Proposed criminal jury instructions

first_img Proposed criminal jury instructions Proposed criminal jury instructions March 1, 2005 PUBLIC SERVANT Regular Newscenter_img The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing revisions to the Florida Standard Jury Instructions in Criminal Cases. The Court invites all interested persons to comment on the committee’s proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before April 1, with a certificate of service verifying that a copy has been served on the committee chair, Judge Dedee S. Costello, Bay County Courthouse, P.O. Box 1089, Panama City 32402-1089, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Please label envelope to avoid erasure. IN THE SUPREME COURT OF FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (NO. 2004-1), CASE NO. SC04-2481 Proposal 1. Revised instruction for justifiable use of deadly force 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Read in all cases An issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly forcelikely to cause death or great bodily harm . “Deadly force” is defined as force likely to cause death or great bodily harm. ­ Give if applicable § 782.02, Fla. Stat. The use of deadly force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting: 1. another’s attempt to murder [him] [her], or 2. any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon any dwelling house occupied by [him] [her], or 4. any attempt to commit (applicable felony) in any dwelling house occupied by [him] [her]. Insert and define appli­cable felony that defendant alleges victim attempted to commit Give if applicable §§ 776.012, 776.031, Fla.Stat. A person is justified in using deadly force likely to cause death or great bodily harm if [he] [she] reasonably believes that such force is necessary to prevent 1. imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define appli­cable forcible felony that defendant alleges victim was about to commit Aggressor § 776.041, Fla.Stat. However, the use of deadly force likely to cause death or great bodily harm is not justifiable if you find: Give if applicable ­ 1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony) ; or Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force likely to cause death or great bodily harm to (assailant) . b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force likely to cause death or great bodily harm , but (assailant) continued or resumed the use of force. Force in resisting arrest § 776.051(1), Fla.Stat. A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be, or reasonably appears to be a law enforcement officer. Give if appli­cable However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another) , but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla.Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla.Stat., may need to be given in connection with this instruction. Read in all cases ­ In deciding whether defendant was justified in the use of deadly force likely to cause death or great bodily harm , you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force likely to cause death or great bodily harm , the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Necessity to avoid use of deadly force. Read in all cases The defendant cannot justify the use of deadly force likely to cause death or great bodily harm unless [he] [she] used every reasonable means within [his] [her] power and consistent with [his] [her] own safety to avoid the danger before resorting to that force. Retreat. Read in all cases The fact that the defendant was wrongfully attacked cannot justify [his] [her] use of deadly force likely to cause death or great bodily harm if by retreating [he] [she] could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] use of deadly force likely to cause death or great bodily harm was justifiable. Defense of home. Give if applicable If the defendant was attacked in [his] [her] own home or on [his] [her] own premises, [he] [she] had no duty to retreat and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using deadly force likely to cause death or great bodily harm if it was necessary to prevent: [death or great bodily harm to [himself] [herself] [another].] [the commission of a forcible felony.] Define felony Defense of home against co-occupant ­ If the defendant was attacked in [his] [her] own home or on [his] [her] own premises by [a co-occupant] [any person who was lawfully on the premises], the defendant had a duty to retreat within the residence to the extent reasonably possible without increasing [his] [her] own danger of death or great bodily harm. However, the defendant was not required to flee [his] [her] home and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using deadly force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself] [herself]. Prior threats. Give if applicable If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim) , then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force likely to cause death or great bodily harm , if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty. Reputation of victim. Give if applicable If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. Physical abilities. Read in all cases In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) . Read