93guilt

LOUISIANA PUBLIC DEFENDER BOARD

_______________________________________

Sample Culpability Jury Instructions.

[1 - Presumption of Innocence]

The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the defendant guilty of every material element of the crime which he is charged. Before you could return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt [and to the exclusion of every other reasonable hypothesis consistent with innocence] that the defendant is guilty. The presumption of innocence attends the defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the Jury of his guilt beyond a reasonable doubt [and to the exclusion of every other reasonable hypothesis consistent with innocence]. The defendant is not required to prove his innocence.

See La. Code Crim. Pro. art. 804(A)(1).

[2 - Deliberations]

At this stage of the trial, the verdict of the jury must represent the considered judgement of each juror agreeing thereto. In other words, all twelve jurors must agree on a verdict in this case. It is your duty as jurors to consult with one another and to deliberate in view of reaching an agreement, if you can do so without violence to your individual judgement. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest convictions as to the weight of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

[3 - Selection of Foreperson]

Upon retiring to the jury room, you will select one from among your number to act as foreperson. The foreperson will preside over your deliberations and will be your spokesperson before the court in the event there is any matter about which you wish to communicate with the court. If it becomes necessary during your deliberations to communicate with the court, you may send a note by the bailiff, signed by your foreperson, or one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing; and the court will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing or orally here in open court.

[4 - General Instruction]

Members of the Jury, you have heard all of the testimony and received the evidence and will shortly hear arguments of counsel. The Court will now instruct you as to the rules of law which you will use and apply to this evidence in reaching your verdict. When you took your places in the jury box, you made an oath that you would follow and apply these rules of law to the evidence in reaching your verdict in this case. It is, therefore, your duty as jurors to follow the law which I shall now state to you. You are not to be concerned with the wisdom of any rule of law. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base your verdict upon any other view of the law than that given in these instructions by the Court.

You are not to single out one instruction alone as stating the law but you must consider these instructions as a whole. It is your exclusive province to determine the facts in this case and to consider and weigh the evidence for that purpose. The authority thus vested in you is not an arbitrary power, but must be exercised with sincere judgement and sound discretion. Both the State and the defendant have a right to expect that you will conscientiously consider and weigh the evidence and apply the law of the case. It is your duty to determine the facts and to determine them from the evidence produced in open court. You are required and expected to use your good common sense and sound honest judgement in considering and weighing the testimony of each witness who has testified in this case.

The evidence which you are to consider consists of the testimony and statements of the witnesses and the exhibits offered and received. You are also permitted to draw such reasonable inferences from the evidence as seem justified in the light of your own experience. Arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark.

The production of evidence in court is governed by rules of law. From time to time during the trial, it has been my duty as Judge to rule on the admissibility of evidence. You must not concern yourselves with the reasons for the Court's ruling since they are controlled and governed by rules of law. You should not infer from any rulings by the Court on these motions or objections to the evidence that the Court has any opinion on the merits favoring one side or the other. You should not speculate as to possible answers to questions which the Court did not require to be answered. Further, you should not draw any inference from the content of these questions. You are to disregard all evidence which was excluded by the Court from consideration during the course of the trial.

If in stating the law to you I repeat any rule, direction or idea or if I state the same in varying ways, no emphasis is intended and you must not draw any inference therefrom. The order in which these instructions are given has no significance as to their relative importance.

[5 - Consideration of Testimony]

You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor and manner while on the stand. Consider the witness' ability to observe the matters as to which he or she has testified, whether he or she impresses you as having an accurate recollection of these matters; and the extent to which it is contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood. After making your own judgement, you will give the testimony of each witness such credibility, if any, as you may think it deserves.

[6 - Principals]

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals to the offense, and may be found guilty of the same.

