REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL)

REVISED ARIZONA

JURY INSTRUCTIONS

(CRIMINAL)

Fifth Edition, 2019

(Cite as RAJI (CRIMINAL) 5th)

Continuing Legal Education

Third Edition – 2008

2010 Supplement − April 2010

2011 Cumulative Supplement – June 2011

2012 Cumulative Supplement – June 2012

Third Edition –December 2013

Fourth Edition – December 2016

2017 Update – March 2017

2018 Update – July 2018

Fifth Edition – September 2019

State Bar of Arizona

Library of Congress Number Applied for.

Printed in the United States of America

RAJI

(CRIMINAL) 5TH has been prepared by the Criminal Jury Instructions

Committee of the State Bar of Arizona. The State Bar Board of Governors has

approved these instructions and authorized their publication and sale.

These instructions are recommended for use in all criminal trials in Arizona courts.

But court and counsel should satisfy themselves in each case—from original and

fully current authority—that the instructions being given in a case are both

appropriate and correct for the case.

With regard to the use of these instructions, please refer to the Important Notice

immediately following.

PREFACE

This Fifth Edition, and prior editions, of REVISED CRIMINAL JURY INSTRUCTIONS (RAJI

CRIMINAL) is the product of thousands of hours of work by the State Bar of Arizona Criminal

Jury Instruction Committee. This project would not have been accomplished without the

dedicated work of the members of the Criminal Jury Instruction Committee. RAJI CRIMINAL,

5TH EDITION represents a collaborative effort by defense attorneys, prosecutors and judicial

officers.

The First Edition of RAJI

CRIMINAL was published in 1989 as RECOMMENDED ARIZONA

JURY INSTRUCTIONS. Those jury instructions were approved in advance of publication by the

Arizona Supreme Court. Subsequently, the Arizona Supreme Court stopped approving jury

instructions except in the context of appellate cases. Accordingly, the user is advised that these

instructions have not been approved by the Arizona Supreme Court.

The Second Edition of RAJI

CRIMINAL was published in 1996 under the renamed title

REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), 2nd Edition. After publication of the 1996

RAJIs, the Criminal Jury Instruction Committee was assigned the task of revising the

instructions. A supplement was published in 2000. From 1997 to 2005, the Committee

completed the Standard Instructions, eight chapters in Title 13, Title 28 instructions and non-

capital case aggravation phase instructions. Work on the capital case instructions started in 2002

following the United State Supreme Court’s decision in Ring v. Arizona. Since 2005, the

Committee completed over twenty-five chapters in Title 13 and four non-Title 13 chapters,

revamped Title 28 (predominantly DUI instructions) and drafted the capital case instructions,

amounting to over 400 individual instructions and verdict forms. A large bulk of these

instructions, including all the capital case instructions, did not even exist in the 1996 RAJI

CRIMINAL, 2nd Edition.

The Third Edition, published in 2008, represented a comprehensive revision to RAJI

CRIMINAL, 2nd Edition and its supplements. Subsequent editions include revisions based on

yearly legislative amendments to the Arizona Criminal Code.

Many of the jury instructions are accompanied by Use Notes and Comments. The Criminal

Jury Instruction Committee not only wants RAJI

CRIMINAL, 5th Edition to be a comprehensive

set of accurate jury instructions, but also a resource for the user wishing to do additional

research about issues related to criminal jury instructions.

We thank the past and present members of the Committee for their hard work in bringing

the third edition to fruition. We also thank Ilona Kukan from the State Bar staff for her

assistance and encouragement. The instructions remain a work in progress, so any suggestions

for revisions or for new instructions are always appreciated. The State Bar is committed to

keeping RAJI Criminal up-to-date with periodic supplements reflecting legislative changes and

the always evolving case law.

Hon. Sam J. Myers, Chair

June 2019

State Bar of Arizona

Criminal Jury Instructions Committee Members

1999-2019

Hon. Gary E. Donahoe, Chair (04-11)

Antonio R. Zúñiga, Chair (02-03)

Hon. James H. Keppel, Chair (98-02)

Hon. Paul J. McMurdie, Chair (11-13)

Hon. Sam J. Myers, Chair (15-19)

Lisa M. Aubuchon (00-10)

Hon. Jay R. Adleman (12-15)

Jennifer S. Bedier (05-06)

James P. Beene (03-15)

Matthew H. Binford (12-18)

Elizabeth T. Bingert (16-19

Hon. James G. Blake (96-01)

Michael V. Black (11-13)

Jocquese L. Blackwell (08-11)