in all cases If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force likely to cause death or great bodily harm , you should find the defendant not guilty. ­ However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force likely to cause death or great bodily harm , you should find [him] [her] guilty if all the elements of the charge have been proved. Proposal 2. Revised instruction for justifiable use of nondeadly force 3.6(g) JUSTIFIABLE USE OF NONDEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Read in all cases An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of nondeadly force not likely to cause death or great bodily harm . Nondeadly force is defined as force not likely to cause death or great bodily harm. In defense of person § 776.012, Fla.Stat. (Defendant) would be justified in using nondeadly force not likely to cause death or great bodily harm against (victim) if the following two facts are proved: Give if applicable 1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful forceagainst the [defendant] [other person]. 2. The use of unlawful force by (victim) must have appeared to (defendant) ready to take place. In defense of property § 776.031, Fla.Stat. (Defendant) would be justified in using nondeadly force not likely to cause death or great bodily harm against (victim) if the following three facts are proved: ­ Give if applicable 1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property. 2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect. 3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior. Aggressor § 776.041, Fla.Stat. The use of nondeadly force not likely to cause death or great bodily harm is not justifiable if you find: Give if applicable 1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony) . Define applicable forcible felony 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using nondeadly force not likely to cause death or great bodily harm to (assailant) . b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of nondeadly force not likely to cause death or great bodily harm , but (assailant) continued or resumed the use of force. ­ Force in resisting arrest § 776.051(1), Fla.Stat. A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be or reasonably appears to be a law enforcement officer. Give the following instruction if applicable However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla.Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to § § 776.012, 776.031, or 776.041, Fla.Stat., may need to be given in connection with this instruction. Read in all cases In deciding whether the defendant was justified in the use of nondeadly force not likely to cause death or great bodily harm , you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of nondeadly force not likely to cause death or great bodily harm , the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Reputation of victim. Give if applicable If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. Physical abilities. Read in all cases In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) . ­ Read in all cases If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of nondeadly force not likely to cause death or great bodily harm , you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of nondeadly force not likely to cause death or great bodily harm , then you should find [him] [her] guilty if all the elements of the charge have been proved. Proposal 3. Revised instruction for rules for deliberation 3.10 RULES FOR DELIBERATION These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict: 1. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter. 2. This case must be decided only upon the evi­dence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instruc­tions. 3. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone. 4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case. When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5. 5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a prop­er sentence if the defendant is found guilty. ­ 6. Whatever verdict you render must be unani­mous, that is, each juror must agree to the same verdict. Give 7 if applicable 7. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony. 8. Your verdict should not be influenced by feel­ings of prejudice, bias or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions. Proposal 4. Revised instruction for aggravated child abuse 16.1 AGGRAVATED CHILD ABUSE § 827.03(2), Fla.Stat. To prove the crime of aggravated child abuse Aggravated Child Abuse , the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) Give as applicable a. committed aggravated battery upon (victim) . b. willfully tortured (victim) . c. maliciously punished (victim) . d. willfully and unlawfully caged (victim) . e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement. 2. (Victim) was under the age of 18 years. ­ Definitions: Give as applicable In order to prove that an aggravated battery was committed, the state State must prove the following: 1. (Defendant) intentionally Give as applicable a. touched or struck (victim) against the will of (victim) . b. caused bodily harm to (victim) . 