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recent blog posts

Febuary 2023
Ninth Circuit updates its Model Civil Instructions
Tenth Circuit updates its § 922(g)(1) Instruction
January 2023
Jury instruction notes from Alaska and Vermont
Ninth Circuit updates its § 924(c) instruction
Vermont updates its sexual assault instructions
December 2022
California posts its 2023 CACI
November 2022
Alaska revises its contracts instructions
Unofficial Second Circuit jury instructions?
RIP litigation tools
The Seventh Circuit Criminal Jury Instructions have been updated

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Welcome to the trialdex blog. For a complete and up-to-date set of links to federal and state instructions, see the trialdex front page. To keep up with new developments, sign up for the jury instruction alerts.

 

Ninth Circuit updates its Model Civil Instructions

The Ninth Circuit updates its Civil and Criminal Model Instructions every three months. They posted the December 2022 Criminal Instructions a couple of weeks ago. As noted below, there only one instruction was changed. The new Civil Instructions went up this week, and there were a lot of changes, mostly to the Comments:

  • The Comment to Instruction 9.1 (Section 1983 Claim—Introductory Instruction) replaces a case note regarding Rawson v. Recovery Innovations, Inc., 975 F.3d 742 (9th Cir. 2020), with one discussing Wright v. Serv. Emps. Int’l Union Loc. 503, 48 F.4th 1112 (9th Cir. 2022).
  • The Comment to Instruction 9.3 (Section 1983 Claim Against Defendant in Individual Capacity—Elements and Burden of Proof) updates the note regarding Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020), with a discussion of the “integral-participant doctrine,” citing Peck v. Montoya, 51 F.4th 877, 891 (9th Cir. 2022).
  • Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) has been edited to note that, after a burden shift, the defendant's burden of proof is by a preponderance. The Comment's discussion of Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014), has been edited to reflect the Supreme Court's decision in Kennedy v. Bremerton School Dist., 142 S. Ct. 2407 (2022).
  • The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen) also adds a discussion of Kennedy.
  • Instruction 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff) has been edited to note that, after a burden shift, the defendant's burden of proof is by a preponderance.
  • The Comment to Instruction 9.19 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—Exceptions to Warrant Requirement) now notes Verdun v. City of San Diego, 51 F.4th 1033, 1049 (9th Cir. 2022) (chalking tires does not violated the Fourth Amendment).
  • Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) edits factor (5) to read "the type relationship between the need for the use of force and the amount of force used," and adds three additional factors:

    (6) the extent of the [plaintiff’s] [decedent’s] injury;
    (7) any effort made by the officer to temper or to limit the amount of force;
    (8) the severity of the security problem at issue

    The Comment has been extensively rewritten to reflect the holdings in Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021), County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), Williamson v. City of Nat’l City, 23 F.4th 1146 (9th Cir. 2022), Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015), Demarest v. City of Vallejo, 44 F.4th 1209 (9th Cir. 2022), Hyde v. City of Willcox, 23 F.4th 863 (9th Cir. 2022), Andrews v. City of Henderson, 35 F.4th 710 (9th Cir. 2022), Shafer v. County of Santa Barbara, 868 F.3d 1110 (9th Cir. 2017), Seidner v. de Vries, 39 F.4th 591 (9th Cir. 2022), Nehad v. Browder, 929 F.3d 1125 (9th Cir. 2019), Tabares v. City of Huntington Beach, 988 F.3d 1119 (9th Cir. 2021), and Zion v. County of Orange, 874 F.3d 1072 (9th Cir. 2017).
  • The Comment to Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process— Interference with Parent/Child Relationship) now has a case note regarding Peck.
  • The Comment to Instruction 9.33 (Particular Rights—Fourteenth Amendment—Due Process—Deliberate Fabrication of Evidence) now discusses Richards v. County of San Bernadino, 39 F.4th 562 (9th Cir. 2022) (standard of causation where there is deliberate fabrication).
  • The Comment to Instruction 15.19A (Expressive Works) now cites Punchbowl, Inc. v. AJ Press, LLC, 52 F.4th 1091 (9th Cir. 2022).
  • The paragraph discussing VIP Products v. Jack Daniel’s Properties, Inc., 953 F.3d 1170 (9th Cir. 2020) in the Comment to Instruction 15.30 (Trademark Dilution) has been removed.
  • The Comments to Instructions 17.10 (Copyright Interests—Authors of Collective Works) and 17.17 (Copying—Access and Substantial Similarity) now cite Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054 (9th Cir. 2022).

The prior version is archived here.

(02/03/23) (permalink)

 

Tenth Circuit updates its § 922(g)(1) Instruction

The Tenth Circuit Criminal Pattern Jury Instructions page has a new note on it: "Updated: January 30, 2023." A document compare with the former copy indicates just one change. Instruction 2.44 (POSSESSION OF A FIREARM BY A CONVICTED FELON) now has an additional element, that "the defendant knew he was convicted of a felony at the time he possessed a firearm [or ammunition]." The Comment notes that this change was occasioned by the Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).

