PATTERN JURY INSTRUCTION COMMISSION
OCTOBER 1998 MEETING
The Pattern Jury Instruction Commission met October 1, 1998, at the Heritage Center, State Capitol, in Bismarck, from 9 am to 5 pm..
MEMBERS PRESENT: B. Blazer, K. Brust, J. Hagerty, J. McClintock, J. McLees, S. Plambeck, J. Rustad, J. Simonson, D. Vogel, J. Vukelic
MEMBERS ABSENT: S. Lian
GENERAL BUSINESS
Chair Judge Vukelic called the meeting to order. Law Clerk Krista Hummel was introduced. The Chair announced that Steven Lian, who could not attend due to a court-ordered mediation out of state, has been appointed to a new term on the commission.
Minutes. Minutes of the June 1998 meeting were reviewed.
Motion to approve: J. McLees
Second: J. Rustad
Approved
Financial Report. PJIC has $12,516 remaining in the budget for the last ten months of the biennium.. During the first 14 months, PJIC spent $10,484. The Heritage Center will be charging $25 per day for meetings held there. This expense was approved.
Interim Activities.
1. Mark Stenehjem submitted his resignation. He expressed appreciation to the members for their work and hopes to be able to serve again in the future. Dann Greenwood, SBAND president, has been asked to appoint a new member for the commission.
2. A list of instructions ready to be published was sent to the Gavel. Minutes of the June meeting with handouts were sent to members not in attendance.
3. Professor Ahlen , UND School of Law, and Professor Peters, Department of Psychology, will be collecting feedback from mock juries participating in the Trial Ad classes at the law school this fall. Instructions selected for review were Presumption, Proximate Cause, and Burden of Proof.
4. The Gender Fairness Committee was informed that their comments on the Sympathy, Prejudice, Emotion instruction were reviewed at the June meeting.
5. Robert Kehoe, Jr., an attorney in Chicago, IL, received permission from SBAND to include the North Dakota contract instructions in his book, Jury Instructions for Contract Cases, published by Comerford and Boyd.
6. Larry Burd, Ph.D., a member of the clinical faculty at UND, was asked about research comparing comprehension after hearing instructions versus hearing and reading instructions.
7. Keithe Nelson was approached about purchasing a copy of Premise for PJIC. . Because the monthly fee is $79, the staff attorney received permission to use the copy available at the Grand Forks County Courthouse instead, and a copy will be available at the meetings. The status of the staff attorney as independent contractor will be emphasized in a new contract beginning at the end of October. The salary for the attorney will be $670 per month with a travel allowance.
8. The June minutes were sent to the Supreme Court website along with the instructions that had been approved for publication. In the future, instructions that have received final approval will not be posted because SBAND raises money from their publication.
9. The SBAND staff is retyping the jury instructions with gender/spelling changes. Renumbering the instructions was discussed. J. Simonson suggested providing a parallel table of old and corresponding new numbers if the system is modified. B. Blazer noted that the decimal system is conducive to expansion. That some of the sections did not seem to have coherent organization was discussed. The staff attorney will develop a numbering system with input from B. Blazer and J. McClintock.
INSTRUCTIONS
Sympathy, Prejudice, Emotion (PJI 1706 and PJI 2120). This instruction had been scheduled for final approval in June but a new draft was created after receiving comments from the Gender Fairness Implementation Committee suggesting deletion of the word "prejudice". B. Blazer noted that "Prejudice" is still in the title. D. Vogel and J. McClintock did not consider it to be a problem in the title--it gives a guideline. Whether "bias" should be in the instruction was discussed. At the March meeting, the commission had contrasted prejudice and bias, concluding that one is prejudiced against but biased for. With "bias" in, a motion was made to approve the instruction (B. Blazer/J. Simonson). After further discussion, the title was changed to "Fair Treatment Under the Law." The bracket for corporations was deleted with the understanding that there is a separate instruction for corporations. The original motion was withdrawn.
Motion to approve: J. McClintock
Second : D. Vogel
Approved
Definition--Severe Emotional Distress (PJI 651). J. Simonson noted that this instruction was approved in 1997 but has been revisited at each meeting since. Discussions had focused on the word "transitory." The Restatement, section 46, comment j was briefly reviewed.
Motion to approve: B. Blazer
Second: J. McLees
Approved
Note Taking by Jurors. J. Vukelic presented a draft of an instruction about note taking by jurors. The North Dakota Rules of Court, Rule 6.7, was reviewed and added as a cite. Whether the jurors should be told to put their name on the notes was discussed. It was decided that this is up to the individual court. NDCC 28-14-17, the statute regarding papers the jurors may take with them was adopted in 1943. The commission changed the statement that "recollection is not more reliable than collective memory" to "recollection is probably more reliable."
Motion to approve: B. Blazer
Second: J. McClintock
Approved
Instruction References. Judge Vukelic presented a draft concerning the use of accurate pronouns in instructions. The instruction was shortened and a comment noting that ideally this instruction should not be necessary was removed.
Motion to approve: D. Vogel
Second: B. Blazer
Approved
Assault and Battery. In March, the commission discussed a letter from Judge Schmalenberger in which he noted that the North Dakota instruction for civil assault is based on the criminal statute for aggravated assault. Judge McClintock had been asked to draft separate instructions for assault and battery in civil cases. The Assault instruction cited Binstock v. Fort Yates Pub. School Dist. as the basis of the definition. The distinction between assault and battery was discussed. That battery does not need contact was noted. How will the jury distinguish the two? Usually both are pled. Whether an instruction on battery was necessary was discussed. The cite for a battery instruction is a court of appeals case, Wishnatsky v. Huey and the Restatement.
