The following instructions explain the various burdens of proof that may be applicable in a criminal trial.<\/p>\n
CR04-021.\u00a0 Proof of Essential Elements<\/a>\u00a0(06\/02\/03).\u00a0 This instruction, or one like it, is appropriately included after the substantive instructions on the elements of the charge.\u00a0 The court must instruct the jury that one of the possible verdicts is that the defendant is not guilty of any crime.\u00a0 See State v. Camley<\/span>, 140 Vt. 483 (1981) (plain error found where judge failed to list a general not guilty verdict along with the other possibilities).<\/p>\n CR04-041.\u00a0 Separate Counts<\/a>\u00a0(07\/28\/03).\u00a0\u00a0In a complicated case, this instruction may help to emphasize that multiple counts must be considered separately.\u00a0 In most cases, it will help to tailor the instruction to the circumstances.<\/p>\n CR04-051.\u00a0 Multiple Defendants<\/a>\u00a0(09\/18\/20).\u00a0\u00a0This instruction, which derives from the jury instructions given in State v. White<\/u>, Nos. 661\/662-6-16 Rdcr (Zonay, J.), aims to prevent guilt by association in cases involving more than one defendant. The bracketed language applies when there is evidence admitted against one defendant but not the other.<\/p>\n CR04-061.\u00a0 Presumption of Innocence<\/a> (01\/10\/05).\u00a0 The Vermont Supreme Court discussed the presumption of innocence in State v. Duff<\/u>, 150 Vt. 329 (1988), and clarified the doctrine in State v. Powell<\/u>, 158 Vt. 280 (1992).\u00a0 The presumption of innocence is a piece of evidence which the jury should consider in the defendant\u2019s favor.\u00a0 It works in two ways, as a presumption with regard to each essential element, and as a presumption with regard to the degree of offense.\u00a0 However, \u201c[a]s long as a court specifically instructs the jury as to each offense charged that it must not convict unless it is convinced of the defendant\u2019s guilt beyond a reasonable doubt, the \u2018reasonable doubt between offenses\u2019 instruction is not required.\u201d\u00a0 Id<\/u>. at 286.\u00a0 While the trial court should instruct on the presumption of innocence both preliminarily and in its final instructions, the failure to repeat this instruction as part of the final instructions by itself does not necessarily constitute reversible error. See<\/em> State v. Redmond<\/u>, 2020 VT 36, \u00b6\u00b6 41\u201349, 212 Vt. 242.\u00a0<\/em><\/p>\n CR04-081.\u00a0 Unanimous Verdict<\/a>\u00a0(07\/25\/02).\u00a0\u00a0This instruction addresses a potential problem with jury unanimity.\u00a0 The problem may appear in various forms.\u00a0 For examples, see Woodmansee v. Stoneman<\/span>, 133 Vt. 449 (1975), where the jury was presented with two separate theories of accomplice liability, and State v. Couture<\/span>, 146 Vt. 268 (1985), where the jury was told it could convict the defendant of kidnapping, for confining any one of five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element that the defendant had confined a particular person.<\/p>\n The problem appeared again when the State introduced evidence of three separate sexual acts in support of one count of sexual assault.\u00a0 State v. Martel<\/span>, 164 Vt. 501 (1995).\u00a0 The court instructed the jury that each juror had to agree as to which of the three sexual acts constituted the \u201csexual act\u201d element of the crime, and that they would have to look to the evidence of that individual act in order to convict.\u00a0 The defendant was convicted of sexual assault, and the Supreme Court affirmed, noting that the instruction eliminated much of the potential prejudice that had existed because of the absence of an election.\u00a0 Id<\/span>. at 504.<\/p>\n The instruction on jury unanimity, CR04-081, represents an attempt to deal with the Couture<\/span> problem by giving an instruction.\u00a0 It is still preferable for the State to make an election.\u00a0 If the instruction is used, it should be tailored to fit the circumstances of the case.<\/p>\n The instructions on accomplice liability, CR09-301 and -305, comply with the constitutional requirement of jury unanimity.\u00a0 The State may prove that the defendant committed the crime either<\/em> as an accomplice or<\/em> as the principal actor.\u00a0 State v. Green<\/span>, 2006 VT 64, 180 Vt. 544.\u00a0 The jury must still reach a unanimous verdict on the essential elements of the crime.\u00a0 <\/em><\/p>\n For further, more recent discussion of juror unanimity instructions, see State v. Nicholas<\/u>, 2016 VT 92, \u00b6\u00b6 25, 28 n.6, 203 Vt. 1; State v. Albarelli<\/u>, 2016 VT 119, \u00b6\u00b6 25-30, 203 Vt. 551; State v. Robitille<\/u>, 2019 VT 36, \u00b6\u00b6 47\u201350, 210 Vt. 202; State v. Redmond<\/u>, 2020 VT 36, \u00b6\u00b6 25\u201334, 40, 212 Vt. 242; State v. Blanchard<\/u>, 2021 VT 13, \u00b6 34, 214 Vt. 225; State v. Phillips<\/u>, 2024 VT 10, \u00b6 16.<\/p>\n CR04-101.\u00a0 Proof Beyond\u00a0a Reasonable Doubt<\/a> (05\/25\/05).