CR1401 Practitioner's Note: Explanation Concerning Homicide Elements Instructions.

Utah Code Ann. § 76-5-201 defining criminal homicide, does not now (although it once did) include the term "unlawfully," nor do any of the specific homicide sections. Utah law does not require the prosecution to negate lawful justification or excuse, unless the defense is an issue as a result of evidence presented at trial by either side. Utah Code Ann. § 76-1-502. See also State v. Knoll, 712 P.2d 211 (Utah 1985).

Jury instructions in homicide cases have sometimes included the element of “unlawfully” causing the death of the victim. “Unlawfully” means without legal justification or excuse. In some cases, the “legal justification or excuse” may constitute a complete defense, such as, for example, self-defense or insanity. In other cases, it may only constitute a partial defense, such as where extreme emotional distress, imperfect self-defense, or special mitigation are at issue. (Note that there are separate elements instructions for cases involving partial defenses.)

Consequently, the phrase "the defendant caused the death without legal justification or excuse" is bracketed in the elements instructions, indicating that it is only to be used if legal justification or excuse is at issue. A note at the end of each homicide elements instruction also recommends that practitioners tailor this element to the specific issue in the case. For example, where self-defense is at issue, the bracketed element would read, "That the defendant did not act in self-defense."

Finally, special verdicts should be used in aggravated murder cases when there are multiple aggravating circumstances alleged, in order to clearly indicate the basis for the jury’s verdict. Special verdicts are also required in murder cases in which special mitigation is at issue, pursuant to Utah Code Ann. § 76-5-205.5.

CR1402 Aggravated Murder Elements – Utah Code § 76-5-202(1).

The defendant, [NAME], is charged with Aggravated Murder. You cannot convict (him)(her) of this offense unless you find beyond a reasonable doubt, based on the evidence, each of the following elements:

1. That the defendant, [NAME];
2. Intentionally or knowingly;
3. Caused the death of [VICTIM'S NAME];
4. Under one or more of the following circumstances: [Insert All Applicable Aggravating Circumstances][;and]
5. *That the defense(s) of ________________ do(es)not apply.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY of Aggravated Murder. On the other hand, if you are not convinced that all of these elements have been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY of Aggravated Murder.

Committee Notes

If the date and/or location of a crime is an element of the offense, those can be included within the list of elements. In some circumstances, identifying the specific counts might assist the jury in sorting through offenses with overlapping elements. In those circumstances, the specific count to which the instruction applies should be identified in the first paragraph.

*See explanatory note at the beginning of the homicide section. The committee recommends that practitioners consider replacing this phrase with more specific language relating to the legal justification or excuse at issue in the case. For example, if the issue is self-defense, this element could be tailored to: "That the defendant did not act in self-defense."

Whenever imperfect self-defense is submitted to the jury:

• In addition to other applicable imperfect self-defense instructions, use CR1451 (amended as appropriate);
• Use the “Special Verdict Imperfect Self-Defense” special verdict form;
• Do not include “imperfect self-defense” as a defense in element #3 above;
• Do not use an “imperfect self-defense manslaughter” elements instruction;
• Always distinguish between “perfect self-defense” and “imperfect self-defense” throughout the instructions; and
• Add the following paragraph at the bottom of this elements instruction:
  
  

  “If you find Defendant GUILTY beyond a reasonable doubt of murder, you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self-defense is addressed in Instructions _______.”

CR1403 Aggravated Murder Elements – Utah Code § 76-5-202(2).

The defendant, [NAME], is charged with Aggravated Murder. You cannot convict (him)(her) of this offense unless you find beyond a reasonable doubt, based on the evidence, each of the following elements:

1. That the defendant, [NAME];
2. With reckless indifference to human life;
3. Caused the death of [VICTIM'S NAME]; and
4. That the defendant did so incident to an act, scheme, course of conduct, or criminal episode during which (he)(she) was a major participant in the commission or attempted commission of: [Insert All Applicable Predicate Felonies][;and]
5. *That the defense(s) of ________________ do(es)not apply.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY of Aggravated Murder. On the other hand, if you are not convinced that all of these elements have been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY of Aggravated Murder.

Committee Notes

If the date and/or location of a crime is an element of the offense, those can be included within the list of elements. In some circumstances, identifying the specific counts might assist the jury in sorting through offenses with overlapping elements. In those circumstances, the specific count to which the instruction applies should be identified in the first paragraph.