Lawrence H. Blieden (08-14)

Michael A. Breeze (18-21)

Hon. Maria C. Brewer (12-19)

Brandon M. Brown (14-17)

Sean H. Bruner (98-02)

Hon. Douglas R. Camacho (15-18)

Theodore Campagnolo (99-13)

Flynn P. Carey (11-13)

C. Daniel Carrion (96-19)

Kent E. Cattani (06-12)

Bruce H. Chalk (09-19)

Joel Chorny 915-1

James P. Cleary (00-03)

Edwin M. Cook (99-01)

Sylvina D. Cotto (99-01)

William B. DeMars, Jr. (04-10)

David G. Derickson (13-14)

Hon. Gary E. Donahoe (02-08)

Hon. Sally Schneider Duncan (04-13)

David J. Euchner (10-19)

Hon. John M. Gaylord (02-03)

Stacey F. Gottlieb (97-01)

Robert K. Gundacker (11-17)

Hon. Philip Hall (99)

Paul W. Hawkins (16-19)

Hon. Ruth Hilliard (99)

Melissa Ho (07-13)

Hon. Jason R. Holmberg (18-19

Robb P. Holmes (05-19)

Jeremy D. Horn (14-17)

Hon. Jeffrey A. Hotham (98-01)

Joan N. Huls (98-01)

Patience Huntwork (99)

Hon. Brian K. Ishikawa (98-01)

Shawn A. Jensvold (10-13)

Alice M. Jones (18-19)

Monica B. Klapper (10-13)

Hon. Roger Kaufman (00)

Hon. John N. Lamb (05-17)

Todd C. Lawson (11-19)

Vikki M. Liles (13-16)

Jennifer K. Linn (16-19)

Hon. Danelle B. Liwski (18-19)

Comm. Steven P. Lynch (03-12)

Hon. Julie A. Mata (18-19)

Sarah L. Mayhew (18-19)

Joseph T. Maziarz (00-03)

Steve W. McCarthy (15-19)

Hon. Crane McClennen (98-03)

Jane E. McLaughlin (07)

Hon. Paul J. McMurdie (05-11

Hon. Colleen McNally (99-03)

Alicia M. Morrison Skupin (07-16)

Janet McNaughton (98-03)

Comm. Richard L. Nothwehr (06-12)

Ed Novak (99)

Victoria A. Otto (15-18)

Hon. Jose S. Padilla (00-16)

Hon James E. Padish (98-01)

Richard T. Platt (09-10)

Sigmund G. Popko (96-01)

Hon. Peter Reinstein (99)

Leonardo L. Ruiz (13-19)

Jon Sands (96-01)

Jeffrey Sandler (99)

Louis F. Stalzer (96-16)

Hon. Alicia M. Skupin (16-19)

Shawn L. Steinberg (18-19)

Mikel P. Steinfeld (13-19)

Patricia L. Stevens (06-11)

Joseph P. St. Louis (03-06)

Hon. Paul E. Tang (04-16)

Roberta L. Tepper (04-07)

Charles M. Thomas (04-13)

Anna M. Unterberger (99-12)

Kenneth N. Vick (13-19)

William S. Wallace (18-19)

Hon. Michael Wilkinson (99)

Hon. Gerald A. Williams (16-19)

Antonio R. Zúñiga (98-19)

IMPORTANT NOTICE

The following jury instructions have been prepared by the Criminal Jury Instruction

Committee of the State Bar of Arizona. The State Bar Board of Governors has authorized

the publication and distribution of these instructions for use where appropriate.

In the past, the Arizona Supreme Court expressed qualified approval for various jury

instructions, which were then published as RECOMMENDED ARIZONA JURY INSTRUCTIONS.

However, before the last RAJI (Criminal) publication, the Arizona Supreme Court decided

not to issue or qualify approvals for any jury instructions. Due to the action by the Court,

members of the Board of Governors established guidelines for future RAJIs and decided

that this disclaimer should be included for all RAJIs. Accordingly, the instructions have also

been renamed R

EVISED ARIZONA JURY INSTRUCTIONS−CRIMINAL (RAJI-CRIMINAL), 5

TH.

STATEMENT OF PURPOSE AND APPROACH

RAJI instructions are designed to be neutral, brief, and simply worded. They should be

selected and edited to be case specific and non-RAJI instructions being added only to

the extent needed.

The Committee periodically adds new RAJI instructions. Nonetheless, certain omissions

are deliberate and are expected to be permanent. The Committee has intentionally left

out routinely requested argumentative instructions and those which explore overly

detailed rules of law.

