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 VOLUME 11 - CHAPTER 251
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251.1 Abandonment

    251.1.1 Abandonment -- Burden Of Proof
    251.1.2 Withdrawal

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 VOLUME 11 - CHAPTER 251

RATIONALE: If the defendant abandoned the criminal venture prior to completion of an attempt or to attachment of accomplice or conspiracy liability, then the prosecution has failed to meet its burden of proving all elements of the charge beyond a reasonable doubt. Hence, it should be the prosecution's burden to prove beyond a reasonable doubt that the defendant did not abandon the venture before attachment of criminal liability.

POINTS AND AUTHORITIES: See Givens v. State (GA 1994) 448 SE2d 687, 688 [if defendants had requested specific instruction regarding the state's burden of proof with respect to their affirmative defense of abandonment, the trial court would have been required to give it].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.3].

See 6th Circuit Pattern Jury Instructions - Criminal 5.03.

    The prosecution has the burden to prove beyond a reasonable doubt that the defendant did not abandon the charged crime before committing it. If, after consideration of all the evidence, you have a reasonable doubt about whether the prosecution has met this burden, you must give the defendant the benefit of that doubt and vote to find [him] [her] not guilty.

[Cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 2-8 [Defense Of Abandonment-Burden Of Proof] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

SAMPLE INSTRUCTION # 2:

    It is [a] [the] defense theory that the defendant abandoned [his] [her] [alleged] [intent to commit] [preparation for] the crime before becoming criminally liable for an attempt to commit the crime.  

    The prosecution must prove beyond a reasonable doubt that the defendant committed all elements of a criminal attempt, as defined in these instructions, before [he] [she] abandoned [the intent to commit the crime] [preparation for the crime].

    The defendant does not have to prove abandonment

    If, after considering all the evidence, you have a reasonable doubt that the prosecution proved all elements necessary for a criminal attempt before abandonment by the defendant, you must give the defendant the benefit of that doubt and return a verdict of not guilty.

[Source: FORECITE National™.]

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 VOLUME 11 - CHAPTER 251

    See FORECITE National™ 251.10 [Withdrawal As Defense Theory].