NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions

VOLUME 5: BASIC ELEMENTS OF A CRIMINAL ALLEGATION AND DEFENSES THERETO (Chapters 43-62)

TABLE OF CONTENTS

Chapter 43: Criminal Act

43.1 Mere Association Insufficient For Criminal Liability
43.2 Criminal Intent Is Not Alone Sufficient To Convict
43.3 Power And Intent Insufficient For Criminal Liability
43.4 Factual Impossibility Precludes Conviction For Attempt
43.5 Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act

Chapter 44: Criminal Omission

44.1 Criminal Omission: General Principles
44.2 Criminal Liability For Omission Of Statutory Duties Requires Knowledge Of That Duty
44.3 Liability Based On Omission: Requires Knowledge Of Facts Which Trigger The Duty To Act
44.4 Mere Presence Or Association Insufficient To Create Duty To Act
44.5 Liability Based On Omission: Requirement That Duty Be Physically Capable of Performance
44.6 Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act
44.7 Constitutional Challenge To "Legal Duty" Element

Chapter 45: Criminal Intent

45.1 Requirement Of Criminal Intent Or Culpable Mental State
    45.1.1 Requirement Of Criminal Intent Or Culpable Mental State: General Principles
    45.1.2 Proof Of Act Without Criminal Intent Is Insufficient To Convict
    45.1.3 Presumption That Silent Statute Requires Criminal Intent
    45.1.4 Ignorance Of The Law Instruction Improper When Required To Prove Willfulness Or Intentional Violation Of A Known Legal Duty

45.2 General And Specific Intent
    45.2.1 General And Specific Intent: Purposes, Distinctions And Criticism
    45.2.2 Determining Whether Crime Includes Specific Intent
    45.2.3 Specific Intent: Knowledge As An Element
    45.2.4 Willfulness And General Intent: Requirement Of Knowing Commission Of The Acts Making The Conduct Criminal

45.3 Proof Of Intent
    45.3.1 Proof of Intent: Circumstantial Evidence Sufficient
    45.3.2 Proof Of Intent Instruction: Improper Comment On Defendant's 5th Amendment Privilege Against Self Incrimination
    45.3.3 Criminal Liability: After-Acquired Intent Insufficient

45.4 Concurrence Of Act And Intent
    45.4.1 Concurrence Of Act And Intent Or Mental State Is An Element Of The Charge
    45.4.2 Concurrence Of Act And Intent: Each Physical Element Of The Crime Must Have A Corresponding Mens Rea
    45.4.3 Concurrence Of Act And Intent: Improper To Split Act And Intent Between Codefendants

45.5 Transferred Intent
    45.5.1 Transferred Intent Allows Conviction Of Attempted Murder As To Intended Victim And Murder As To Unintended Victim Who Is Killed
    45.5.2 Death Of Intended Victim Does Not Preclude Transferring Intent To Unintended Victim    
    45.5.3 Intent To Kill Multiple Victims: Inapplicability Of Transferred Intent
    45.5.4 Transferred Intent: Applicable Only Within The Limits Of The Same Crime
    45.5.5 Transferred Intent: Improper Where Severity Of Conviction Depends On Status Of Victim
    45.5.6 Transferred Intent: Inapplicable To Inchoate Homicides

45.6 Intent: Additional Defense Theories
    45.6.1 Intent: Intoxication As Defense Theory
    45.6.2 Intent: Mental Impairment As Defense Theory
    45.6.3 Intent: Good Faith As Defense Theory
    45.6.4 Innocent Intent As Defense Theory
    45.6.5 Culture As Relevant To Intent
    45.6.6 Battered Person Syndrome As Relevant To Intent

Chapter 46: Willfulness

46.1 Willfully Defined: Knowledge Element
46.2 Willfully Defined: Intent To Violate The Law
46.3 Willfulness: Federal Circuit Model Instructions And Notes

Chapter 47: Knowledge

47.1 Objective Knowledge (Reasonable Person Standard)
    47.1.1 Knowledge: Reasonable Person Standard
    47.1.2 Knowledge: Federal Circuit Model Instructions And Notes

47.2 Subjective Knowledge/Actual Knowledge
    47.2.1 Subjective/Actual Knowledge Defined
    47.2.2 Subjective Knowledge As Mental State That May Be Negated By Mental Impairment, Intoxication, Etc.
    47.2.3 State of Mind: Knowledge vs. Intent