*See explanatory note at the beginning of the homicide section. The committee recommends that practitioners consider replacing this phrase with more specific language relating to the legal justification or excuse at issue in the case. For example, if the issue is self-defense, this element could be tailored to: "That the defendant did not act in self-defense."

Whenever imperfect self-defense is submitted to the jury:

• In addition to other applicable imperfect self-defense instructions, use CR1451 (amended as appropriate);
• Use the “Special Verdict Imperfect Self-Defense” special verdict form;
• Do not include “imperfect self-defense” as a defense in element #3 above;
• Do not use an “imperfect self-defense manslaughter” elements instruction;
• Always distinguish between “perfect self-defense” and “imperfect self-defense” throughout the instructions; and
• Add the following paragraph at the bottom of this elements instruction:
  
  

  “If you find Defendant GUILTY beyond a reasonable doubt of murder, you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self-defense is addressed in Instructions _______.”

CR1404 Aggravated Murder Elements When Extreme Emotional Distress Is at Issue.

The defendant, (NAME), is charged with Aggravated Murder. You cannot convict (him) (her) of this offense unless you find beyond a reasonable doubt, based on the evidence, each of the following elements:

1. That the defendant, (NAME);
2. Intentionally or knowingly;
3. Caused the death of (NAME OF VICTIM); and
4. That the defendant did so under any one or more of the following circumstances: (INSERT ALL APPLICABLE AGGRAVATING CIRCUMSTANCES HERE); and
5. That the defendant did not cause the death of the victim under the influence of extreme emotional distress for which there is a reasonable explanation or excuse.
6. *That the defense(s) of ________________ do(es)not apply.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY of Aggravated Murder. On the other hand, if you are not convinced that one or more of these elements has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY of Aggravated Murder.

Committee Notes

If the date or location of a crime is an element of the offense, those can be included within the list of elements. In some circumstances, identifying the specific counts might assist the jury in sorting through offenses with overlapping elements. In those circumstances, the specific count to which the instruction applies should be identified in the first paragraph.

*See explanatory note at the beginning of the homicide section. The committee recommends that practitioners consider replacing this phrase with more specific language relating to the legal justification or excuse at issue in the case. For example, if the issue is self-defense, this element could be tailored to: "That the defendant did not act in self-defense."

This instruction applies only to crimes committed prior to May 12, 2009. For crimes committed on May 12, 2009 and thereafter, see special mitigation instructions relating to extreme emotional distress.

CR1405 Explanation of Depraved Indifference.

A person is guilty of murder if, acting under circumstances that demonstrate a depraved indifference to human life, (he)(she) knowingly engages in conduct that creates a grave risk of death and, in fact, causes the death of another.

“Depraved indifference to human life” means an utter callousness toward the value of human life and a complete indifference as to whether the actor’s conduct will create a grave risk of death to another.

To act with “depraved indifference,” the actor must do more than act recklessly. However, (he)(she) does not have to have a conscious desire to cause death, nor does (he)(she) need to be aware that the conduct is reasonably certain to cause death.

In the context of “depraved indifference murder,” “knowingly” means that the person knew:

A “grave risk of death” means more than a substantial and unjustifiable risk; there must be a high likelihood that death will result.

In order to find depraved indifference, you must evaluate all the circumstances surrounding the death from the standpoint of a reasonable person in the actor’s position.

In evaluating the evidence, you should consider the following factors: (1) the social value of the defendant’s conduct; (2) the magnitude of the risk; (3) the defendant’s knowledge of the risk; and (4) any precautions taken by the defendant to minimize the risk.

References

CR1406 Explanation of Heinousness for Aggravated Murder Cases.

“Heinous,” “atrocious,” “cruel,” or “exceptionally depraved” refers to the physical torture, serious physical abuse, or serious bodily injury inflicted upon the deceased before death. The actor’s intent in committing these acts must be to cause wholly unnecessary suffering to the deceased, rather than simply to kill (him)(her).

CR1407 Definition of "In the Commission of" for Murder Cases.

The phrase “in the commission of” [“in the attempted commission of,” or “in the flight from the commission or attempted commission of”] (CRIME) means that there was no break in the chain of events connecting the homicide and the (CRIME).

