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91.2 Escape: Miscellaneous Issues

    91.2.1 Escape: Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior Conviction
    91.2.2 Escape: Cautionary Instruction Regarding Defendant’s Prior Criminal Arrest
    91.2.3 Escape: Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner
    91.2.4 Escape: Whether Lawful Custody Is Factual Or Legal Question
    91.2.5 Defendant Must Personally Use Force Or Violence Or Aid And Abet Or Conspire With The Person Who Used Force Or Violence
    91.2.6 Inapplicability Of Flight Instruction To Crimes Where Flight Is An Element

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RATIONALE: When the defendant is charged with escape, the jury will necessarily learn that the defendant was previously convicted. Hence, a cautionary instruction may be appropriate.

POINTS AND AUTHORITIES: A cautionary instruction may be needed to "deal with the fact that evidence of a prior conviction will be before the jury in most escape cases. It is intended to advise the jury that the prior conviction is a necessary element of the escape offense but should not be used to find that the defendant is probably guilty of the escape charge simply because he has been convicted before. It should be given only at the request of the defendant, since it may serve to highlight the prior conviction." (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1774 [Escape Form Custody: Jail Or Prison Escape] comment p. 4 (University of Wisconsin Law School, 2000).)

    See also FORECITE National™ 27.4 [Impeachment Of Witness (Nondefendant) By Prior Conviction].

    See also FORECITE National™ 27.3.2 [Prior Conviction Of Defendant].

    See also FORECITE National™ 107.2.6 [Exfelon In Possession Of Firearm: Stipulation Removing Prior Felony From Jury -- Jury Should Not Be Concerned With Why Possession Is Illegal].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.4].

See generally, FORECITE National™ 305.5.7 [Escape].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

    The defendant’s custody as a result of a prior criminal conviction is an essential element of this offense.  However, you must not consider it for any other purpose. Particularly, you must remember that conviction of the defendant of a crime at some previous time is not evidence proof that the defendant is guilty of the offense  now charged.  You may find [him] [her] guilty of the charged crime only if the prosecution has proved beyond a reasonable doubt that [he] [she] committed it.

[Cf. Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 41 [Defendant's Testimony: Impeachment by Prior Conviction] (1988); WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1774 [Escape From Custody: Jail Or Prison Escape] ¶ 9 (University of Wisconsin Law School, 2000).]

    The defendant's prior conviction was admitted for the sole purpose of establishing that [he] [she] had previously been convicted of a felony -- an essential element of the charge. You must not draw any inference of guilt from this prior conviction.

[Source: FORECITE National™.]

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RATIONALE: When the defendant is charged with escape following his or her arrest the jury will necessarily learn that the defendant was previously arrested. Hence, a cautionary instruction may be appropriate.

POINTS AND AUTHORITIES: The sample instruction below is intended to "deal with the fact that the evidence of a prior arrest will be before the jury in many escape cases. It is intended to advise the jury that the arrest is a necessary element of the escape offense but should not be used to find that the defendant is probably guilty of the escape charge simply because he has been arrested before. It should be given only at the request of the defendant, since it may serve to highlight the prior arrest." (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1772 [Escape Form Custody Resulting From Legal Arrest For A Crime] comment p. 5 (University of Wisconsin Law School, 2000).)

    See also FORECITE National™ 25.15 [Evidence That Suggests Defendant Was Previously Arrested Or Convicted].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See generally, FORECITE National™ 305.5.7 [Escape].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 27.4.4 [Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner].

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    91.2.4    Escape: Whether Lawful Custody Is Factual Or Legal Question

PRACTICE NOTE: If an issue arises concerning whether or not the prisoner was in custody at the time of the escape it will have to be determined whether or not to submit this issue to the jury. The 9th Circuit has held that whether the defendant was in custody is a legal question which need not be submitted to the jury in the absence of a factual dispute regarding the circumstances relating to the custody. (U.S. v. Keller (9th Cir. 1990) 912 F2d 1058, 1061; see also U.S. v. McKim (1975) 509 F2d 769, 774 ["To the extent the circumstances of the arrest raise questions of fact, these questions must be submitted to the jury; to the extent they raise questions of the legal significance of facts, as they often will in cases involving the Fourth Amendment and the exclusionary rule, they are questions for the trial court"].)

    See also FORECITE National™ 300.10.4 [Constitutional Right To Jury Determination Of Factual Component Of Mixed Questions Of Law And Fact].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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RATIONALE: A prisoner who doesn't actually use force, or aid and abet in such use, should not be guilty of escape simply because the prisoner took advantage of the conditions created by others.

POINTS AND AUTHORITIES: See People v. Moretto (CA 1994) 21 CA4th 1269, 1276 [26 CR2d 719] [prisoner must have personally use force or violence in order to escape or aided and abetted or conspired with the person who used force or violence]; but see People v. Davis (CA 1985) 166 CA3d 760, 767 [212 CR 673] [force or violence provisions in the California escape statutes apply to prisoners who escape knowing that the previous or contemporaneous use of force or violence created the conditions that made their escape possible].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 34.3.17 [Inapplicability Of Flight Instruction To Crimes Where Flight Is An Element].