47.3 Constructive Knowledge
    47.3.1 Constructive Knowledge

47.4 Deliberate Ignorance/Willful Blindness
    47.4.1 Deliberate Ignorance/Willful Blindness: General Rule And Instructions
    47.4.2 Deliberate Ignorance/Willful Blindness: Mere Negligence Insufficient
    47.4.3 Deliberate Ignorance/Willful Blindness: Inapplicable To Actual Belief
    47.4.4 Deliberate Ignorance/Willful Blindness: Inapplicable To Simple Carelessness
    47.4.5 Deliberate Ignorance Willful Blindness: Requirement Of Affirmative Acts Or Steps
    47.4.6 Deliberate Ignorance/Willful Blindness: Inapplicable To Jury’s "Binary Choice" Between Actual Knowledge And Complete Innocence
    47.4.7 Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes 
    47.4.8 Deliberate Ignorance/Willful Blindness: Applicability To Two-Party Conspiracy

47.5 Knowledge: Additional Defenses
    47.5.1 Knowledge: Intoxication As Defense Theory
    47.5.2 Knowledge: Mental Impairment As Defense Theory
    47.5.3 Knowledge: Good Faith As Defense Theory
    47.5.4 Knowledge: Innocent Intent As Defense Theory
    47.5.5 Culture As Relevant To Knowledge
    47.5.6 Battered Person Syndrome As Relevant To Knowledge

Chapter 48: Objective Unreasonableness (Reasonable Person Standard)

48.1 Objective Reasonable Person Standard: General Principles
    48.1.1 Objective Reasonable Person Standard: Circumstances Known To The Person
    48.1.2 Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief
    48.1.3 Objective Reasonable Person Standard: Consideration Of Past Experiences
    48.1.4 Reasonable Person's Standard: Consideration of Defendant’s "Situation"
    48.1.5 Objective Reasonable Person Standard: "Ordinary, Prudent Man" As Inadequate Description
    48.1.6 Reasonable-Person Standard: Perfect Judgment Not Required
    48.1.7 Reasonable Person Standard: Consideration Of Circumstances from Defendant’s Perspective
    48.1.8 Reasonable Person Standard: Truth Of Belief Not Controlling; Mistaken Belief May Be Sufficient
    48.1.9 Reasonable Person Standard: Consideration Of Intoxication
    48.1.10 Subjective Fault Is More Culpable Than Objective
    48.1.11 Expert Testimony: Not Admissible Regarding Reasonable Person Standard (Objective Reasonableness)
    48.1.12 Reasonable Person Standard: Actual Subjective Belief Is Relevant To Objective Reasonableness

Chapter 49: Other Mental States

49.1 Premeditation And Deliberation
49.2 Lying In Wait

Chapter 50: Status Of Defendant

50.1 Prior Conviction Or Prison Term
    50.1.1 Exfelon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated
    50.1.2 Restoration Of Civil Rights To Possess Firearm As Defense Theory
    50.1.3 Standard Of Prejudice: Failure To Instruct On Element Of Sentencing Enhancement Or Prior Conviction
    50.1.4 Does Offer To Stipulate To Prior Conviction Remove It From The Case?
    50.1.5 Drunk Driving: Prior Conviction
    50.1.6 Escape: Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior Conviction
    50.1.7 Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior Conviction
    50.1.8 Prior Prison Term: Defense Theory That Prior Conviction Was Not Adjudicated Prior To The Current Offense
    50.1.9 Need To Define "Felony" Or "Misdemeanor"

50.2 Sex Offender
    50.2.1 Sex Offender Registration
    50.2.2 Sexually Violent Predator

Chapter 51: Identity Of Perpetrator

51.1 Identity: Miscellaneous Issues
    51.1.1 Commission Of Prior Crime By Defendant And Codefendant Not Relevant To Prove Identity
    51.1.2 Uncharged Acts: Clarifying Instruction When Lesser Standard Applies To Uncharged Offense
    51.1.3 Improper To Admit Gang Evidence To Prove Identity
    51.1.4 Consciousness Of Guilt Limited To Count On Which Defendant Challenges Identity
    51.1.5 Possession Of Recently Stolen Property: Only Applicable When Identity Of Thief Is At Issue And Not When Defense Is Claim Of Right
    51.1.6 Accomplice Liability: Guilt Of Perpetrator As Required Element

51.2 Identity: Defenses And Defense Theories
    51.2.1 Alibi
    51.2.2 Third Party Guilt
    51.2.3 Mistaken Identity By Eyewitness
    51.2.4 Good Character
    51.2.5 Reverse 404(b)
    51.2.6 Motive