[7 - Accomplice Testimony]

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged accomplice, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged accomplices, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

[8(a) - Informant Testimony]

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged informant, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

* The accused is entitled to a special cautionary instruction on the credibility of an accomplice or a government informer when the testimony implicating the accused is elicited solely from the informer. See, e.g., United States v. Garcia, 528 F.2d 580, 587, 588 (1976) (holding that it is reversible error for a court to fail to give the cautionary instruction when the conviction is based solely on accomplice testimony with several inconsistencies -- even when the defendant failed to request such an instruction); State v. Schaffer, 398 So. 2d 1032 (La. 1981). Snitch testimony "ought not to be passed upon . . . under the same rules governing other and apparently credible witnesses. . . ." Crawford v. United States, 212 U.S. 183, 204, 28 S. Ct. 183, 53 L. Ed. 465 (1908).

[8(b) - Accomplice Testimony]

An accomplice is defined as one who is associated with another in the commission of the crime. An accomplice is a competent witness, either for the State or for the defendant, whether he has been convicted or not, whether he has pleaded guilty, or whether he is joined in the same information or indictment with the person or persons on trial or not.

Corroboration of the statement of an accomplice is desirable, but not always necessary; the jury may convict on his uncorroborated testimony, but still you should act upon his testimony with great caution, subject it to a careful examination in the light of other evidence in the case, and you are not to convict upon such testimony alone, unless satisfied, after a careful examination of its truth, and also that you can safely rely on it.

What the law means by corroboration of the testimony of an accomplice is not merely the corroboration of the accomplice's narrative and the mere details of how the crime charged was committed, but some real and independent corroboration tending to implicate the defendant in the commission of the offense charged. It is not sufficient to corroborate an accomplice as to the facts of the case generally. He should be corroborated as to some material fact which tends to prove that the accused was connected with the crime charged in the manner stated by the accomplice. The corroboration that merely raises a suspicion of guilt, because the accused had an opportunity to commit the offense, is not sufficient.

[9 - Credibility]

As the sole and exclusive judges of the facts, it is for you, and you alone, to determine the credibility or believability of the evidence. It is for you to determine what witness or witnesses, or other forms of evidence, you will believe, either in whole or in part. If upon a consideration of the evidence in this case, you find that there is a conflict in the testimony of the witnesses, it is your duty to settle this conflict. In doing so, you should consider all the factors relevant to determining credibility.

In passing upon credibility, you may consider all the facts and circumstances of the case, the witness' manner of testifying and demeanor on the stand, their intelligence, their interest or lack of interest, their means and opportunity for knowing the facts to which they testify, the nature of the facts to which they testify and the probability or improbability of their testimony. You may also consider their personal credibility in so far as it may legitimately appear from the trial of this case.

[10 - Impeachment]

In determining the credibility of particular testimony, you should also consider the extent to which the testimony was impeached. A witness may be impeached by disproving the facts to which the witness testified; by proof of general bad character; and by proof of contradictory or inconsistent prior testimony or statements made by the witness. To assess the importance of inconsistent or contradictory testimony or statements, you should determine (1) if such testimony was given or if such statements were made; (2) whether they are, in fact, inconsistent with or contradictory to the witness' present testimony; and, (3) whether or not the testimony or statements are material to the witness' testimony in the case.

If you find that a witness has been impeached by proof of previous contradictory or inconsistent testimony or statements, you may disregard that testimony. You may also consider that impeachment as relevant to your determination of the weight to be afforded the balance of the witness' testimony.

[11 - Police Testimony]

The testimony of a law enforcement officer should be considered by you just as any other evidence in the case. In evaluating his or her credibility you should use the same guidelines which you apply to the testimony of any witness. In no event should you give either greater or lesser credence to the testimony of any witness merely because he or she is a law enforcement officer.

[12 - Expert Testimony]

The law permits evidence of certain persons who are termed expert. Experts may testify to their opinions derived from their knowledge of particular matters. However, the ultimate weight to be given to expert testimony is a question to be determined by you. The testimony of any expert, like that of any other witness, is to be received by you and given such weight only as you think it is properly entitled to receive. You are not bound by the opinion testimony of any witness, expert or otherwise.