The volume of instructions given to each jury should be held to a reasonable minimum.

Schwarzer, Communication with Juries: Problems and Remedies, 69 CAL. L. REV. (1981). We

believe that juries function better when not overloaded with unfamiliar and unnecessary

information.

In most trials, the ordinary principles of law that apply to the facts provide both

necessary and sufficient bases for all jury instructions. Requested jury instructions

selectively quoting from appellate court opinions seldom are helpful, nor do they

generally reflect the kind of language best adapted to jury instructions. Such requests

often use language and concern subjects addressed to trial court judges and lawyers

rather than to jurors. Petefish v. Dawe, 137 Ariz. 570, 672 P.2d 914 (1983).

In Rosen v. Knaub, 175 Ariz. 329, 857 P.2d 381 (1993), the Arizona Supreme Court stated

that every reasonable precaution should be taken to avoid instructions which jurors

might think reflect the judge’s weighing of the evidence. Rosen also overruled the giving

of “sudden appearance” and “unusual event” instructions, giving reasons for rejecting

proposed jury instructions which fit nearly argumentative, narrow, and particularized

statements of law, whether they favor plaintiffs or defendants. RAJI instructions are

designed to follow the principles stated in Rosen.

TABLE OF CONTENTS

PRELIMINARY CRIMINAL INSTRUCTIONS

1 Importance of Jury Service ...........................................................................................1

2 Duty of Jurors .................................................................................................................1

3 Evidence ..........................................................................................................................2

4 Direct and Circumstantial Evidence ............................................................................2

5 Stipulations ......................................................................................................................2

6 Evidence, Statements of Lawyers and Rulings ..........................................................3

7 Rulings of the Court ......................................................................................................3

8 Exclusion of Witnesses ..................................................................................................4

9 Bench Conferences and Recesses ................................................................................4

10 Credibility of Witnesses .................................................................................................5

11 Expert Witness................................................................................................................5

12 No Transcript Available to Jury; Taking Notes .........................................................6

13 Admonition .....................................................................................................................6

14 Media Coverage ..............................................................................................................8

15 Presence of a Deputy .....................................................................................................8

16 Questions by Jurors .......................................................................................................9

17 Alternate Jurors ...............................................................................................................9

18 Constitutional Right Not to Testify .......................................................................... 10

19 Statements of Defendant ........................................................................................... 10

20 Presumption of Innocence and Burden of Proof .................................................. 10

21 Jury to Be Guided by Official English Translation/Interpretation

(Short Version) ........................................................................................................... 11

21 Jury to Be Guided by Official English Translation/Interpretation

(Long Version) ............................................................................................................ 12

21.1 Interpreter for the Defendant ................................................................................... 12

21.2 Citizenship/Nationality Instruction ......................................................................... 12

22 The Charged Offense ................................................................................................. 13

23 Scheduling During Trial ............................................................................................. 13

24 Order of Trial ............................................................................................................... 13

TANDARD CRIMINAL INSTRUCTIONS

1 Duty of Jury .................................................................................................................. 15

2 Indictment/Information Is Not Evidence .............................................................. 15

3 Presumption of Innocence ........................................................................................ 15

4(a) Burden of Proof .......................................................................................................... 16

4(b) Standards for the Burden of Proof ........................................................................... 17

5 Jury Not to Consider Penalty .................................................................................... 17

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

6 Defendant’s Right to Represent Himself/Herself ................................................. 18

7 Defendant Absent at Trial.......................................................................................... 18

8 Evidence to Be Considered........................................................................................ 18

9 Defendant Need Not Produce Evidence ................................................................ 19

10 Lawyers’ Comments Are Not Evidence .................................................................. 19

11 Stipulations ................................................................................................................... 19

12 Judicial Notice of Adjudicative Facts ....................................................................... 20

13 Redacted Exhibits ........................................................................................................ 20

14 Direct and Circumstantial Evidence ......................................................................... 20

15 Credibility [Believability] of Witnesses ..................................................................... 21

16 Testimony of Law Enforcement Officers ............................................................... 21

17 Expert Witness ............................................................................................................. 21

18(a) Defendant Need Not Testify ..................................................................................... 22

18(b) Defendant’s Testimony .............................................................................................. 22

19 Voluntariness of Defendant’s Statements) .............................................................. 22

20 Reserved ........................................................................................................................ 22

21 Defendant Witness (Prior Conviction) .................................................................... 23

22 Witness (Prior Conviction) ........................................................................................ 23

23 Evidence for Limited Purpose .................................................................................. 24

24 Other Acts .................................................................................................................... 24

