The Committee on Model Criminal Jury Instructions has adopted the following amended model criminal jury instructions: M Crim JI 37.3b (Bribing Witnesses — Crime/Threat to Kill); M Crim JI 37.4 (Intimidating Witnesses); M Crim JI 37.4a (Intimidating Witnesses — Criminal Case, Penalty More Than Ten Years); M Crim JI 37.4b (Intimidating Witnesses — Crime/Threat to Kill); M Crim JI 37.5b (Interfering with Witnesses — Crime/Threat to Kill); M Crim JI 37.6 (Retaliating Against Witnesses); M Crim JI 37.8b (Retaliating for Crime Report); and M Crim JI 37.9a (Influencing Statements to Investigators by Threat or Intimidation) to add “true threat” language in order to avoid infringement on First Amendment protections. The amended instructions are effective June 1, 2023.
[AMENDED] M Crim JI 37.3b
Bribing Witnesses — Crime/Threat to Kill
(1) The defendant is charged with the crime of witness bribery. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
(3) Second, that the defendant [gave/offered to give/promised to give] anything of value to [name complainant].
(4) Third, that when the defendant [gave/offered to give/promised to give] something of value to [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
(5) Fourth, that the defendant’s actions involved [committing or attempting to commit a crime/a threat to kill or injure a person/a threat to cause property damage].
[Read the following bracketed material where the charge involves a threat:]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
[AMENDED] M Crim JI 37.4
Intimidating Witnesses
(1) The defendant is charged with the crime of witness intimidation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
(3) Second, that the defendant [threatened/tried to intimidate] [name complainant].
[Read the following bracketed material where the charge is that the defendant threatened the complainant:]
[A threat is a written or spoken statement that shows an intent to injure or harm another person or that person’s property or family in some way. A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [threatened/tried to intimidate] [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
[AMENDED] M Crim JI 37.4a
Intimidating Witnesses — Criminal Case, Penalty More Than Ten Years
(1) The defendant is charged with the crime of witness intimidation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
(3) Second, that the defendant [threatened/tried to intimidate] [name complainant].
[Read the following bracketed material where the charge is that the defendant threatened the complainant:]
[A threat is a written or spoken statement that shows an intent to injure or harm another person or that person’s property or family in some way. A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [threatened/tried to intimidate] [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
(5) Fourth, that the official proceeding was a criminal case charging a crime with a maximum punishment of more than ten years or life in prison.
[AMENDED] M Crim JI 37.4b
Intimidating Witnesses — Crime/Threat to Kill
(1) The defendant is charged with the crime of witness intimidation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was an individual who was testifying, going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
(3) Second, that the defendant [threatened/tried to intimidate] [name complainant].
[Read the following bracketed material where the charge is that the defendant threatened the complainant:]
[A threat is a written or spoken statement of that shows an intent to injure or harm another person or that person’s property or family in some way. A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [threatened/tried to intimidate] [name complainant], [he/she] intended to [discourage (name complainant) from attending the proceeding, testifying at the proceeding, or giving information at the proceeding/influence (name complainant)’s testimony at the proceeding/encourage (name complainant) to avoid legal process, withhold testimony, or testify falsely]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness or was going to provide information at the ongoing or future proceeding.
(5) Fourth, that the defendant’s actions involved [committing or attempting to commit a crime/a threat to kill or injure a person/a threat to cause property damage].
[AMENDED] M Crim JI 37.5b
Interfering with Witnesses — Crime/Threat to Kill
(1) The defendant is charged with the crime of witness interference. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt: (2) First, that [name complainant] was an individual who was testifying, going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
(3) Second, that the defendant impeded, interfered with, prevented, or obstructed [name complainant] from attending, testifying, or providing information or tried to impede, interfere with, prevent, or obstruct [name complainant]. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that [name complainant] could be a witness at the proceeding.
(4) Third, that the defendant intended to impede, interfere with, prevent, or obstruct [name complainant] from attending, testifying at, or providing information at the official proceeding.
(5) Fourth, that the defendant’s actions involved [committing or attempting to commit a crime/a threat to kill or injure a person/a threat to cause property damage].
[Read the following bracketed material where the charge is that the defendant threatened the complainant:]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
[AMENDED] M Crim JI 37.6
Retaliating Against Witnesses
(1) The defendant is charged with the crime of witness retaliation. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] was a witness at an official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official that is authorized to hear evidence under oath.
(3) Second, that the defendant retaliated, attempted to retaliate, or threatened to retaliate against [name complainant] for having been a witness. Retaliate means to commit or attempt to commit a crime against the witness, to threaten to kill or injure any person, or to threaten to cause property damage.
[Read the following bracketed material where the charge is that the defendant threatened the complainant:]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
[AMENDED] M Crim JI 37.8b
Retaliating for Crime Report
(1) The defendant is charged with retaliating or attempting to retaliate against a person for reporting criminal conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that [name complainant] reported or attempted to report that [the defendant/(identify other person)] [describe conduct to be reported].
(3) Second, that the defendant [committed or attempted to commit the crime of (identify other crime that the defendant is alleged to have committed) as I have previously described to you against (name complainant)/threatened to kill or injure any person/threatened to cause property damage].
[Read the following bracketed material where the charge is that the defendant threatened the complainant:]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(4) Third, that when the defendant [committed or attempted to commit the crime of (identify other crime that the defendant committed) against (name complainant)/threatened to kill or injure any person/threatened to cause property damage], [he/she] did so as retaliation for [name complainant]’s having reported or attempting to report the crime of [identify crime].
[AMENDED] M Crim JI 37.9a
Influencing Statements to Investigators by Threat
(1) [The defendant is charged with/You may also consider the less serious offense of] threatening or intimidating a person to influence that person’s statement or presentation of evidence to a police investigator not involving [the commission or attempted commission of another crime/a threat to kill or injure any person/a threat to cause property damage]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant made a threat or said or did something to intimidate [name witness].
[Read the following bracketed material where the charge is that the defendant threatened the witness:]
[A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been meant as a true threat and not, for example, idle talk, a statement made in jest, or a solely political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage. It does not matter whether the defendant actually intended to carry out the threat or could carry out the threat.]
(3) Second, that when the defendant made the threat or used intimidating words or conduct, [he/she] was attempting to influence what [name witness] would tell [a police investigator/Officer (name complainant)] or whether [name witness] would give some evidence to [a police investigator/Officer (name complainant)] who [may be/was] conducting a lawful investigation of the crime of [identify crime].
[(4) Third, that when threatening or intimidating [name witness], the defendant [committed or attempted to commit the crime of (identify other crime that the defendant committed) as I have previously described to you/threatened to kill or injure any person/threatened to cause property damage.]