Committee Notes

This instruction applies to the variation of murder known as the felony murder rule under Utah Code Ann. § 76-5-203(2)(d). See State v. Graham, 2006 UT 43.

CR1408 Definition of "While Committing" for Aggravated Murder Cases.

The phrase “in the commission of” [“in the attempted commission of,” or “in the flight from the commission or attempted commission of”] (CRIME) means that there was no break in the chain of events connecting the homicide with the (CRIME).

References

Committee Notes

This instruction applies to aggravated murder, under Utah Code Ann. § 76-5-202(1)(d), as long as the crime was committed before May 1, 2006, when the statute was changed to its present form (“incident to one act, scheme, course of conduct, or criminal episode. . .”). For crimes committed on May 1, 2006 or later, the instruction entitled “DEFINITION OF INCIDENT TO ONE ACT, SCHEME, COURSE OF CONDUCT, OR CRIMINAL EPISODE – AGGRAVATED MURDER” should be used rather than this instruction.

CR1409 Definition of "Incident to One Act, Scheme, Course of Conduct, or Criminal Episode" for Aggravated Murder Cases.

The phrase “incident to one act, scheme, course of conduct, or criminal episode” means that the acts constituting the homicide and the acts constituting [CRIME] are linked by time, place, manner, purpose, or a combination of the four.

Committee Notes

This instruction applies to Aggravated Murder under Utah Code Ann. § 76-5-202(1)(b),(d), and (e) and (2) Note that the statute was amended in 2006, so this instruction should only be used for cases charged under subsection (d) which occurred on or after May 1, 2006. For the instruction that applies to homicides committed prior to May 1, 2006, see the instruction entitled “‘WHILE COMMITTING’ FOR AGGRAVATED MURDER CASES.”

CR1411 Murder

(DEFENDANT’S NAME) is charged [in Count __] with committing Murder [on or about DATE]. You cannot convict (him)(her) of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME)
2. 1. [intentionally or knowingly caused the death of (VICTIM’S NAME); or]
   2. [intending to cause serious bodily injury to another, (DEFENDANT’S NAME) committed an act clearly dangerous to human life that caused the death of (VICTIM’S NAME); or]
   3. [acting under circumstances evidencing a depraved indifference to human life, (DEFENDANT’S NAME) knowingly engaged in conduct which created a grave risk of death to another and thereby caused the death of (VICTIM’S NAME); or]
   4. [while engaging in the commission, attempted commission, or immediate flight from the commission or attempted commission of [the predicate offense(s)], or as a party to [the predicate offense(s)],
      1. (VICTIM’S NAME) was killed; and
      2. (DEFENDANT’S NAME) acted with the intent required as an element of the predicate offense; or]
   5. [recklessly caused the death of (VICTIM’S NAME), a peace officer or military service member in uniform while in the commission of
      1. an assault against a peace officer;
      2. interference with a peace officer making a lawful arrest, if (DEFENDANT’S NAME) used force against a peace officer; or
      3. an assault against a military service member in uniform.]
3. [The defense of _____________________ does not apply.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Committee Notes

Whenever imperfect self-defense is submitted to the jury:

• In addition to other applicable imperfect self-defense instructions, use CR1451 (amended as appropriate);
• Use the “Special Verdict Imperfect Self-Defense” special verdict form;
• Do not include “imperfect self-defense” as a defense in element #3 above;
• Do not use an “imperfect self-defense manslaughter” elements instruction;
• Always distinguish between “perfect self-defense” and “imperfect self-defense” throughout the instructions; and
• Add the following paragraph at the bottom of this elements instruction:
  
  

  “If you find Defendant GUILTY beyond a reasonable doubt of murder, you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self-defense is addressed in Instructions _______.”

Last Revised – 04/03/2019

CR1450 Practitioner's Note: Explanation Concerning Imperfect Self-Defense

Imperfect self-defense is an affirmative defense that can reduce aggravated murder to murder, attempted aggravated murder to attempted murder, murder to manslaughter, and attempted murder to attempted manslaughter. See Utah Code Ann. § 76-5-202(4) (aggravated murder); Utah Code Ann. § 76-5-203(4) (murder).

When the defense is asserted, the State must disprove the defense beyond a reasonable doubt before the defendant can be convicted of the greater crime. If the State cannot disprove the defense beyond a reasonable doubt, the defendant can be convicted only of the lesser crime.