51.3 Identity Defense: Relationship To Presumption Of Innocence
    51.3.1 Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That Another Person Committed The Crime
    51.3.2 Prosecution’s Duty To Disprove Identity Defense: Defendant Does Not Have To Prove That He/She Didn’t Commit Crime
    51.3.3 Rejection Or Disbelief Of Identity Defense: Prosecution Must Still Prove Every Element
    51.3.4 Rejection Or Disbelief Of Identity Defense Is Not Evidence Of Guilt
    51.3.5 Disbelief Of Identity Defense: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication
    51.3.6 Mistaken Identity: Relationship To Presumption Of Innocence

Chapter 52: Criminal Negligence

52.1 Gross Negligence/Criminal Negligence Or Recklessness: Negligent Accident Not Sufficient
52.2 Criminal Negligence: Compared To Ordinary Negligence
52.3 Gross Negligence: Objective Test
52.4 Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims

Chapter 53: Ordinary Negligence And Recklessness

53.1 Distinction Between Recklessness And Negligence
53.2 Negligence May Not Be Presumed From Violation Of Traffic Safety Statute
53.3 Recklessness: Intoxication Not A Defense
53.4 Unconstitutional To Infer Recklessness From Speeding
53.5 Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims
53.6 Failure To Secure Infant In Car Seat Is Not "Reckless" 

Chapter 54: Strict Liability

54.1 Strict Liability Limited To Public Welfare Offenses
54.2 Eighth Amendment Cruel And Unusual Punishment: Applicability To Strict Liability
54.3 Attempt To Commit A Strict Liability Offense Requires Intent To Bring About The Prescribed Result
54.4 Entrapment By Estoppel: Applicable To Strict Liability Crimes

Chapter 55: Causation

55.1 Prosecution Must Prove Causation Beyond A Reasonable Doubt
55.2 Causation: Duty To Instruct On Divergent Factual Theories
55.3 Contributory Negligence As Factor In Determining Causation
55.4 Negligent Homicide: Defendant’s Right To Instruction That Accident Was Caused By The Other Person’s Negligence
55.5 Intervening Cause Should Be Defined As Element Of The Charge Rather Than A "Defense"
55.6 Intervening Cause: Gross Negligence Or Intentional Wrongdoing Of Medical Care Personnel Negates Defendant’s Liability
55.7 Error To Define Intervening Cause In Terms Of Whether Or Not It Was "Connected With The Defendant"
55.8 Subsequent Medical Treatment As Intervening Cause When Wound Not Calculated To Cause Death
55.9 Omission Of Causation Instruction When Not At Issue To Avoid Confusion
55.10 Foreseeability: Improper To Use Terms Such As “Probable” Or “Likely”
55.11 Causation: Improper To Define As "Natural And Continuous Sequence"
55.12 The Term "Proximate" Is Unduly Confusing

Chapter 56: Possession

56.1 Possession: Miscellaneous Issues And Defenses
    56.1.1 Possession: Right To Instruction Upon Request
    56.1.2 Possession: Factors To Consider
    56.1.3 Joint Possession: Factors To Consider
    56.1.4 Possession: Intoxication As Defense To Knowledge Element
    56.1.5 Possession: Juror Unanimity
    56.1.6 Possession: Inability To Escape With The Contraband Does Not Negate Possession
    56.1.7 Possession: Duty To Define "Right To Control"
    56.1.8 Possession: Definition Of Control
    56.1.9 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid Juror Confusion
    56.1.10 Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence
    56.1.11 Possession: Admission Of Evidence Possessed By Defendant -- Requirement Of Nexus Between The Item Possessed And Charged Offense
    56.1.12 Possession: Federal Circuit Model Instructions And Notes

56.2 Possession: Sufficiency Of Proof
    56.2.1 Possession: Error To Give Instruction Without Sufficient Evidence
    56.2.2 Power And Intent Is Not Enough To Establish Criminal Liability
    56.2.3 Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object
    56.2.4 Possession: Access Alone Not Sufficient
    56.2.5 Possession: Ownership Or Occupancy Not Sufficient
    56.2.6 Possession: Joint Access Insufficient
    56.2.7 Possession: Premises Shared By More Than One Person
    56.2.8 Possession: Passenger In Vehicle Not Sufficient
    56.2.9 Improper to Presume Possession Solely from Fact That Defendant Drove The Vehicle Containing Secreted Drugs
    56.2.10 Possession: Participation In Drug Transaction Does Not Prove Possession Of Drugs Or Money Possessed By Others
    56.2.11 Possession: Agreement Or Contract To Purchase Not Sufficient
    56.2.12 Possession: Mere Presence Or Knowledge Not Sufficient
    56.2.13 Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband

56.3 Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession
        56.3.1 Temporary Or Momentary Possession
            56.3.1.1 Momentary Possession: Possession Insufficient To Establish Dominion And Control
            56.3.1.2 Momentary Possession: Defendant's Burden Of Proof Must Be Specified
            56.3.1.3 Defense Theory That Momentary Possession May Be Insufficient To Convict Even If For The Purpose Of Preventing Seizure By Law Enforcement
            56.3.1.4 Even If Defense Not Proven, Jury Must Still Consider Evidence Of Momentary Possession As To The Elements Of The Charge
            56.3.1.5 Momentary Possession Of Drugs Insufficient Without Evidence Of Assent To Transaction
            56.3.1.6 Innocent Intent Relevant Even If Not Required

        56.3.2 Innocent Possession
            56.3.2.1 Possession For The Purpose Of Lawfully Disposing Of The Contraband
            56.3.2.2 Innocent Possession: For The Purpose Of Defending Self Or Others
            56.3.2.3 Innocent Intent Relevant Even If Not Required

        56.3.3 Necessary Or Justified Possession
            56.3.3.1 Possession: Justification Or Necessity As Defense
            56.3.3.2 Necessity As Defense Theory To Possession Of Hypodermic Needles (Syringes) For Purposes Of Disposal
            56.3.3.3 Even If Defense Not Proven, Jury Must Consider Evidence Of Justified Possession As To The Elements Of The Charge
            56.3.3.4 Exfelon In Possession Of Firearm: Burden Of Proof As To Justification

        56.3.4 Unwitting Or Accidental Possession
            56.3.4.1 Unwitting Possession As Defense Theory
            56.3.4.2 Accidental Possession As Defense Theory
            56.3.4.3 Even If Defense Not Proven, Jury Must Consider Evidence Of Accidental Or Unwitting Possession As To The Elements Of The Charge

Chapter 57: Valuation

57.1 Fair Market Value: Value At Time And Locality Of Theft
57.2 Determination Of Value: Where Value Cannot Be Determined
57.3 Valuation: Exclusion Of Sales Tax
57.4 Valuation: Improper To Limit Value To "Highest Price" On The Open Market
57.5 Valuation As Jury Question
57.6 Valuation: Jury Not Bound To Accept Opinion As To Value
57.7 Valuation: Value Of Services
57.8 Valuation: Aggregation Of Multiple Larcenies Or Thefts To Obtain Single Offense For A Larger Amount
57.9 Valuation: Price Tag Inadmissible Without Foundation
57.10 Valuation For Receiving Stolen Property: Value Determined On Date Defendant Received It, Not The Date It Was Stolen
57.11 Valuation: Consideration Of Depreciation
57.12 Valuation: Theft Of Credit Card
57.13 Valuation: Consideration Of Both Retail And Wholesale Value 
57.14 Valuation: Consideration Of Illegal Market If No Legal Market Exists
57.15 Valuation: Commercial Or Written Instrument 
57.16 Valuation Of Damage: When Cost Of Repair Exceeds Market Value
57.17 Vandalism/Intentional Damage To Property: Valuation
57.18 Valuation: Face Value Of Check (Theft/Larceny)
57.19 Specific Enhancements: Sentencing Enhancements: Great Taking
57.20 Great Taking: Distinction Between Amount Taken and Amount Lost

Chapter 58: Predicate Crimes

58.1 Defense Theory That Predicate Crime Must Be Identified And Defined
58.2 Juror Unanimity As To Predicate Crimes

Chapter 59: Elements Relating To The Victim

59.1 Mental State Of Victim
    59.1.1 Victim's Mental State: Requirement That Victim Actually Be Frightened To Prove Assault
    59.1.2 Crimes Involving Victim’s Fear As Element: Fear Must Be Reasonable

59.2 Age Of Victim
    59.2.1 Defendant’s Mistake As To Age Of Victim
    59.2.2 Definitions: Over The Age Of Begins As Soon As The Person Reaches That Age

59.3 Occupational Status Of Victim
    59.3.1 Transferred Intent: Improper Where Severity Of Conviction Depends On Status Of Victim
    59.3.2 Victim As Witness

59.4 Victim Injury
    59.4.1 Comparison Of "Serious Bodily Injury" And "Great Bodily Injury"
    59.4.2 Serious Bodily Injury: Error To Omit Definition
    59.4.3 Definition Of Serious Bodily Injury: Unconsciousness May Be Considered But Is Not Determinative

59.5 Requirement That Victim Be Alive
    59.5.1 General Principles 59.5.2 Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation
    59.5.2 Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation
    59.5.3 Homicide: Requirement That Victim Be Alive At Time Of Homicidal Act
    59.5.4 Good Faith Belief That Victim Was Dead As Defense Theory

Chapter 60-62: [Reserved]