[13(a) - Evaluation of Defendant's Testimony]

The defendant has a right to become a witness in his or her own behalf. In weighing the witnesses testimony you should use the same guidelines that you would in evaluating the testimony of any witness.

[13(b) - Defendant's Constitutional Right not to Testify]

The defendant is under no duty to present evidence or testify. If he does not present evidence, or does not become a witness on his own behalf, no adverse or harmful inference may be drawn against him whatsoever. There are many reasons why a person may not present evidence which have nothing to do with guilt or innocence. He may not be well educated. He may not be articulate. Public attention may make him nervous and too ill at ease to gather their thoughts or speak well. A person may not testify for the simple reason that it is his or her legitimate and respected constitutional right not to testify.

Despite the number and variety of reasons why a person might not testify or present evidence, you are not to speculate concerning the reasons in this case. Nor are you to draw any inference whatsoever, beneficial or detrimental, and it shall not have any bearing on your consideration of the evidence or issues in this case.

[14 - Circumstantial Evidence]

If you can reconcile the evidence with any reasonable hypothesis consistent with the innocence of Mr. Client you must do so and find him not guilty.

15(a) - First Degree Murder

The Court instructs the jury that before you may find the defendant guilty of first degree murder you must find beyond a reasonable doubt that he committed the homicide of the victim, that he acted with specific intent to kill the victim, and that when he did so the victim was under twelve years of age.

Therefore, if the State has failed to prove beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence that Mr. Client committed the homicide of the victim then you may not find Mr. Client guilty to first degree murder. Furthermore, if the State has failed to prove beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence that Mr. Client acted with a specific intent to kill the victim then you may not find Mr. Client guilty of first degree murder.

Finally, if the State has failed to prove beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence that the victim was then less than twelve years of age then you may not find Mr. Client guilty of first degree murder.

If the defendant is convicted of first degree murder, there would be a second proceeding at which the jury would decide whether the defendant should be sentenced to death or to life imprisonment at hard labor without the benefit of pardon, parole or suspension of sentence.

* See La. R.S. Section 14:30.

15(b) - Specific Intent to Kill

The Court instructs the jury that specific intent is an essential element of the crime of first degree murder and that the state has the burden of proof of presenting evidence that the Defendant had the specific intent to kill [NAME OF VICTIM]. Evidence of specific intent must exclude every reasonable hypothesis that the accused did not have the specific intent to kill [NAME OF VICTIM].

* See State v. Brooks, 505 So. 2d 714, 717 (La. 1987) ("specific intent is a state of mind and . . . evidence of [it] must exclude every reasonable hypothesis of innocence.")

15(c) - Second Degree Murder (Felony Murder)

A responsive verdict to the crime of first degree murder is second degree murder.

Second degree murder may be defined as the killing of a human being when the offender is engaged in the perpetration of an aggravated rape, even though he has no intent to kill or inflict great bodily harm. Thus, in order to convict the defendant of second degree murder, you must find:

1) that the defendant killed the victim, whether or not he had the specific intent to kill or inflict great bodily harm on the victim, and

2) that the killing occurred while the defendant was engaged in the perpetration of an aggravated rape. Aggravated rape may be defined as anal or vaginal intercourse when the victim is under the age of twelve years. Emission is not necessary and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.

If convicted of second degree murder, the defendant will be sentenced to life imprisonment at hard labor without the benefit of pardon, parole or suspension of sentence.

* See La. R.S. Section 14:30.1.

15(d) - Manslaughter (Heat of Passion)

The Court instructs the jury that manslaughter is a responsive verdict to first degree murder. The defendant may be found guilty of manslaughter under Louisiana law if the following elements are proved from the evidence beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence:

1. the defendant caused the death of another in such a manner as would be first or second degree murder; but

2. the defendant acted in sudden heat of passion or heat of blood resulting from the defendant's subjective loss of self-control or cool reflection, so long as the defendant's blood has not actually cooled by the time of the homicide.