2. In so doing, (defendant) intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] or [used a deadly weapon]. A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. “ Willfully” means knowingly, intentionally, and purposely. “ Maliciously” means done from ill will, hatred, spite, or an evil intent wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury . Give in all cases if 1(e) is alleged “Child Abuse” means [the intentional infliction of physical or mental injury upon a child] [an intentional act that could reasonably be expected to result in physical or mental injury to a child] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child]. ­ Proposal 5. Revised instructions for bribery offenses 19.1 BRIBERY OF PUBLIC SERVANT § 838.015(1), Fla.Stat. To prove the crime of Bribery of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was made for the purpose of corruptly influencing (person bribed) in the performance of some act or omission that Give 4a or 4b as applicable a. [ (defendant) believed to be [within the official discretion of (person bribed) ] . ] . [in violation of a public duty of (person bribed) ] . ] . [in performance of a public duty of (person bribed) ] . ] . b. [ (person bribed) represented as being [within [his] [her] official discretion ] . ] . [in violation of [his] [her] public duty ] . ] . [in performance of [his] [her] public duty ] . ] . ­ Definition § 838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the [his] [her] public duties. The court now instructs you that a (office of person bribed) is a public servant. § 838.015(2), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the act with respect to which the bribe was [given] [offered] [promised] was properly pending before (person bribed) , or that by law it might be properly brought before [him] [her], or that [he] [she] was qualified to act in the desired way, or that [he] [she] had jurisdiction over the matter, or that [his] [her] official action was necessary to achieve the purpose of the defendant. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. 19.2 BRIBERY BY PUBLIC SERVANT § 838.015(1), Fla.Stat. To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as ( read from charge) . ­3. The (read from charge) was something of value, benefit or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was made with intent of corruptly being influenced in the performance of some act or omission that Give 4a or 4b as applicable a. [ (person making bribe) believed to be [within the official discretion of (defendant) ] . ] . [in violation of a public duty of (defendant) ] . ] . [in performance of a public duty of (defendant) ] . ] . b. [(defendant) represented as being [within [his] [her] official discretion ] . ] . [in violation [his] [her] public duty ] . ] . [in performance of [his] [her] public duty ] . ] . Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the public servant’s public duties . The court now instructs you that a (office of defendant) is a public servant. § 838.015(2), Fla.Stat. ­ In order for the defendant to be guilty, it is not necessary that the act with respect to which [the bribe was [requested] [solicited] [accepted]] [an agreement was reached for the bribe] was properly pending before the defendant, or that by law it might be properly brought before [him] [her], or that [he] [she] was qualified to act in the desired way, or that [he] [she] had jurisdiction over the matter, or that [his] [her] official action was necessary to achieve the purpose of the person making the bribe. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. 19.3 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT § 838.016(1), Fla.Stat. To prove the crime of Bribery Unlawful Compensation or Reward of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future performance, nonperformance, or violation of any act or omission of (person bribed) that Give 4a or 4b as applicable a. [ (defendant) believed to be [within the official discretion of (person bribed) ] . ] . ­[in violation of a public duty of (person bribed) ] . ] . [in performance of a public duty of (person bribed) ] . ] . b. [ (person bribed) represented as being [within [his] [her] official discretion] . ] . [in violation of [his] [her] public duty] . ] . [in performance of [his] [her] public duty].] Definition § 838.014(6) Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . The court now instructs you that a (office of person bribed) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was [given] [offered] [promised] was accomplished or was within the official discretion or public duty of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. § 838.016(1), Fla.Stat. ­ There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. 19.4 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT § 838.016(1), Fla.Stat. To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future performance, nonperformance or violation of any act or omission of (defendant) that Give 4a or 4b as applicable a. [ (person making bribe) believed to be [within the official discretion of (defendant) ] . ] . [in violation of a public duty of (defendant) ] . ] . [in performance of a public duty of (defendant) ] . ] . b. [ (defendant) represented as being [within [his] [her] official discretion] . ] . ­[in violation of [his] [her] public duty] . ] . [in performance of [his] [her] public duty] . ] . Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] the public servant’s public duties . The court now instructs you that a (office of defendant) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was requested or solicited was accomplished or was within the official discretion or public duty of the defendant. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. § 838.016(1), Fla.Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. 19.5 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT § 838.016(2), Fla.Stat. ­ To prove the crime of Bribery Unlawful Compensation or Reward of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission that Give 4a or 4b as applicable a. [ (defendant) believed to be [within the official discretion of (person sought to be influenced) ] . ] . [in violation of a public duty of (person sought to be influenced) ] . ] . [in performance of a public duty of (person sought to be influenced) ] . ] . b. [was represented to (defendant) as being [within the official discretion of (person sought to be influenced) ] . ] . [in violation of the public duty of (person sought to be influenced) ] . ] . [in performance of the public duty of (person sought to be influenced) ] . ] . ­ Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. 19.6 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT § 838.016(2), Fla.Stat To prove the crime of Bribery Unlawful Compensation or Reward by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge) . ­3. The (read from charge) was something of value, benefit, or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission which Give 4a or 4b as applicable a. [ (Person making bribe) believed to be [within the official discretion of (person sought to be influenced) ] . ] . [in violation of a public duty of (person sought to be influenced) ] . ] . [in performance of a public duty of (person sought to be influenced) ] . ] . b. [was represented to (person making bribe) as being [within the official discretion of (person sought to be influenced) ] . ] . [in violation of the public duty of (person sought to be influenced) ] . ] . [in performance of the public duty of (person sought to be influenced) ] . ] . Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . ­The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. Proposal 6. Revised instruction for theft offenses 14.1 THEFT § 812.014, Fla.Stat. To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim) . 2. [He] [She] did so with intent to, either temporarily or permanently, [deprive (victim) of [his] [her] right to the property or any benefit from it.] [appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.] Degrees; give if property is of monetary value up to extent of charge If you find the defendant guilty of theft, you must determine by your verdict whether: ­a. [The value of the property taken was $100,000 or more.] b. [The property taken was cargo valued at $50,000 or more that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.] c. [The property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.] d. [The property taken was emergency medical equipment valued at $300 or more that was taken from a licenced facility or from an emergency medical aircraft or vehicle.] e. [The value of the property taken was $20,000 or more but less than $100,000.] f. [The value of the property taken was $300 or more but less than $20,000.] g. [The value of the property taken was less than $300.] Give if applicable h. [The property was [a will, codicil, or other testamentary instrument.] [a firearm.] [a motor vehicle.] [a commercially farmed animal.] [an aquaculture species raised at a permitted aquaculture facility.] [a fire extinguisher.] [2,000 or more pieces of fruit.] [taken from a posted construction site.] [a stop sign.] [anhydrous ammonia.] ] I. [The value of the property taken was $100 or more but less then $300, and was taken from [a dwelling] [the enclosed curtilage of a dwelling].] Inferences; give if applicable § 812.022(1), Fla.Stat. ­ Proof that a person presented false identification not current in respect to name, address, place of employment, or other material aspect in connection with the leasing of personal property, or failed to return leased property within 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with unlawful intent to commit theft. Inferences; give if applicable § 812.022(2), Fla.Stat. Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen. Definitions; give if applicable § 812.012(1), Fla.Stat. “Cargo” means partial or entire shipments, containers, or cartons of property which are contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight consolidation facility, or air navigation facility. § 812.014(2)(b)3, Fla.Stat. “Emergency medical equipment” means mechanical or electronic apparatus used to provide emergency service and care or to treat medical emergencies. § 395.002(10), Fla. Stat. “Emergency service and care” means medical screening, examination, and evaluation by a physician, or other medically appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists, and if it does, the care, treatment or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility. § 395.002(17), Fla.Stat. “Licensed facility” means