Professional Documents
Culture Documents
Model Jury Instructions On Homicide April 2018
Model Jury Instructions On Homicide April 2018
I. Criminal Responsibility. . . . . . . . . . . . . . . . . .1
A. Self-Defense. . . . . . . . . . . . . . . . . . . . 21
B. Defense of Another. . . . . . . . . . . . . . . . . 36
IX. Appendix
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CRIMINAL RESPONSIBILITY
the crime and whether the only live issue for the jury to decide
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doubt that the defendant committed the crime with which he4 is
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reasonable doubt that any mental disease or defect that may have
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illegal or wrong.11
of proof, you may consider all the evidence that has been
after the crime. You may consider the opinions of any experts
who testified, and give those opinions whatever weight you think
they deserve.12
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conduct.14
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his past experience with drugs or alcohol. But you must keep in
alcohol or drugs and the alcohol or drug use made the symptoms
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drugs. That is true even if he did use alcohol or drugs and the
defect worse.17
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responsible at the time the crime was committed, that is, that
should have known] that the consumption would have the effect of
intensifying or exacerbating his mental condition; and, in
contrast, (2) if the defendant's mental illness did reach the
level of lack of criminal responsibility even in the absence of
his consumption of drugs, it was irrelevant whether he took
drugs knowing that they would exacerbate that condition"
[emphasis in original]); Commonwealth v. Berry, 457 Mass. at
616-618 ("defense of lack of criminal responsibility is not
defeated where the defendant also consumed alcohol or drugs, as
long as the mental disease or defect was the cause of the lack
of criminal responsibility . . . . Where a defendant has an
active mental disease or defect that caused her to lose the
substantial capacity to appreciate the wrongfulness of her
conduct or the substantial capacity to conform her conduct to
the requirements of the law, the defendant's consumption of
alcohol or another drug cannot preclude the defense of lack of
criminal responsibility").
18 This paragraph and the factors that follow are taken from
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defense objection.20]
based solely on the evidence and the law of this case. In any
then the court will grant the petition and commit the defendant
months and every year thereafter, the court reviews the order of
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and dangerous, the court will order him discharged from the
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JOINT VENTURE
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during the crime with the intent of making the crime succeed.27
confusion], he had the intent required for that crime.28 You are
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intent.30
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that the defendant simply was present when the crime was
crime, and that he had or shared the intent to kill, the intent
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would result.35
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following instruction.38]
timely only if: (1) the defendant withdraws from the planned
crime before the commission of the crime has begun; (2) the
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reasonably be stopped.42
instruction.43]
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offense, but then may withdraw from any later planned crime,
44 Id.
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A. SELF-DEFENSE
defendant was unarmed and the victim was the first to use deadly
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Maguire, 375 Mass. 768, 773 (1978) ("it has been held that the
right to claim self-defense may be forfeited by one who commits
an armed robbery, even if excessive force is used by the
intended victim"). The rationale for this rule is that the
nature of the underlying felony marks the defendant as the
"initiating and dangerous aggressor." Commonwealth v. Rogers,
459 Mass. at 260, quoting Commonwealth v. Garner, 59 Mass. App.
Ct. 350, 363 n.14 (2003). However, a self-defense instruction
might be appropriate where the killing occurred during the
defendant's escape or attempted escape, see Commonwealth v.
Rogers, 459 Mass. at 260-261, or where the defendant was unarmed
and the victim was the first to use deadly force. See
Commonwealth v. Chambers, 465 Mass. 520, 530 (2013) ("critical
question in determining whether the Commonwealth proved that the
defendant did not act in self-defense when he killed the victim
was who first grabbed the kitchen knife that ultimately was the
instrument of death, not who shouted first or who struck the
first punch"). See generally Commonwealth v. Chambers, 465
Mass. at 528 ("in the context of homicide, a defendant may lose
the right to claim self-defense only if he was the first to use
or threaten deadly force").
