involuntary manslaughter’s status as a cognate lesser included offense of murder, see MCL 750.329; People v. Smith, 478 Mich 64 (2007). Deletions are in strike-through, and new language is underlined.

[AMENDED] M Crim JI 7.3

Lesser Offenses: Involuntary Manslaughter; Intentional Aiming of Firearm; Careless Discharge of a Firearm; Negligent Homicide

(1) However, even if the defendant is not guilty of murder, [he/ she] may be guilty of a less serious offense. [If [he/she] willingly did something that was grossly negligent toward human life or if [he/she] intended to cause injury / If the gun went off as (he/she) purposely pointed or aimed it at someone], [he/ she] may be guilty of involuntary manslaughter.

(2) Even if the defendant is not guilty of murder or involuntary manslaughter, you may decide that the defendant did something careless, reckless, or ordinarily negligent that caused the death. In that case, [he/she] may be guilty of [careless, reckless or negligent use of a firearm / negligent homicide].

(3) To sum up, when you consider the charge of murder, you should also consider whether the defendant is guilty of _____ ________________________________________ or _______ __________________________________. In a few moments, I will describe this these crimes in detail, and I will tell you what terms like “gross negligence” mean.

Use Note

Use (1) or (1) and (2) as applicable.

[AMENDED] M Crim JI 16.11

Involuntary Manslaughter-Firearm Intentionally Aimed

(1) [The defendant is charged with the crime of __________________ / You may also consider the lesser charge of] involuntary manslaughter. 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, [name deceased] died as a result of [state alleged act causing death].

(3) Second, that death resulted from the discharge of a firearm.1 [A firearm is an instrument from which (shot / a bullet) is propelled by the explosion of gunpowder.]

(4) Third, at the time the firearm discharged went off, the defendant was intentionally aiming or pointing it at [name deceased].

(5) Fourth, at that time, the defendant intended to point the firearm at [name deceased].1

[(6 5) Fifth Fourth, that the defendant caused the death without lawful excuse or justification.]2

Use Note

1. This is a specific intent crime. Firearm is defined in MCL 750.222(e) as “any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive.”

2. Paragraph (6 5) should be given only if there is a claim by the defense that the killing was excused or justified.