a hospital, ambulatory surgical center, or mobile surgical facility licensed by the Florida Agency for Health Care Administration. See Chapter 395, Fla.Stat. § 812.014(2)(b)3, Fla.Stat. “Emergency medical aircraft or vehicle” means any aircraft, ambulance or other vehicle used as an emergency medical service vehicle that has been issued a permit in accordance with Florida law. § 812.012(3), Fla.Stat. “Obtains or uses” means any manner of ­ (a) Taking or exercising control over property. (b) Making any unauthorized use, disposition, or transfer of property. (c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise. (d) (1) Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; mis­application; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, deception; or (2) Other conduct similar in nature. “ Endeavor” means to attempt or try. § 812.012(4), Fla.Stat. “Property” means anything of value, and includes: real property, including things growing on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests, and claims; and services. § 812.012(6), Fla.Stat. “Services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes: repairs or improvements to property; professional services; private, public or government communication, transportation, power, water, or sanitation services; ­ lodging accommodations; and admissions to places of exhibition or entertainment. § 812.012(10), Fla.Stat. “Value” means: The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense. In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible. In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege, or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret. If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $300. Amounts of value of separate properties, involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several persons, may be totaled in determining the grade of the offense. Proposal 7. Revised grand jury handbook and grand jury instructions 30 GRAND JURY HANDBOOK INTRODUCTION (No Change) WHAT IS A GRAND JURY (No Change) TERM OF THE GRAND JURY (No Change) WHO ARE GRAND JURORS Grand jurors are United States citizens and Florida legal residents of this state and their respective counties who are at least 18 years of age and who possess a driver’s license or identification card issued by the Department of Highway Safety and Motor Vehicles, or who execute an affidavit indicating a desire to serve as a juror. All jurors are selected at random and their names are taken from lists prepared by the clerk of the circuit court. The process of selecting jurors is done in most counties by the county commissioners and in some counties by a specially constituted jury commission. The process of selecting the statewide grand jury is handled by the State Court Administrator for the Florida Supreme Court. When making up the jury list, the officers compiling it are required to select only citizens they believe to be law-abiding, and of proven integrity, good character, sound judgment and intelligence, and who are neither physically nor mentally infirm. DISQUALIFICATION TO SERVE AS A GRAND OR PETIT JUROR Any person who has been convicted of a felony or bribery , forgery, perjury, or larceny is disqualified to sit as a juror, unless his or her civil rights have been restored. A person under prosecution for any crime is disqualified. Most government officials are disqualified to serve on a jury. An elected public official is not eligible to be a grand juror. FREQUENTLY USED WORDS AND PHRASES (No Change) GRAND JURY AND PETIT JURY DISTINGUISHED There are two kind of juries: grand juries and petit juries. The grand jury consists of up to 23 not fewer than 15 nor more than 21 (or 18 for statewide grand jury) members. A petit jury, depending upon the type of trial, consists of either 6 or 12 members. The grand jury and the petit jury have entirely different purposes and functions. A petit jury actually tries a case and renders a verdict of guilty or not guilty after hearing both sides. A grand jury does not try a case on the issue of guilt or innocence. The grand jury rarely hears both sides. Its function is simply to hear witnesses as to a charge of crime, by the State, and to determine whether the person, or persons, so charged should be brought to trial. The grand jury has been called both a sword and shield of justice — a sword because it is a terror to criminals, a shield because it is protection of the innocent against unjust prosecution. The tremendous power of the grand jury obviously creates grave and solemn responsibilities to see that these powers are not perverted or abused. A grand jury, being possessed with these tremendous powers and unless motivated by the highest sense of justice, might find indictments not warranted by the evidence and thus become a source of oppression to the citizenry. Conversely, a misguided grand jury might dismiss charges against those who should be prosecuted. The importance of the grand jury’s power is emphasized by the fact that it is one of the most independent bodies known to the law. HISTORY OF THE GRAND JURY (No Change) THE GRAND JURY AS AN ACCUSING AND INVESTIGATIVE BODY (No Change) OFFICERS OF THE GRAND JURY ­The judge who presided over the empaneling of the grand jury in the “charge to the grand jury” advised you formally and in great detail as to how the grand jury is organized and functions. In summary, the grand jury consists of 18 or, in some places, of 23 15 but not more than 21 members. Its officers are the foreperson, who will preside over the grand jury deliberations to make sure they are carried on in an orderly fashion including overseeing the examination of the witnesses; a vice-foreperson, who will preside in the absence of the foreperson or if for any reason the foreperson is not able to carry out his or her duty; and the clerk, who will keep a record of the proceedings had before the grand jury and formally make return of these records to the clerk of the circuit court (or clerk of the Supreme Court in the case of the statewide grand jury) for safekeeping. The foreperson and vice-foreperson are appointed by the judge and the clerk is appointed by the foreperson (or in the case of the statewide grand jury, may be selected by the group). The state attorney (or the statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutors) will act as the legal advisers to the grand jury. The grand jury also will be provided an official court reporter or recorder to record the testimony before the grand jury. If the grand jury has its own budget, a treasurer of the grand jury may also be appointed to keep account of all receipts and disbursements made to or from the grand jury budget. If any question should arise concerning how the grand jury shall operate or function, you may apply to the judge, who will advise you. PROCEDURES Not less than 18 15 members of a 23 member grand jury , and 15 of an 18-member statewide grand jury must always be present to constitute a quorum. If less than a quorum exists, the proceedings of the grand jury must be halted until a quorum is present. Grand jurors, who, because of an emergency, find that they will be unable to attend a grand jury session should advise the grand jury clerk or foreperson immediately. An affirmative vote of at least 12 members of the grand jury is necessary to the return of a true bill or indictment. Therefore, even though a quorum is present it still requires at least 12 votes of individual members, rather than a mere majority of those present, in order to return a true bill. PROCEEDINGS OF THE GRAND JURY (No Change) DETERMINATION WHETHER TO RETURN AN INDICTMENT OR A NO TRUE BILL When the grand jury has heard all necessary or available witnesses and is prepared to deliberate on the issue whether to indict or return a no true bill, the foreperson must compel all persons to leave the grand jury room except the members of the grand jury themselves. No other person is permitted in the grand jury room during its deliberations, even including the state attorney (or the statewide prosecutor), court reporter and interpreter. When the question of whether to indict or return a no true bill is presented, all grand jurors have the right to comment on the evidence and to express their views of the matter. Only when all members of the grand jury have expressed themselves and each has been given the opportunity to be heard should a vote be taken. A vote to return an indictment can be found only upon the affirmative vote of at least 12 members of the grand jury. Similar proceedings should be taken when the matter to be discussed is not a criminal charge or indictment but a presentment, as noted above. If all persons, except the grand jurors, are not removed from the grand jury room during its deliberations, any indictment or presentment would be nullified. THE STATE ATTORNEY (OR THE STATEWIDE PROSECUTOR) AS LEGAL ADVISOR TO THE GRAND JURY (No Change) SECRECY OF GRAND JURY PROCEEDINGS (No Change) PROTECTION AND IMMUNITY OF GRAND JURORS (No Change) ON BEING A GRAND JUROR — SOME PRACTICAL SUGGESTIONS (No Change) CONCLUSION (No Change) 31 FLORIDA GRAND JURY INSTRUCTIONS 1 PRELIMINARY STATEMENTS (No Change) ­ 2 INSTRUCTIONS ON CRIMINAL MATTERS 2.1 – 2.2 (No Change) 2.3 The guilt or innocence of a person indicted by the grand jury is determined by a trial jury that will be specially impanelled empaneled to try the case. The trial jury hears all the evidence, on both sides, in an adversary proceeding under the supervision of a trial judge. Upon the trial based upon the indictment the accused is entitled to be present and have the assistance of counsel and a verdict is rendered only after the accused has had an opportunity to see and hear the witnesses, examine the evidence and have the case argued by counsel. The trial jury will be charged by the trial judge on the law applicable to the case. These safeguards are designed to protect and preserve the constitutional rights of an accused. 2.4 – 2.10 (No Change) 3 CIVIL INSTRUCTIONS (No Change) 4 PROCEDURE 4.1 – 4.3 (No Change) 4.4 Every grand jury shall consist of not less than ____ 15 nor more than ____ 21 persons. At least ____ 15 of the jury must be present at all times when the jury is functioning. A favorable vote of not less than ____ 12 of those present is necessary to the finding of any Atrue bill,@ presentment or report. (The Statewide Grand Jury shall be composed of 18 members of which 15 members shall constitute a quorum.) 4.5 – 4.10 (No Change) 5 – 11 (No Change)last_img