25 Character Evidence in Sexual Misconduct Cases ................................................... 24

26 Character and Reputation of the Defendant ........................................................... 25

27 Facility Dog .................................................................................................................. 25

28 Absence of Other Participant .................................................................................... 26

29 Consider Evidence Separately ................................................................................... 26

30 Separate Counts ........................................................................................................... 26

31 Dismissal/Severance of Some Charges Against Defendant ................................. 27

32 Disposition of charge Against Defendant ............................................................... 27

33 Multiple Acts ................................................................................................................ 27

34 Reserved ........................................................................................................................ 28

35 Voluntary Act ............................................................................................................... 28

36 Lesser-Included Offense ............................................................................................ 28

37 Possession Defined ..................................................................................................... 29

38 Deliberate Ignorance ................................................................................................... 30

39 Involuntary Intoxication ............................................................................................. 31

40 Flight or Concealment ................................................................................................ 32

41 Threats by Defendant ................................................................................................. 32

42 Lost, Destroyed, or Unpreserved Evidence ............................................................ 33

43 Mere Presence .............................................................................................................. 33

44 Motive ........................................................................................................................... 34

45 Identification ................................................................................................................ 34

TABLE OF CONTENTS

46 Alibi or Non-Presence of the Defendant ................................................................ 35

47 Third Party Culpability ............................................................................................... 35

48 Reserved ........................................................................................................................ 36

49 Reserved ........................................................................................................................ 36

50 Reserved ........................................................................................................................ 36

51 Jury Foreperson ........................................................................................................... 36

52 Closing Instruction ...................................................................................................... 36

53 Impasse Instruction .................................................................................................... 37

54 Reconstituting the Jury ............................................................................................... 38

55 Jury Polling ................................................................................................................... 39

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 1

1.052 Act Defined .................................................................................................................. 41

1.053 Benefit Defined .......................................................................................................... 41

1.054 Calendar Year Defined ............................................................................................... 41

1.056 Conduct Defined ......................................................................................................... 41

1.057 Crime Defined ............................................................................................................. 41

1.058 Criminal Street Gang Defined ................................................................................... 41

1.059 Criminal Street Gang Member Defined ................................................................... 41

1.0510(a)(1) Intentionally or With Intent To Defined ................................................................. 42

1.0510(a)(2) Intent − Inference ...................................................................................................... 42

1.0510(b) Knowingly Defined .................................................................................................... 42

1.0510(c) Recklessly (Reckless Disregard) Defined ................................................................ 43

1.0510(d) Criminal Negligence ................................................................................................... 44

1.0510.01 Included Mental State − Knowingly ......................................................................... 44

1.0510.02 Included Mental State − Recklessly .......................................................................... 44

1.0510.03 Included Mental State − Criminal Negligence ........................................................ 44

1.0512 Dangerous Instrument Defined ................................................................................ 45

1.0513 Dangerous Offense Defined ..................................................................................... 45

1.0514 Deadly Physical Force Defined ................................................................................ 45

1.0515 Deadly Weapon Defined ........................................................................................... 45

1.0516 Economic Loss Defined ........................................................................................... 46

1.0517 Enterprise Defined ...................................................................................................... 46

1.0518 Felony Defined ............................................................................................................ 46

1.0519 Firearm Defined .......................................................................................................... 46

1.0523 Human Smuggling Organization Defined - Deleted ............................................. 46

1.0524 Intoxication Defined ................................................................................................... 46

1.0528 Omission Defined ....................................................................................................... 47

1.0529 Peace Officer Defined ................................................................................................ 47

1.0530 Person Defined ............................................................................................................ 47

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

1.0532 Physical Force Defined ............................................................................................... 47

1.0533 Physical Injury Defined .............................................................................................. 47

1.0534 Possess Defined ........................................................................................................... 47

1.0535 Possession Defined ..................................................................................................... 47

1.0537 Property Defined ......................................................................................................... 47

1.0538 Public Servant Defined .............................................................................................. 48

1.0539 Serious Physical Injury Defined ............................................................................... 48

1.0540 Unlawful Defined ........................................................................................................ 48

1.0541 Vehicle Defined ........................................................................................................... 48

1.0542 Voluntary Act Defined ............................................................................................... 49

1.0543 Voluntary Intoxication Defined ................................................................................ 49

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 2

2.024 Transferred Intent ...................................................................................................... 51

2.025 Affirmative Defense .................................................................................................... 51