Motion to approve Assault: K. Brust
Second: D. Vogel
Approved
D. Vogel suggested that the Battery instruction have a reference to the Assault instruction. The statement that the contact in a battery must be unwarranted by the social usages prevalent at the time and place was discussed with B. Blazer noting that this creates a situational standard. Different environments could provide a defense in some instances, e.g., sexual harassment. After reviewing the Restatement, the time and place reference was left in. S. Plambeck suggested that the battery case could be covered under the comparative fault act. It usually won't be a single claim. Should the "intentional" requirement be a separate element with proximate cause and injury as elements? J. Hagerty believe that the second element, "a harmful or offensive contact with the other person directly or indirectly results," covers proximate cause.
Motion to approve Battery: J. Simonson
Second: J. McLees
Approved
Gross Sexual Imposition (PJI 2302). Judge Simonson inserted "controlled substance" in the body of the instructions and in the essential elements to reflect the August 1997 amendment of the statute. The third element was bracketed and is to be used if a Class A Felony is charged. The source for the third element is NDCC 12.1-20-03(b).
Motion to approve Battery: J. Simonson
Second: J. McClintock
Approved
Solicitation (PJI 2308). J. Simonson reported that there has been no change in the law so the instruction was not modified.
Sexual Assault (PJI 2321, 2322, 2323, 2324 and 2325)(Impaired Power to Resist , (Offensive Contact), (Mental Disease or Defect), (Persons in Custody or Institutionalized), (Minor Victim 15 Years of Age or Older). Judge McLees reviewed these instructions. The spousal defense was removed. Judge McLees suggested using [Month][Day][Year] rather than 19__ as currently done with the year 2000 approaching. In the Impaired Power to Resist instruction a person may be guilty or "someone with that person's knowledge" may be guilty. The phrase "or someone with that person's knowledge was bracketed as this would be a rare situation.
Motion to approve: B. Blazer
Second: J. Simonson
Approved
Terrorizing (PJI 2420 and 2421). Judge Vukelic reviewed Terrorizing. The former instruction had required sustained fear whereas the law states only fear, so sustained was removed. The elements were itemized. Using the [Month][Day][Year] brackets was added. Terrorizing 2420 (false information) was made an optional element in 2421 rather than a separate instruction.
Motion to approve: J. McClintock
Second: J. McLees
Further discussion was held regarding whether it was necessary to add "falsely" in the following: Falsely informed another . . . knowing the information was false. The Chair called for a vote. Five voted "falsely" out; three in.
Approved without adding "falsely"
Causation (PJI 2088). Judge Vukelic compared the instruction with NDCC 12.1-02-05. The statute states that not only must the concurrent cause be clearly sufficient to produce the result but that the conduct of the accused must also be clearly insufficient. This concurrent requirement was added to the instruction. .
Motion to approve: B. Blazer
Second: K. Brust
Approved
Chemical Test (PJI 2942 and 2943): "Blood," "breath," "saliva" and "urine" were added in brackets.
Motion to approve PJI 2942: J. Simonson
Second: B. Blazer
Approved
Motion to approve PJI 2943: B. Blazer
Second: S. Plambeck
Approved
Special Verdict Forms. S. Plambeck, K. Brust and D. Vogel had presented information on special verdict forms with proposed instructions. S. Plambeck discussed that there is now only a single cause of action--fault. Currently there are jury instructions defining "ordinary" negligence and strict liability. Calling it "ordinary" has made it more confusing. It is helpful to tell the jury that they will have to fill out a special verdict form, that the jury is required to allocate fault on a percentage basis. It is up to the judge to apply the law with the given percentages. The jury is allocating factually. There is disagreement on whether to tell the jury that it is comparative fault up front and later to specifically define the terms. Proposed Instruction No. 2 defined Comparative Fault. It is suggested that it be appropriate as an introductory instruction.
Motion to use as an introductory instruction: J. Simonson
Second: J. McLees
Further discussion concerned whether to use the term "money damages" or just "damages." Three voted to have it in; the remainder voted out. "Money" is out. Whether the sentence requiring the jury to allocate fault was repetitive with the last sentence in paragraph two was reviewed. The paragraphs were combined and shortened. It was decided to use the word "you" instead of "the jury."
Motion to approve: K. Brust
Second: J. Rustad
Approved (J. Simonson dissenting)
Proposed instruction 2A concerned whether one should tell the jury the effect of the percentages. It is an open question. If there is an instruction, this is the place for it, but is it desirable to bring it up? There is no legislative or judicial direction. There is no authority for 2A but it would be helpful. Instruction 3 defines "fault." Further work on these was tabled until March.
ADMINISTRATIVE DETAILS
March Meeting. The March meeting will be March 4 and 5, 1999 at the Heritage Center in Bismarck.
Assignments.
Responsibility for Joint Conduct (PJI 145)--J. McClintock
Fault/Special Verdict--S. Plambeck, D. Vogel, K. Brust
Insurance-Bad Faith--B. Blazer
Modifying the DUI verdict form (adding DUS in the alternative)--J. Simonson, J. McLees
Check new civil laws for possible revisions--staff attorney
Motion to adjourn: J. Hagerty
Second: J. McLees
Approved
Respectfully submitted,
__________________________
Lynn A. Kerbeshian, Staff Attorney
2812 B 17th Avenue So.
Grand Forks, ND 58201
(701) 772-0159
e-mail: jkerbesh@medicine.nodak.edu