\u00a0 In a criminal case, the state must prove each of the essential elements of the offense beyond a reasonable doubt.\u00a0 State v. Derouchie<\/u>, 140 Vt. 437, 442 (1981) (citing In re Winship<\/u>, 397 U.S. 358, 364 (1970)).\u00a0 When describing the standard of proof beyond a reasonable doubt, brevity is a virtue.\u00a0 State v. Francis<\/u>, 151 Vt. 296 (1989).\u00a0 Unless there is a request for elaboration, the instruction should be brief, and the words will carry their plain meaning.\u00a0 State v. McMahon<\/u>, 158 Vt. 640 (1992); see also<\/em> State v. Redmond<\/u>, 2020 VT 36, \u00b6 39, 212 Vt. 242 (\u201cwe have recognized that \u2018attempting to define reasonable doubt is a hazardous undertaking,\u2019 and we \u2018discourage trial judges from trying such an explanation.\u2019\u201d) (quoting State v. Levitt<\/u>, 2016 VT 60, \u00b6 14, 202 Vt. 193).\u00a0 The jury\u2019s role is to determine whether the state has proven the charge beyond a reasonable doubt.\u00a0 The instruction tells the jury that, if the jury has a reasonable doubt, then it must find the defendant not guilty even if it thinks that the charge is probably true.\u00a0 State v. Giroux<\/u>, 151 Vt. 361, 365 (1989).<\/p>\n In 2005, the committee modified its instruction in two ways: First, the instruction was redrafted to avoid using the phrase \u201c(Def)__________\u2019s guilt,\u201d which might suggest that he or she is in fact guilty.\u00a0 Second, it was simplified by eliminating the word \u201creal\u201d from the sentence that begins, \u201cA reasonable doubt is a real doubt based on reason . . .\u201d\u00a0 This change responds to a suggestion in State v. Carr<\/u>, No. 2004-304 (Vt. April 2005) (unpub. mem.).\u00a0 The Court approved the instruction on reasonable doubt, but suggested that it would be better to avoid using the word \u201creal.\u201d<\/p>\n The last sentence of the instruction states that if the jury is convinced of the defendant\u2019s guilt beyond a reasonable doubt, then it must<\/u> find the defendant guilty.\u00a0 The committee rejected suggestions that the jury be told it should<\/u> find the defendant guilty, or that it may<\/u> find the defendant guilty.\u00a0 Vermont follows the majority rule that jurors are not given instructions on jury nullification.\u00a0 State v. Findlay<\/u>, 171 Vt. 594 (2000).\u00a0 Jurors are told that they must apply the law as it is given to them in the instructions.<\/p>\n There may be circumstances where the jury should acquit even where the state has proven the essential elements beyond a reasonable doubt, such as where the defendant proves the elements of an affirmative defense.\u00a0 That issue is dealt with in the instructions concerning the affirmative defense.\u00a0 The jury will be told that if the defendant proves the elements of an affirmative defense by a preponderance of the evidence, then the jury must find the defendant not guilty.\u00a0<\/em>\u00a0<\/em><\/p>\n CR04-121.\u00a0 Proof by a Preponderance of the Evidence<\/a>\u00a0(07\/29\/05).\u00a0 This instruction applies to issues that are to be decided by a preponderance of the evidence.\u00a0 In most cases, it should suffice to instruct that proof by a preponderance of the evidence means that the defense is more likely true than not true, and that this burden of proof is less than the burden of proof beyond a reasonable doubt.\u00a0 The instruction also includes a paragraph analogizing this burden to a balance scale, for use when the judge believes the analogy would help with the explanation.<\/p>\n CR04-151.\u00a0 Burden of Proof on Self-Defense<\/a>\u00a0(06\/09\/03).\u00a0 \u201cOnce evidence raising the issue of self-defense appears in the case, the burden is on the State to prove, beyond a reasonable doubt, that appellant\u2019s actions were not in self-defense.\u201d\u00a0 State v. Bartlett<\/span>, 136 Vt. 142, 144 (1978) (assault context).\u00a0 In a homicide case, the State\u2019s burden of proving that the killing was unlawful may also require proof beyond a reasonable doubt that the defendant did not act in self-defense.\u00a0 State v. Rounds<\/span>, 104 Vt. 442, 450-51 (1932).<\/p>\n CR04-201.\u00a0 Burden of Proof on Affirmative Defense <\/a>(By Preponderance of the Evidence) (06\/09\/03).\u00a0 This instruction provides a framework for introducing a defense to the jury.\u00a0 When an affirmative defense is presented, the defendant bears the burden of proving it by a preponderance of the evidence.\u00a0 The court need not tell the jury that the defense is an \u201caffirmative\u201d defense.<\/p>\n","protected":false},"excerpt":{"rendered":" The following instructions explain the various burdens of proof that may be applicable in a criminal trial. CR04-021.\u00a0 Proof of Essential Elements\u00a0(06\/02\/03).\u00a0 This instruction, or one like it, is appropriately included after the substantive instructions on the elements of the … Continue reading