If you find from the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that:

1. the victim died as the result of actions taken by the defendant, but

then you would be authorized to convict the defendant of manslaughter. If the state has failed to prove any one or more of these elements beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, then you shall find Mr. Client not guilty of this form of manslaughter.

* See La. R.S. Section 14:31(2)(b). The facial provisions of the statute are unconstitutional in light of Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). See also In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Sandstrom v. Montana, 442 U.S. 510, 513-14, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). In Cheek v. United States, 498 U.S. 196, 111 S. Ct. 604, 112 L. Ed. 2d 617 (1991), the defendant, who was aptly named, defended a tax fraud case by arguing that he "honestly . . . believed that he was not required to pay income taxes. . . ." Id. at 626. The District Court instructed the jury "that only an objectively reasonable misunderstanding of the law negates the statutory reasonableness requirement." Id. at 627 (emphasis supplied). The Supreme Court reversed, holding, id. at 629:

Willfulness . . . requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.

15(e) - Manslaughter (Felony Type)

Another form of manslaughter occurs when there is a killing of a human being without any intent to cause the victim death or great bodily harm, while the offender is engaged in the perpetration or attempted perpetration of any felony not listed in the laws against first degree murder or second degree murder. One felony which is not listed in the laws against those offenses is the offense of oral sexual battery.

Oral sexual battery may be defined as the intentional touching of the genitals of the offender by the victim using the mouth or tongue of the victim, when the victim has not yet attained fifteen years of age and is at least three years younger than the offender.

Therefore, if you find that the state has proved beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that the defendant caused the death of the victim, without any intent to cause the victim death or great bodily harm, while the offender was engaged in the perpetration or attempted perpetration of oral sexual battery, then you may find the defendant guilty of manslaughter.

* See La. R.S. Section 15:31(2)(a). Louisiana permits manslaughter as a responsive verdict when a defendant has been charged with first degree murder for killing committed during the course of various felonies. State v. Schrader, 518 So. 2d 1024 (La. 1988). When manslaughter is an appropriate responsive verdict, the jury should receive appropriate instruction on what constitutes manslaughter.

[16 -- Justifiable Homicide]

The law provides that a homicide is justifiable when it is committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention.

If, therefore, the prosecution has failed to disprove to you, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, that Mr. Client believed that he had to kill [NAME OF VICTIM] in order that another person should not become the victim of a criminal act, then the crime of homicide would be justifiable.

* See La. R.S. Section 14:20(2).

[17(a) - Insanity Definition]

The Court instructs the jury that Mr. Client has entered a plea of not guilty by reason of insanity. Under the law of Louisiana, Mr. Client may not be held criminally responsible for acts done when, because of mental disease or defect, he was incapable of distinguishing between right and wrong when he killed the victim, with reference to the conduct in question.

For Mr. Client to have been insane means that, whether from nature or by accident or disease, he was incapable of planning and acting, or of having knowledge of the nature and quality of the act he was doing, or incapable of realizing his responsibility to society and to others, with relation to the death of the victim.

* See La. R.S. Section 14:14; State v. Marmillion, 339 So. 2d 788, 797 (La. 1976) ("whether from nature or by accident or disease, as to render him incapable of planning and acting, or of having knowledge of the nature and quality of the act he is doing; incapable of realizing his responsibility to society and to others; in sum, incapable of distinguishing between right and wrong").

[17(b) - Insanity Definition]

It is not the mere knowledge of right and wrong that is necessarily determinative, but the application of that knowledge to the facts of the alleged crime. For example, if a person were suffering psychosis at the time of the crime, he would be out of touch with reality, and one who is out of touch with reality is not capable of distinguishing between right and wrong.

* See La. R.S. Section 14:14; State v. Roy, 395 So. 2d 664, 668 (La. 1981) ("psychosis means one who is out of touch with reality. One who is out of touch with reality is not capable of distinguishing between right and wrong").

