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Criminal Jury Instructions and Model Colloquies

Structure & Methodology Explained


The Unified Court System Committee on Criminal Jury Instructions and Model Colloquies is pleased to present the internet edition of the Criminal Jury Instructions, Second Edition (CJI2d) and the first edition of Model Colloquies (MC). The internet publication is the only current and official publication of CJI2d and MC. The first edition of CJI ceased publication more than 30 years ago and is superseded by the second edition.

A CJI2d instruction is a model instruction provided for the guidance of a court. It is not a mandated instruction, albeit CJI2d instructions have met with appellate court approval [seee.g. People v J.L., 36 NY3d 112, 122 [2020] [“As the Court has emphasized, the model charges contain the ‘preferred phrasing’ of legal instructions”]; People v Hill , 52 AD3d 380, 382 [1st Dept 2008] [“Although a trial judge is not obligated to use the standard jury instructions, this Court has stated ‘each time a judge declines to employ the carefully thought-out measured tone of the standard jury charge in favor of improvised language, an additional risk of reversal and a new trial is created’”]; People v Fairley , 63 AD3d 1288, 1290 [3d Dept 2009] [“the charge, which was identical to the reasonable doubt charge contained in the New York Criminal Jury Instructions . . . properly conveyed that concept to the jury”]. Individual cases may require a modification or addition to an instruction, particularly because the CJI2d Committee does not receive adversarial briefs or arguments on legal issues related to an instruction. Such issues are left to the discretion of the trial court.

Similarly, MC are provided for the guidance of a court; are not mandatory; and may be modified as necessary.

Structure of CJI2d

Recognizing that jurors have difficulty comprehending overly long and complex legal instructions, particularly in a jurisdiction that unfortunately does not permit a copy of any or all of the written final jury instructions to be given to the jury without the consent of the parties, the CJI2d format for an instruction of an offense attempts to provide an instruction that is as brief as reasonably possible without sacrificing the requirements of law.

The structure of an instruction of an offense is normally:

A statement of the number of the count and name of the offense.

The statutory definition of the offense.

The statutory or case law definitions of terms used in the definition of the offense.

Any required special instructions.

The elements of the offense the People must prove beyond a reasonable doubt.

The conclusion, specifying the verdicts, guilty or not guilty.

Normally, the statutory definition of an offense is reproduced verbatim. Gender neutral terms will be added if not in the statute; in an exceptional circumstance, a grammatical correction that does not affect the meaning may be required; and for some statutes a mens rea as required by Penal Law § 15.15(2) will be inserted.

The definition of a term used in the definition of an offense is normally limited to a definition of a term provided by statute or case law. The authority of each definition is included in a footnote. Whether to add a dictionary definition of a term that has not been approved by an appellate court rests in the discretion of the trial court.

With respect to the addition of “any required special instructions,” CJI2d recommends that an exceptionally detailed special instruction and especially one that may apply to more than one charged offense (e.g. justification; accomplice liability) be given to the jury immediately before the instruction of the first offense. Any necessary special instruction may normally be found in the General Applicability section of CJI2d; some special instructions (e.g. presumptions) for crimes defined in a particular Penal Law article are found in the “Additional Charges” section of the CJI2d page containing the charges for a particular Penal Law article.

Where the indictment, bill of particulars, or presented evidence includes a specific factual allegation, CJI2d will normally include the factual allegation in the listing of the elements of the offense the People must prove beyond a reasonable doubt.

In listing the elements the People must prove beyond a reasonable doubt, every effort is made to limit the number of elements as an aid in the jury’s comprehension. The basic format of the elements of an offense is for example:

Element (1) the jurisdiction and actus reus: On X date in the County of Y, the defendant (defendant’s name) e.g. caused the death of John Doe.

Element (2) the mens rea: That the defendant did so with the intent e.g. to cause the death of John Doe.

There are of course statutes defining crimes that require additional elements and those elements may come before or after the mens rea element.