Instructing the jury on imperfect self-defense has proved to be problematic because many practitioners have tried to include the defense as an element of either or both of the greater crime and the reduced crime. The inevitable result is that the elements instruction on the reduced crime misstates the burden of proof on the defense as it applies to that reduced crime. See, e.g., State v. Lee, 2014 UT App 4, 318 P.3d 1164.

To avoid these problems, these instructions direct the jury to decide the defense exclusively through a special verdict form. Under this approach, the jury is given a standard elements instruction on the greater offense, with no element addressing imperfect self-defense. If the jury finds that the State has proved the elements of the greater offense beyond a reasonable doubt, the jury enters a guilty verdict on that offense. The jury is directed to the imperfect self-defense instructions and instructed that it must complete the imperfect self-defense special verdict form. On the special verdict form, the jury must indicate whether it has unanimously found that the State disproved the defense beyond a reasonable doubt. If the jury indicates the State has disproved the defense, the trial court enters a conviction for the greater crime. If the jury indicates the State has not disproved the defense, the trial court enters a conviction for the lesser crime.

The committee considered State v. Drej, 2010 UT 35, 233 P.3d 476, and concluded that it does not preclude this approach.

Committee Notes

Last revised – 05/01/2019

CR1451 Explanation of Perfect and Imperfect Self-Defense as Defenses

Perfect self-defense is a complete defense to [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder][Manslaughter]. The defendant is not required to prove that perfect self-defense applies. Rather, the State must prove beyond a reasonable doubt that perfect self-defense does not apply. The State has the burden of proof at all times. As Instruction ____ provides, for you to find the defendant guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder][Manslaughter], the State must prove beyond a reasonable doubt that perfect self-defense does not apply. Consequently, your decision regarding perfect self-defense will be reflected in the “Verdict” form for Count [#].

You must consider imperfect self-defense only if you find the defendant guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder]. Imperfect self-defense is a partial defense to [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder]. It applies when the defendant caused the death of another while incorrectly, but reasonably, believing that (his)(her) conduct was legally justified or excused. The effect of the defense is to reduce the level of the offense. The defendant is not required to prove that imperfect self-defense applies. Rather, the State must prove beyond a reasonable doubt that imperfect self-defense does not apply. The State has the burden of proof at all times. Your decision will be reflected in the special verdict form titled “Special Verdict Imperfect Self-Defense.”

References

Committee Notes

Whenever imperfect self-defense is submitted to the jury:

• In addition to other applicable imperfect self-defense instructions, use CR1451 (amended as appropriate);
• Use the “Special Verdict Imperfect Self-Defense” special verdict form;
• Do not include “imperfect self-defense” as a defense in element #3 above;
• Do not use an “imperfect self-defense manslaughter” elements instruction;
• Always distinguish between “perfect self-defense” and “imperfect self-defense” throughout the instructions; and
• Add the following paragraph at the bottom of this elements instruction:
  
  

  “If you find Defendant GUILTY beyond a reasonable doubt of murder, you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self-defense is addressed in Instructions _______.”

Last Revised – 04/03/2019

CR1452 Special Verdict Form - Imperfect Self-Defense

If you determine beyond a reasonable doubt that (DEFENDANT'S NAME) committed [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder], you must complete the special verdict form titled “Special Verdict Imperfect Self-Defense.”

• Check ONLY ONE box on the form.
• The foreperson MUST sign the special verdict form.

References

Committee Notes

Whenever imperfect self-defense is submitted to the jury:

• In addition to other applicable imperfect self-defense instructions, use CR1451 (amended as appropriate);
• Use the “Special Verdict Imperfect Self-Defense” special verdict form;
• Do not include “imperfect self-defense” as a defense in element #3 above;
• Do not use an “imperfect self-defense manslaughter” elements instruction;
• Always distinguish between “perfect self-defense” and “imperfect self-defense” throughout the instructions; and
• Add the following paragraph at the bottom of this elements instruction:
  
  

  “If you find Defendant GUILTY beyond a reasonable doubt of murder, you must decide whether the defense of imperfect self-defense applies and complete the special verdict form concerning that defense. Imperfect self-defense is addressed in Instructions _______.”

Use Special Verdict Form SVF1450 in connection with this instruction.

Last Revised – 04/03/2019