(02/02/23) (permalink)

 

Jury instruction notes from Alaska and Vermont

Alaska has recently posted pattern jury instructions for sexual assaults committed after January 1, 2023.

On January 26, 2023, the Vermont Bar Model Criminal Jury Instructions Committee revised its the reporter’s notes for the defenses of insanity and diminished capacity to include references to State v. Webster, 2017 VT 98, ¶ 20, 206 Vt. 178 and State v. Bourgoin, 2021 VT 15, ¶¶ 25-27.

(01/27/23) (permalink)

 

Ninth Circuit updates its § 924(c) instruction

The Ninth Circuit updates its model criminal and civil instructions every three months. They just posted the "December 2022" set of criminal instuctions.

There is only one substantive change this time. The Comment to Instruction 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime) now notes that Conspiracy to commit Hobbs Act robbery is not a predicate crime of violence for a § 924(c) offense, citing United States v. Reed, 48 F.4th 1082 (9th Cir. 2022).

They will likely post the new civil instructions sometime in the next few days; I'll keep an eye on the site and post about them when they show up.

(01/21/23) (permalink)

 

Vermont updates its sexual assault instructions

On January 12, 2023, the Vermont Bar Model Criminal Jury Instructions Committee updated the sexual assault instructions and reporter’s note to reflect the Vermont legislature’s 2021 revision and reformulation of the sexual assault statutes. The revisions removed the element of “compulsion” and refined the definition of “consent,” among other changes.

The prior version is archived here.

(01/13/23) (permalink)

 

California posts its 2023 CACI

The Judicial Council of California Civil Jury Instructions has published its 2023 Edition (CACI). New and revised instructions are listed here. The prior edition is posted here.

(12/24/22) (permalink)

 

Alaska revises its contracts instructions

The Alaska Court System has thoroughly revised its Article 24 ("Contracts") jury instructions. The prior versions of these instructions are archived here.

(11/27/22) (permalink)

 

Unofficial Second Circuit jury instructions?

As most of you know, not every circuit has civil and criminal pattern jury instructions. The Sixth and Tenth Circuits have criminal, but not civil, pattern instructions. The First and Fourth Circuits have unofficial instructions that are "quasi official" in the sense that they are linked on official court Web sites. Until recently, the Second Circuit had no pattern instructions at all. All of this is explained on the federal pattern instruction list on the trialdex front page.

However, the Vermont District Court Web site recently added a Recommended Jury Instructions page with links to Civil and Criminal instructions. The Civil link goes to a 35-page PDF of civil instructions, with no cover sheet or other hint about authorship. The Criminal link is "under construction."

The trialdex federal pattern instruction list has been updated to link the new page. This should be a great resource for folks practicing in the Second Circuit, especially after the criminal instructions get posted.

(11/15/22) (permalink)

 

RIP litigation tools

Over the years I have experimented with a number of "litigation tools"; notably infographics and a federal criminal statute tracker. The number of page views they have attracted was not high enough to justify the time investment in keeping them current, so I have removed them from the site. For the curious, they are archived here.

(11/04/22) (permalink)

 

The Seventh Circuit Criminal Jury Instructions have been updated

Last year the Seventh Circuit posted "2021 Proposed Revisions/Additions" to the 2021 Seventh Circuit Criminal Jury Instructions on its Web site. Those proposed instructions appear to have now been folded into the official instructions, so that the link now reads "The William J. Bauer Pattern Criminal Jury Instructions (2022 updates)."

You can view these changes by looking at the 2021 Proposed Revisions/Additions (they appear in redline/strikeout). By the way, this link no longer appears on the Seventh Circuit site, but the file is still there.

They have also posted a set of 2022 Proposed Revisions to the Pattern Criminal Jury Instructions (once again, with the changes in redline/strikeout). The proposed changes are to:

  • 18 U.S.C. § 201(b)(1)(A) – Giving a Bribe – Elements (new instruction)
  • 18 U.S.C. § 201(b)(2)(A) – Accepting a Bribe – Elements (new instruction)
  • 18 U.S.C. § 666(a)(1)(B) – Accepting a Bribe (changes to instruction and comment)
  • 18 U.S.C. § 981(a)(1)(A) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(1) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(2) – Forfeiture Instruction (change to instruction)
  • 18 U.S.C. § 982(a)(3) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(4) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(5) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(6) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(7) – Forfeiture Instruction (changes to instruction and comment)
  • 18 U.S.C. § 982(a)(8) – Forfeiture Instruction (change to instruction)
  • 21 U.S.C. § 853 – Drug Forfeiture – Elements (changes to instruction and comment

So ... you are well advised, at a minimum, to start your trial preparation with the official instructions (which have the 2021 proposed revisions folded in), and then consult the 2022 Proposed Revisions for the instructions listed above (I assume that in most cases a trial court would be inclined to give the proposed revised instruction).

(11/01/22) (permalink)