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reasonable doubt that the defendant did not act in proper self-
defense.50 The defendant does not have the burden to prove that
prove beyond a reasonable doubt that the defendant did not act
guilty.51
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reasonable doubt:56
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bodily harm.58
deadly force, and did not withdraw in good faith from the
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end the confrontation without any use of, or additional use of,
force.62
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deadly force.64
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death or serious bodily harm, you may consider any or all of the
following:
the defendant;67
such threats.69
Edmonds, 365 Mass. 496, 502 (1974). Where a defendant has been
the victim of abuse, evidence of abuse and expert testimony
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dwelling.75
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used, the scope of the threat presented, or any other factor you
good faith from the conflict and announce to the person (or
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additional force.80
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together with the deceased] was the first to use deadly force,
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that the force used by the defendant in killing the victim was
used.83]
but are convinced that he used some force, then you must
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force.85
B. DEFENSE OF ANOTHER
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and the third person were unarmed and the victim was the first
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generally instruct the jury that this instruction does not apply
felony-murder.90
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himself.]
the defendant did not act in proper defense of another, then you
doubt:92
from which the other person could save himself only by using
deadly force. You need not determine whether the other person
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defendant would not have believed that the other person was in
other person could save himself only by using deadly force. You
defendant would not have believed that the other person was
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that the force used by the defendant in killing the victim was
force used.96]
had reasonable grounds to believe (1) that the other person was
save himself only by using non-deadly force, and (2) that the
himself, then the defendant had the right to use whatever non-
harm, but he could use no more force than was reasonable and
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first degree and murder in the second degree. If you find the
murder.
deliberating jurors must agree that the Commonwealth has met its
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unanimously.
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reflection.
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occurred.100
cause separate from the defendant's conduct, you may not find
the victim.102
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the law. For example, if I aim and fire a gun at one person
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drugs. A defendant may form the required intent and act with
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these elements.109
another] The next element is that the defendant did not act in
another.
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mitigating circumstances.
another.
manslaughter.]
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or not you find that the Commonwealth has proved murder in the
[victim's name]; or
would result.
cruelty.
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occurred.111
name]; or
result.
a reasonable doubt.112
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deliberate premeditation.
analyze this third prong. You must first determine whether the
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cause separate from the defendant's conduct, you may not find
the law. For example, if I aim and fire a gun at one person
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plain and strong likelihood that death would result, you may
alcohol or drugs.117
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the victim.121
following factors:122
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deceased;124
and
123 See, e.g., Commonwealth v. Roy, 464 Mass. 818, 825 (2013)
(defendant mimicked victim's pleading while describing how he
"choked her out"); Commonwealth v. Anderson, 445 Mass. 195, 202
(2005) (defendant bragged about brutal murder after crime);
Commonwealth v. Sok, 439 Mass. at 431.
124 See, e.g., Commonwealth v. Linton, 456 Mass. at 546–547
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listed.130
129 See, e.g., Commonwealth v. Moses, 436 Mass. 598, 601 (2002)
(after victim raised arms in act of surrender, defendant shot at
victim seven times, hitting him four times; two wounds were
potentially fatal).
130 See Commonwealth v. Akara, 465 Mass. at 259-260, quoting
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cruelty.131
another] The fourth element is that the defendant did not act
have already instructed you about when a person properly may act
first degree.
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felony.134,135
4. The defendant:
Mass. at 471.
135 Previously, it was described as an element of felony-murder,
both in the first and second degrees, that the killing must have
been a "natural and probable consequence" of the felony. See,
e.g., Commonwealth v. Matchett, 386 Mass. 492, 505 (1982).
Since 1999, however, the Supreme Judicial Court has recommended
that the language not be used "as it is superfluous to the other
elements of felony-murder." Commonwealth v. Rolon, 438 Mass.
808, 818 n.11 (2003). See Model Jury Instructions on Homicide
at 67-68 n.8 (1999).
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[victim's name]; or
would result.136
defendant was unarmed and the victim was the first to use deadly
force.137]
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imprisonment.]
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141 See Commonwealth v. Wade, 428 Mass. 147, 152 (1998) ("[T]he
intent to commit the rape, not the intent to inflict serious
bodily harm, was the substitute for the malice requirement of
murder").
142 See Commonwealth v. Oberle, 476 Mass. 539, 548 (2017)("[T]he
The merger doctrine does not apply "where the predicate felony
has an intent or purpose separate and distinct from the act
causing physical injury or death." Morin, supra at 431. Thus,
the felony of armed robbery may serve as the underlying felony
for felony-murder and is not barred by the merger doctrine
because stealing or taking the property of another is an element
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felony may not be the same act that caused the victim's death.144
separate and distinct from the violent act that resulted in the
of these separate and distinct acts. [If there was more than
one separate and distinct act that may satisfy an element of the
you unanimously find the Commonwealth has proved the same act
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The third element is that the act that caused the death
that the act that caused the death occurred during the
name]; or
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result.
a reasonable doubt.152
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deliberate premeditation.
analyze this third prong. You must first determine whether the
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plain and strong likelihood that death would result, you may
alcohol or drugs.155
another] The fifth element is that the defendant did not act in
manslaughter.
