THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 18 - CHAPTER 309
Go to Volume 18 Table of Contents  -  Go to Chapter 309 Table of Contents

Macro 309.3      Elements

    Macro 3.1   Burden Of Proof: Every Element Of The Offense
    Macro 3.2   Directed Verdict On Element
    Macro 3.3   Conflicting Instructions On Elements
    Macro 3.4   Directed Verdict On Essential Factual Issue
    Macro 3.5   Failure To Accurately Define An Element
    Macro 3.6   Elements Of Crime Based On Failure To Perform A Legal Duty
    Macro 3.7   Concurrence Of Act And Intent Or Mental State
    Macro 3.8   Applicability Of Federal Constitutional Rights To Sentencing Decisions

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 18 - CHAPTER 309

    See NCJIC Constitutional Macro 2.3 [Burden Of Proof: Elements And Essential Facts].

    309.3.2    Directed Verdict On Element

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require the prosecution to prove every element of the charged offense beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

    These rights are implicated by jury instructions which direct the jury’s verdict on any element or elements of the charged offense. (See U.S. v. Gaudin (1995) 515 US 506, 509-12 [115 SCt 2309; 132 LEd2d 444]; Osborne v. Ohio (1990) 495 US 103, 122-23 [110 SCt 1691; 109 LEd2d 98].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require the prosecution to prove every element of the charged offense beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

    These rights are implicated by jury instructions which give conflicting definitions of an element or elements of the charged offense. (See People v. Lee (CA 1987) 43 C3d 666, 673-74 [28 CR 406] and cases cited therein; see also People v. Macedo (CA 1989) 213 CA3d 554, 561 [261 CR 754] ["conflicting or inadequate instructions on intent are closely related to instructions that completely remove the issue of intent from the jury’s consideration...they constitute federal constitutional error"].)

    "Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity." (Francis v. Franklin (1985) 471 US 307, 322 [105 SCt 1965; 85 LEd2d 344]; see also Cabana v. Bullock (1986) 474 US 376, 384, fn 2 [106 SCt 689; 88 LEd2d 704].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by the Constitution which forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Henderson v. Kibbe (1977) 431 US 145, 153 [97 SCt 1730; 52 LEd2d 203].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything ... it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt...." (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; see also U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)

    "When a judge gives an instruction preventing the jury from considering a material issue, the instruction is equivalent to an impermissible directed verdict on the issue." (U.S. v. Piche (4th Cir. 1992) 981 F2d 706, 716.) Hence, the jury must be given an opportunity to decide the essential factual questions presented by the evidence. (See People v. Figueroa (CA 1986) 41 C3d 714, 724 [224 CR 719]; U.S. v. Voss, 787 F2d at 398.)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.3.5    Failure To Accurately Define An Element

    This instruction is required by the Constitution which forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Henderson v. Kibbe (1977) 431 US 145, 153 [97 SCt 1730; 52 LEd2d 203].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything ... it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt...." (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; see also U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

       309.3.6    Elements Of Crime Based On Failure To Perform A Legal Duty

    This instruction is required by the Constitution which forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Henderson v. Kibbe (1977) 431 US 145, 153 [97 SCt 1730; 52 LEd2d 203].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything ... it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt...." (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; see also U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

      309.3.7    Concurrence Of Act And Intent Or Mental State

    This instruction is required by the Constitution which forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Henderson v. Kibbe (1977) 431 US 145, 153 [97 SCt 1730; 52 LEd2d 203].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything ... it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt...." (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; see also U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.3.8    Applicability Of Federal Constitutional Rights To Sentencing Decisions

    Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] expressly adopted the view foreshadowed in Jones v. U.S. (1999) 526 US 227 [119 SCt 1215; 143 LEd2d 311] that a fact which increases the penalty beyond the statutory maximum is an element of the charge to which federal constitutional protections, including trial by jury and proof beyond a reasonable doubt, apply. This rule is grounded upon the 14th Amendment right to due process and the 6th Amendment right to trial by jury: "[P]ractice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond a reasonable doubt." (Apprendi, 120 SCt 2359.) "'[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' [Citation.]" (Apprendi, 120 SCt at 2363.)

    As to whether the rule applies to recidivist fats (i.e., prior convictions), see also NCJIC 115.2.2 [Recidivist Sentencing Enhancements: Applicability Of Applicability Of Federal Constitutional Rights To Prior Convictions].