[17(c) - Insanity Definition]

The Court instructs the jury that Mr. Client has entered a plea of not guilty by reason of insanity. Under the law of Louisiana Mr. Client may not be held criminally responsible for acts done when, because of mental disease or defect, he was incapable of distinguishing between right and wrong when he killed the victim, with reference to the conduct in question.

It is not the mere knowledge of right and wrong that is necessarily determinative, but the application of that knowledge to the facts of the alleged crime. For example, Mr. Client would be insane even if he knew that killing was wrong, if he did not realize that he was killing the victim, but believed that he was doing something morally justifiable.

* See La. R.S. Section 14:14; State v. Roy, 395 So. 2d 664, 668 (La. 1981).

[17(d) - Insanity Burden of Proof]

Mr. Client has the burden of proving that he was legally insane at the time of the crime. Mr. Client, however, does not have to prove his insanity beyond a reasonable doubt; the law requires only that Mr. Client prove his insanity by a preponderance of the evidence. By preponderance of the evidence I mean the superior weight of the evidence which, while not enough to free the mind from a reasonable doubt, is sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.

* See La. C. Crim. Pro. art. 652.

[17(e) - Insanity Burden of Proof]

The defendant has the burden of proving his insanity at the time of the commission of the offense by a preponderance of the evidence. Thus, the defendant must establish that it is more probable than not that he was insane at the time of the commission of the crime.

* See State v. Leeming, 612 So. 2d 308, 315 (La. App. 5th Cir. 1993); State v. Bell, 543 So. 2d 1013 (La. App. 3d Cir. 1989).

[17(f) - Insanity Consequences]

If found not guilty by reason of insanity, Mr. Client shall be confined in a secure mental health facility. He cannot be discharged without a hearing where it must be determined that he will pose no danger to others or himself. If the court determines that he cannot be released without such a danger, he shall continue to be confined. The only limitation on the length of time he could be confined under these conditions would be that it not exceed the maximum sentence for which he could have been incarcerated for the crime. In this instance, then, unless it was determined that he posed no danger, Mr. Client could lawfully be confined in a secure mental facility for the rest of his natural life.

* See State v. Gurley, 376 So. 2d 110, 112 (La. 1979).

[17(g) - Insanity Peremptory Instruction]

The Court instructs the jury to find the defendant, Mr. Client, not guilty by reason of insanity.

* See State v. Roy, 395 So. 2d 664, 668 (La. 1981) ("no rational fact finder could have found [defendant] sane on the record evidence"); State v. Lozard, 542 So. 2d 707, 709 (La. App. 4th Cir.), writ denied, 548 So. 2d 1245 (La. 1989)

[18 - Form of Verdict]

The Court instructs the Jury that if you find the Defendant guilty as charged of first degree murder, the form of your verdict shall be as follows: "We, the Jury, find the Defendant guilty of first degree murder."

The Court further instructs the Jury that if you find the Defendant guilty of second degree murder, the form of your verdict shall be as follows: "We the Jury, find the Defendant guilty of second degree murder."

The Court further instructs the Jury that if you find the Defendant guilty of manslaughter, the form of your verdict shall be as follows: "We, the Jury, find the Defendant guilty of manslaughter."

The Court further instructs the Jury that if you find the Defendant Not Guilty by Reason of Insanity, the form of your verdict shall be as follows: "We, the Jury, find the Defendant Not Guilty by Reason of Insanity."

The Court further instructs the Jury that if you find the Defendant Not Guilty, the form of your verdict shall be as follows: "We, the Jury, find the Defendant Not Guilty."

You should write your verdict on the back of this sheet of paper.

[19 - Need for Further Instructions]

I further instruct you that you will have a copy of my written charge with you in the jury room. If you have any problems understanding it, your foreperson should write your question on a note, and summon a bailiff to deliver it to me by knocking on the jury room door. I will then do my best to answer your question, within the allowances of the law.
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