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2. The defendant:
[victim's name]; or
would result.157
156 Commonwealth v. Berry, 466 Mass. 763, 772 n.16 (2014) ("[t]he
intent necessary to be proved for a conviction of murder in the
first degree committed with extreme atrocity or cruelty, defined
by three alternate prongs, is the same as the intent necessary
for murder in the second degree").
157 See Commonwealth v. Earle, 458 Mass. 341, 346-347 & n.9, 350
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proof for murder in the second degree are the same as for murder
without the element that the killing was committed with extreme
atrocity or cruelty.
murder in the first degree with extreme atrocity, the judge must
second degree that are set forth in the instructions for murder
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you must not find the defendant guilty of murder, but you shall
circumstance(s).
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and would not have cooled off by the time of the killing, and
that the defendant himself was so provoked and did not cool off
and the killing.163 The killing must occur after the provocation
and before there is sufficient time for the emotion to cool, and
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the Commonwealth has not proved that the defendant committed the
crime of murder.
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reasonable doubt that the defendant did not act in the proper
another].173
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used, the scope of the threat presented, or any other factor you
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reasonable doubt that the defendant did not act in the proper
has proved the other required elements, you shall find the
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INVOLUNTARY MANSLAUGHTER
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judge must instruct the jury that they can find the defendant
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CONDUCT 181
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victim's death;185
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death.189
832 ("reckless conduct does not require that the actor intend
the specific result of his or her conduct, but only that he or
she intended to do the reckless act"); Commonwealth v. Walker,
442 Mass. at 192-193.
190 Commonwealth v. Welansky, 316 Mass. at 396-397.
191 Commonwealth v. Earle, 458 Mass. at 347, quoting Commonwealth
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another] The fourth element is that the defendant did not act
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death;204
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reckless.206
between the defendant and the victim that gave rise to a duty of
question of fact for the jury although the duty arising from a
relationship is a matter of law. See, e.g., Commonwealth v.
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had this relationship with the victim, then you shall find that
832 ("[R]eckless conduct does not require that the actor intend
the specific result of his or her conduct, but only that he or
she intended to do the reckless act").
213 Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at
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the jury correctly when he said . . . '[i]f the grave danger was
in fact realized by the defendant, his subsequent voluntary act
or omission which caused the harm amounts to wanton or reckless
conduct, no matter whether the ordinary man would have realized
the gravity of the danger or not. But even if a particular
defendant is so stupid [or] so heedless . . . that in fact he
did not realize the grave danger, he cannot escape the
imputation of wanton or reckless conduct . . . if an ordinary
man under the same circumstances would have realized the gravity
of the danger'").
219 Commonwealth v. Welansky, 316 Mass. at 398 ("judge charged
the jury correctly when he said . . . '[i]f the grave danger was
in fact realized by the defendant, his subsequent voluntary act
or omission which caused the harm amounts to wanton or reckless
conduct, no matter whether the ordinary man would have realized
the gravity of the danger or not'"); Commonwealth v. Levesque,
436 Mass. at 451 ("Whether a defendant has satisfied this duty
will depend on the circumstances of the particular case and the
steps that the defendant can reasonably be expected to take to
minimize the risk").
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term.
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should have known that the battery endangered human life in that
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another] The fourth element is that the defendant did not act
have already instructed you about when a person properly may act
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SUPPLEMENTAL INSTRUCTIONS
evidence.
B. Definition of Death.
functions.234
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homicide.235
the nature of the dangerous weapon used and the manner of its
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the type of dangerous weapon and the manner in which it was used
instruction where the nature of the weapon and the manner of its
further clarify some areas of the law for you. These new
together as a whole.237
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Degree.
in the first degree, and not, for instance, when they simply
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the first degree does not mean that you are a hung jury. If,
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a. intended to kill; or
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4. [Where there is evidence of self-defense or
defense of another] The defendant did not act in
proper self-defense or in the proper defense of
another.
C. Felony-Murder
a. intended to kill; or
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II. MURDER IN THE SECOND DEGREE
A. Murder
a. intended to kill; or
a. intended to kill; or
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3. [Where there is evidence of self-defense or
defense of another] The defendant did not act in
proper self-defense or in the proper defense
of another.
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3. The defendant intentionally failed to act.
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