With respect to the venue of the offense, the Committee recognizes that the law does not require “venue” in a particular county to be proven beyond a reasonable doubt; venue need only be proven by a preponderance of the evidence.  People v. Moore, 46 NY2d 1, 6 (1978). Because venue is, however, normally certain, and not in issue, to avoid a separate charge for venue when it is not in issue, venue is included in the items to be proved beyond a reasonable doubt. If, however, venue is in issue, the trial court should strike the reference to the County in the elements, and instead insert the “venue” instruction in CJI2d General Applicability, Geographical Jurisdiction, County Venue. If the “territorial jurisdiction” of the State of New York is in issue, that must be proved beyond a reasonable doubt [ People v. McLaughlin, 80 NY2d 466(1992)] and the trial court should insert the instruction on “territorial jurisdiction” in CJI2d General Applicability, Geographical Jurisdiction, Territorial Jurisdiction.

The instruction for an offense concludes with a simple specification of the authorized verdicts, guilty or not guilty; that conclusion, however, is modified when an affirmative defense is applicable to include an instruction of the defense. See e.g. CJI2d, Penal Law. article 125, Additional Charges, Extreme Emotional Disturbance Defense.

Understanding a CJI2d Instruction

The caption of a CJI2d instruction names the offense the instruction pertains to, followed by the applicable Penal Law section, and the effective date of the offense. If necessary to distinguish the instruction from other offenses, a very brief description will be included in the caption.

If an instruction has been revised, the month and year of the revision will be stated. The reason for the revision — normally a statutory amendment of a part of the definition of an offense or a decision of a court interpreting the statutory offense — will be set forth in a footnote. A major revision of the statute defining the offense will normally result in a new instruction, with the former instruction preserved for an offense committed before the effective date of the revision.

Alternative clauses in the definition of an offense may be listed in the statutory definition of the offense and in the listing of the elements of the offense after the phrase: Select appropriate alternative. If more than one alternative is authorized the phrase will read: Select appropriate alternative(s). The same introductory phrase may appear in the section that defines terms included in the statutory definition of the offense when not every term is applicable.

Brackets around a word or words signal that the inclusion of that word or words is optional depending on the facts of the case.

The definition of “intent,” “knowingly,” and “possess” in an instruction is drawn from the statutory definition of each term. When necessary, a more detailed definition drawn from court decisions may be found in the General Applicability section of CJI2d and, if warranted, may be included in the instruction of the offense.

If the prosecution’s theory of liability includes acting in concert, in addition to the accomplice liability instruction, the element defining the actus reus must be modified to read, for example:

On X date in the County of Y, the defendant (defendant’s name), personally or acting in concert, e.g. cause the death of John Doe.

Note: That added language is not inserted in the mens rea element because Penal Law § 20.00 requires that the accomplice “act[ ] with the mental culpability required for the commission [of the offense].” See also Penal Law § 20.15.

When, depending on the facts of a case, the law requires certain additions to an instruction, that instruction will follow the words: Note: Add where appropriate.

The source for the provision of an instruction of an offense is specified in a footnote; the sources of an instruction of General Applicability (as well as the Model Colloquies) are stated in an endnote; at times a footnote/endnote will contain information that is critical for the drafting of a correct instruction.

Complete CJI2d Model Instructions

While the CJI2d General Applicability section may be used to assemble a complete jury instruction, CJI2d provides a complete model instruction for a voir dire (including suggested questions), preliminary instructions, and final instructions. A model instruction for selecting and impaneling a grand jury is also provided.

As with individual instructions, these models are provided for the guidance of a court and may require the inclusion of additional instructions or the deletion of an included instruction as the facts of a case may require.

Model Colloquies

The Court of Appeals has traditionally indicated that trial courts are in the best position to consider what circumstances are relevant in determining how best to address various issues, such as the taking of a defendant’s plea of guilty or a waiver of a right. The Model Colloquies are intended to provide a trial court assistance in fulfilling that responsibility.

The Court of Appeals has, however, expressly approved the Model Colloquy for "waiver of the right to appeal” in   People v Thomas , 34 NY3d 545, 567 [2019][“the Model Colloquy for the waiver of right to appeal drafted by the Unified Court System's Criminal Jury Instructions and Model Colloquy Committee neatly synthesizes our precedent and the governing principles and provides a solid reference for a better practice”].

The Model Colloquies use the same signals for what to include in a colloquy as are used for a CJI2d instruction. See “Understanding a CJI2d Instruction.”