THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Basic Elements Of A Criminal Allegation: Criminally Reckless/Criminally Negligent
1. Criminally Reckless
Conduct: Elements
2. Criminally
Reckless/Criminally Negligent: Jury To Consider Conduct Itself And
Not Results
Of Conduct
3. Jury May Consider
Whether Defendant's Conduct Created A High Probability
Of Great Bodily Harm And
Whether Victim Suffered GBI
4. Law Does Not Impose
Upon Anyone An Absolute Duty To Avoid An Accident
5. Violation Of Safety
Statute Does Not Necessarily Constitute Negligence
6. Jury Not To Consider
Evidence Of Drinking As Evidence Of Negligence
Or Recklessness
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Criminally Reckless Conduct: Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Reckless homicide is committed by one who recklessly causes the death of another human being.
Before the defendant may be found guilty of second degree reckless homicide, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following two elements of this offense were present.
First, that the defendant caused the death of __________ (name of victim).
Second, that the defendant caused the death by criminally reckless conduct.
The first element requires that the relation of cause and effect exists between the death of __________ (name of victim) and the conduct of the defendant. Before the relation of cause and effect can be found to exist, it must appear that the defendant's conduct was a substantial factor in producing the death.
The second element requires that the defendant caused the death by criminally reckless conduct. This requires that the defendant's conduct created an unreasonable and substantial risk of death or great bodily harm to another person and that the defendant was aware that his conduct created such a risk.
If you are satisfied beyond a reasonable doubt that the defendant caused the death of __________ (name of victim) by criminally reckless conduct, you should find the defendant guilty of second degree reckless homicide.
If you are not so satisfied, you must find the defendant not guilty.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Criminally Reckless/Criminally Negligent: Jury To Consider Conduct Itself And Not Results Of Conduct
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In determining whether the defendant's conduct was criminally reckless, you are instructed to consider only the conduct itself and not any harm resulting from that conduct. In other words, you should set to one side the hindsight that death or injury ensued.
AUTHORITIES:
Somers v. Superior Court in and for County of Sacramento, 32 Cal. App. 3d 961, 108 Cal. Rptr. 630, 636 (1973).
SAMPLE INSTRUCTION # 2:
In determining whether the defendant's conduct was criminally reckless or negligent, you are instructed to consider only the conduct itself and not any harm resulting from that conduct. In other words, you should set to one side the hindsight that death or injury ensued.
AUTHORITY:
Somers v. Superior Court in and for County of Sacramento, 32 Cal. App.3d 961, 108 Cal. Rptr. 630, 636 (1973).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Johnson, Case No. F-954865 (Milwaukee County, Wisconsin 1996); State v. Pezze, File No. 91-CF-45 (Bayfield County Circuit Court, March, 1992).
SAMPLE INSTRUCTION # 3:
Recklessness, if it exists, is to be found from a person's conduct and not simply from evidence that he or she has been drinking. In ________ (state, e.g., Wisconsin), the law recognizes that even intoxicated persons may handle a firearm without doing so in a reckless or negligent manner. A person who voluntarily consumes alcohol must use the same degree of care in the operation of a vehicle as one who has not had anything to drink -- no more, no less.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
See NCJIC 92.4.2.8 [Reckless Homicide/Involuntary Manslaughter: Equating Being Under The Influence With Recklessness Is Improper Mandatory Presumption].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Jury May Consider Whether Defendant's Conduct Created A High Probability Of Great Bodily Harm And Whether Victim Suffered GBI
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
As a matter of law, the injuries allegedly suffered by __________ (name of victim) did not amount to great bodily harm. In deciding whether the defendant's alleged conduct created a high probability of great bodily harm, you may consider that, in fact, the defendant's alleged conduct did not cause great bodily harm to __________ (name of victim) in this case.
AUTHORITY:
State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988).
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
See NCJIC 59.4 [Victim Injury].
See NCJIC 77.3.2 [Aggravated Assault: Miscellaneous Issues].
See NCJIC 253.4.12 [Consideration Of Great Bodily Injury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Law Does Not Impose Upon Anyone An Absolute Duty To Avoid An Accident
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have heard evidence concerning an accident involving __________ (name of defendant). In considering whether the defendant's conduct was criminally reckless, you must keep in mind that the law does not impose upon anyone an absolute duty to avoid an accident and the law does not contemplate that all accidents or mishaps must arise as a consequence of fault. In ________ (state e.g., Wisconsin) it is the rule of law that no one has imposed upon him the absolute duty not to injure or endanger any person.
AUTHORITY:
Millonig v. Bakken, 112 Wis. 2d 445, 452, 334 N.W.2d 80 (1983).
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Violation Of Safety Statute Does Not Necessarily Constitute Negligence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The violation of a safety statute does not necessarily constitute negligence. While you may consider whether the defendant violated a safety statute in determining whether (he/she) was negligent, you are not to presume that the defendant was negligent based simply on a violation of a safety statute. Further, you must keep in mind that in order to find the defendant guilty of negligent homicide, you must not only find that the defendant was negligent, but also that the defendant should have realized that (his/her) conduct created a substantial and unreasonable risk of death or great bodily harm.
AUTHORITY:
See State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Jury Not To Consider Evidence Of Drinking As Evidence Of Negligence Or Recklessness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering whether the defendant's conduct in operating the vehicle created an unreasonable and substantial risk of death or great bodily harm, you are not to consider (his/her) drinking of intoxicants before the accident as evidence of negligence or recklessness. The law recognizes that even intoxicated persons may operate a vehicle without doing so in a negligent manner or a manner that creates an unreasonable and substantial risk of death or great bodily harm. A person who voluntarily consumes intoxicants must use the same degree of care in the operation of a vehicle as one who has not consumed intoxicants –– no more, no less.
AUTHORITY:
State v. Wolske, 143 Wis. 2d 175, 420 N.W.2d 60, 62 (Ct. App. 1988).
RELATED SHELLOW MATERIALS:
See also generally THE SHELLOW COLLECTION: DUI.
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
See generally NCJIC Chapter 89: Drunk Driving.