2.03 Causation Instruction − Intervening Event............................................................. 52

2.03.02 Causation Instruction − Pre-existing Physical Condition ..................................... 53

2.03.03 Causation (Multiple Actors) ....................................................................................... 53

2.04.01(A) Causation Ignorance of Fact ...................................................................................... 53

2.04.02(B) Causation Ignorance of Law ...................................................................................... 53

2.06 Entrapment ................................................................................................................. 54

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 3

3.01 Accomplice .................................................................................................................. 55

3.05 Enterprise Liability ...................................................................................................... 55

3.06 Personal Liability for Conduct of an Enterprise..................................................... 56

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 4

4.02 Justification Defense in Execution of Public Duty ................................................ 57

4.03 Justification: Use of Physical Force .......................................................................... 58

4.04 Justification for Self-Defense..................................................................................... 59

4.04-1 Non-Justification for Threat or Use of Physical Force ......................................... 61

4.05 Justification for Self-Defense Physical Force .......................................................... 62

4.06 Justification for Defense of a Third Person ............................................................ 64

4.07 Justification in Defense of Premises ......................................................................... 66

4.08 Justification in Defense of Property ......................................................................... 67

4.09 Justification for Use of Physical Force in Law Enforcement ............................... 68

4.10(1) Justification for Threatened Deadly Physical Force in Law Enforcement ......... 68

4.10(2) Justification for Using Deadly Physical Force in Law Enforcement by a

Non-Peace Officer ...................................................................................................... 70

TABLE OF CONTENTS

4.10(3a) Justification for Using Deadly Physical Force in Law Enforcement by a

Peace Officer ................................................................................................................ 71

4.10(3b) Justification for Using Deadly Physical Force in Law Enforcement by a

Peace Officer ................................................................................................................ 72

4.10(4) Justification for Threatening Deadly Physical Force in Law

Enforcement by a Peace Officer ............................................................................... 74

4.11 Use of Force in Crime Prevention ............................................................................ 74

4.12 Duress ........................................................................................................................... 76

4.14 Justification for Correctional Officer to Use Reasonable and Necessary

Means ............................................................................................................................ 77

4.15 Justification – Domestic Violence ............................................................................ 77

4.16 Justification for Security Officer to Use Reasonable and Necessary Means ...... 78

4.16(1) Security Officer Defined ............................................................................................ 78

4.16(2) Private Contractor Defined ....................................................................................... 79

4.17 Necessity Defense ....................................................................................................... 79

4.18 Justification for Using Force in Defense of Residential Structure or

Occupied Vehicles ....................................................................................................... 80

4.19 Justification: Presumption and Exceptions ............................................................. 80

4.21 Justification: Defensive Display of a Firearm ......................................................... 81

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 5 INSTRUCTIONS

5.02 Insanity (Not Guilty by Reason of Insanity) (for offenses committed

prior to January 2, 1994) ............................................................................................. 83

5.02-1 Insanity (Guilty Except Insane) (for offenses committed on or after

January 2, 1994) ........................................................................................................... 84

5.02-2 Insanity (Not Guilty by Reason of Insanity) (for offenses committed

prior to January 2, 1994) ............................................................................................. 85

5.03-1a Effect of Non-Prescribed Alcohol or Drug Use or Abuse of Prescribed

Medication (Non-Insanity Case) ............................................................................... 86

5.03-1b Effect of Non-Prescribed Alcohol or Drug Use or Abuse of Prescribed

Medication (Insanity Case) ......................................................................................... 87

5.03-2a Effect of Non-Abusive Use of Prescribed Medication (Non-Insanity

Case) .............................................................................................................................. 87

5.03-2b Effect of Non-Abusive Use of Prescribed Medication (Insanity Case) .............. 88

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 7 INSTRUCTIONS

7.04 Dangerous Offense Defined ..................................................................................... 91

7.05 Dangerous Crime Against a Child ............................................................................ 92

7.05 Verdict Form ................................................................................................................ 93

7.08-C Release Status ............................................................................................................... 93

7.08-C Verdict Form ................................................................................................................ 96

7.08-D Release Status ............................................................................................................... 96

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

7.08-D Verdict Form ................................................................................................................ 97

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 10 INSTRUCTIONS

10.01 Attempt ......................................................................................................................... 99

10.02 Solicitation .................................................................................................................. 100

10.031 Elements of Conspiracy ........................................................................................... 100

10.032 Relationship Among Multiple Co-Conspirators (Deleted) ................................. 101

10.033 Liability for a Single Conspiracy to Commit Multiple Offenses ........................ 101

10.034 Verdict Form Deleted with Explanatory Note ..................................................... 101

10.035 Liability for Other Conspirator’s Acts Deleted with Explanatory Note ........... 101

10.036 Mere Association Not Sufficient for Conspiracy ................................................. 102

10.037 Scope of Proof of Conspiracy ................................................................................. 102

10.038 Proof of Membership in Conspiracy ...................................................................... 103

10.039 Acts and Statements of Co-Conspirators .............................................................. 103

10.0310 Consideration of Evidence of Success of Conspiracy ......................................... 104

10.0312 Definition of “Overt Act” for Conspiracy ............................................................ 104

10.0313 Conspiracy − Guilt of Substantive Offense ......................................................... 104

10.04 Facilitation .................................................................................................................. 105

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 11 INSTRUCTIONS

11.02 Negligent Homicide .................................................................................................. 107

11.03A1 Manslaughter .............................................................................................................. 118

11.03A2 Manslaughter by Sudden Quarrel or Heat of Passion ......................................... 109

11.03A3 Manslaughter by Aiding Suicide .............................................................................. 110

11.03A4 Manslaughter by Coercion ....................................................................................... 110

11.03A5 Manslaughter of Unborn Child ............................................................................... 110

11.04 Second-Degree Murder ............................................................................................ 112

11.04A Second-Degree Murder (Mother and Unborn child) ........................................... 113

11.05 First-Degree Premeditated Murder ......................................................................... 114

11.05A1 First-Degree Murder of an Unborn Child ............................................................. 116

11.05A3 First Degree Murder of a Law Enforcement Officer .......................................... 116

11.052 First Degree Felony Murder .................................................................................... 117

Sample Instruction with Lesser-Included Offenses Instruction and

Verdict Form .............................................................................................................. 117

Sample Instruction with Lesser Included Offenses of First-Degree

Murder and Verdict Form ........................................................................................ 118

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 12

12.01 Endangerment ............................................................................................................ 123

12.02 Threatening or Intimidating ..................................................................................... 123

12.03 Assault ......................................................................................................................... 124

TABLE OF CONTENTS

12.04 Aggravated Assault − General ................................................................................ 124

12.04B Aggravated Assault – Domestic Violence ............................................................. 126

12.048 Aggravated Assault Upon Teacher or School Employee .................................... 127

12.04.09A Aggravated Assault − Control of Officer’s Firearm ............................................ 127

12.04.09B Aggravated Assault − Control of Officer’s Weapon Other Than a Firearm ... 128

12.04.09C Aggravated Assault − Control of Officer’s Implement Other Than a

Firearm ........................................................................................................................ 128

12.04.10 Aggravated Assault − Defendant in Custody ........................................................ 129

12.05 Unlawfully Administering Intoxicating Liquors or Drug .................................... 129

12.06 Dangerous or Deadly Assault by a Prisoner ......................................................... 130

12.07 Prisoners [Committing Assault with Intent to Incite to Riot/Participate

in a Riot]...................................................................................................................... 130

12.08 Assault: Vicious Animals .......................................................................................... 131

12.09 Drive-By Shooting .................................................................................................... 131

12.11 Discharging Firearm at a Structure ......................................................................... 131

12.12 Prisoner Assault with Bodily Fluids ....................................................................... 132

12.14 Unlawful Mutilation .................................................................................................. 132

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 13

13.01 Restrain Defined ........................................................................................................ 135

13.02 Custodial Interference .............................................................................................. 135

13.02 Verdict Form− Custodial Interference ................................................................... 136

13.02C Defense to Custodial Interference .......................................................................... 137

13.031 Unlawful Imprisonment ........................................................................................... 138

13.032 Unlawful Imprisonment − Defense ...................................................................... 138

13.04 Kidnapping ................................................................................................................. 139

13.05 Access Interference ................................................................................................... 140

13.06 Unlawfully Obtaining Labor or Services ............................................................... 140

13.07.01 Sex Trafficking ........................................................................................................... 140

13.07.02 Sex Trafficking of a Minor ....................................................................................... 142

13.07.A Sex Trafficking (Victim Eighteen Years of Age or Older) ................................. 143

13.07.B Sex Trafficking (Victim Under Eighteen Years of Age)...................................... 143

13.08 Trafficking of Persons for Forced Labor or Services .......................................... 144

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 14

14.01.01 Oral Sexual Contact Defined ................................................................................... 147

14.01.02 Position of Trust Defined ........................................................................................ 147

14.01.03 Sexual Contact Defined ............................................................................................ 147

14.01.04 Sexual Intercourse Defined...................................................................................... 147

14.01.05 Spouse Defined .......................................................................................................... 147

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

14.01.06 Teacher Defined ........................................................................................................ 147

14.01.07 Without Consent Defined ........................................................................................ 148

14.02 Indecent Exposure .................................................................................................... 148

14.03 Public Sexual Indecency to a Minor ....................................................................... 149

14.04 Sexual Abuse .............................................................................................................. 149

14.05.01 Sexual Conduct with a Minor ................................................................................. 150

14.05.02 Sexual Conduct with a Minor – Special Relationship .......................................... 151

14.06.01 Sexual Assault ............................................................................................................. 152

14.06.02 Sexual Assault − Aggravation Instruction if Use of Drugs Alleged .................. 153

14.06.03 Sexual Assault − Aggravation Instruction for the Allegation of Serious

Physical Injury ............................................................................................................ 154

14.07.01 Defense to Sexual Abuse .......................................................................................... 154

14.07.02 Defense to Sexual Conduct with a Minor.............................................................. 155

14.07.03 Emergency Occurrence Defense to Indecent Exposure, Sexual Abuse,

Sexual Conduct with a Minor, or Sexual Assault .................................................. 155

14.07.04 Lack of Sexual Interest Defense to Sexual Abuse and Molestation of

Child ............................................................................................................................ 156

14.07.05 Defense Based on Age to Sexual Conduct with a Minor or Aggravated

Luring a Minor for Sexual Exploitation ................................................................. 156

14.09 Unlawful Sexual Conduct by Probation Department Employees ..................... 157

14.10 Molestation of a Child .............................................................................................. 158

14.11.01 Bestiality ...................................................................................................................... 158

14.11.02 Bestiality ...................................................................................................................... 159

14.17 Continuous Sexual Abuse of a Child ...................................................................... 159

14.18 Sexual Misconduct by a Licensed Behavioral Health Professional .................... 160

14.19.1 Unlawful Sexual Conduct by a Correctional Employee ...................................... 161

14.23 Violent Sexual Assault .............................................................................................. 164

14.24.01 Voyeurism ................................................................................................................... 162

14.24.02 Voyeurism ................................................................................................................... 164

14.25.01 Unlawful Distribution of Recognizable Images.................................................... 165

14.28 Sexual Extortion ........................................................................................................ 166

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 15

15.01(1) Critical Public Service Facility Defined .................................................................. 167

15.01(2) Enter or Remain Defined ......................................................................................... 167

15.01(3) Entry Defined ............................................................................................................ 167

15.01(4) Fenced Commercial Yard Defined ......................................................................... 167

15.01(6) Fenced Residential Yard Defined ........................................................................... 168

15.01(7) In the Course of Committing Defined ................................................................... 168

15.01(8) Manipulation Key Defined....................................................................................... 168

15.01(9) Master Key Defined .................................................................................................. 168

TABLE OF CONTENTS

15.01(10) Nonresidential Structure Defined ........................................................................... 168

15.01(11) Residential Structure Defined .................................................................................. 168

15.01(12) Structure Defined ...................................................................................................... 168

15.01(13) Vending Machine Defined ....................................................................................... 168

15.04 Criminal Trespass in the First Degree .................................................................... 169

15.05A1 Possession of Burglary Tools .................................................................................. 169

15.05A2.1 Possession of Master Key ........................................................................................ 170

15.05A2.2 Possession of Manipulation Keys ........................................................................... 170

15.05A2.3 Possession of a Manipulation Key .......................................................................... 170

15.06 Burglary in the Third Degree ................................................................................... 171

15.07 Burglary in the Second Degree ................................................................................ 171

15.08 First Degree Burglary ................................................................................................ 172

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 16

16.006 Tampering with Utility Property Defined ............................................................. 175

16.011 Damaging or Damage Defined ............................................................................... 175

16.012 Defacing Defined ..................................................................................................... 175

16.013 Litter Defined ............................................................................................................ 175

16.014 Property of Another Defined .................................................................................. 176

16.015 Tamper Defined ....................................................................................................... 176

16.016 Utility Defined .......................................................................................................... 176

16.02 Criminal Damage ....................................................................................................... 176

16.021 Criminal Damage to a Utility ................................................................................... 177

16.022 Criminal Damage to a Utility – Verdict Form ...................................................... 177

16.023 Criminal Damage – Verdict Form .......................................................................... 178

16.04 Aggravated Criminal Damage.................................................................................. 178

16.041 Aggravated Criminal Damage − Form of Verdict............................................... 179

16.05 Aggregation of Amounts for Criminal Damage ................................................... 180

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 17

17.01(1) Damage Defined........................................................................................................ 181

17.01(2) Occupied Structure Defined .................................................................................... 181

17.01(3) Property Defined ....................................................................................................... 181

17.01(4) Structure Defined ...................................................................................................... 181

17.01(5) Wildland Defined ...................................................................................................... 181

17.02 Reckless Burning ....................................................................................................... 181

17.03 Arson of a Structure or Property ............................................................................ 182

17.04 Arson of an Occupied Structure ............................................................................. 183

17.05 Arson of an Occupied Jail or Prison Facility ........................................................ 183

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 18

18.01(1) Check Defined ........................................................................................................... 185

18.01(2) Control or Exercise Control Defined..................................................................... 185

18.01(3) Credit Defined ........................................................................................................... 185

18.01(4) Deprive Defined ........................................................................................................ 185

18.01(5) Draw Defined ............................................................................................................ 185

18.01(6) Funds Defined ........................................................................................................... 185

18.01(7) Issue Defined ............................................................................................................. 185

18.01(8) Material Misrepresentation Defined ....................................................................... 186

18.09(9) Means of Transportation Defined .......................................................................... 186

18.01(10) Obtain Defined .......................................................................................................... 186

18.01(11) Pass Defined ............................................................................................................... 186

18.01(12) Property Defined ....................................................................................................... 186

18.01(13) Property of Another Defined .................................................................................. 186

18.01(14) Services Defined ........................................................................................................ 186

18.01(15) Value Defined ............................................................................................................ 187

18.01(15).01 Value of Ferrous or Nonferrous Metal Defined .................................................. 187

18.01(16) Drawee Defined ......................................................................................................... 187

18.01(17) Drawer Defined ......................................................................................................... 187

18.02.01 Theft ............................................................................................................................ 188

18.02.02 Theft (Vulnerable Adult) .......................................................................................... 189

18.02.02A Inference Relating to theft from Vulnerable Adult (for Offenses

Committed On or After September 30, 2009 ....................................................... 191

18.02.02B Affirmative Defense to Theft from a Vulnerable Adult (for Offenses

Committed On or After September 30, 2009 ....................................................... 192

18.02.03 Inference Relating to actions for Theft of Ferrous and Nonferrous

Metal ............................................................................................................................ 193

18.02.04 Inference Relating to Actions for Theft of Ferrous or Nonferrous

Metal ............................................................................................................................ 193

18.027 Definition of Value in Theft Cases ......................................................................... 194

18.028 Verdict Form Instruction for Chapter 18 Offenses ............................................. 195

18.03 Unlawful Use of Means of Transportation ........................................................... 195

18.04.01 Theft by Extortion .................................................................................................... 196

18.04.02 Affirmative Defense to Theft by Extortion under A.R.S. § 13-

1804(A)(5) or (7) ........................................................................................................ 197

18.05(1) Continuing Criminal Episode Defined .................................................................. 198

18.05.01 Shoplifting .................................................................................................................. 198

18.05.02A Shoplifting (With an Artifice or Prior Convictions) (For Offenses

Committed Prior to September 19, 2007) ............................................................. 200

18.05.03B Inference Relating to Shoplifting (for offenses committed on or after

September 19, 2007 ................................................................................................... 201

TABLE OF CONTENTS

18.06.B Unlawful Failure to Return Rented or Leased Property...................................... 202

18.07.01 Issuing a Bad Check .................................................................................................. 203

18.07.02 Affirmative Defense to Theft by Issuing a Bad Check ....................................... 204

18.08.01 Inferences Relating to Issuing a Bad Check .......................................................... 205

18.08.02 Inferences Relating to Theft of Property or Services by Issuing a Bad

Check ........................................................................................................................... 206

18.13 Unlawful Failure to Return a Motor Vehicle Subject to a Security Interest ..... 207

18.13.01 Affirmative Defense to Unlawful Failure to Return a Motor Vehicle

Subject to a Security Interest ................................................................................... 208

18.14 Theft of Means of Transportation .......................................................................... 209

18.15 Unlawful Use of Power of Attorney ...................................................................... 210

18.16(1) Merchant Defined ..................................................................................................... 211

18.16.01 Unlawful Manufacture or Sale of a Theft Detection Shielding Device ............ 211

18.16.02 Unlawful Possession of a Theft Detection Shielding Device ............................. 211

18.16.03 Unlawful Possession of a Theft Detection Device Remover ............................. 212

18.16.04 Unlawful Removal of a Theft Detection Shielding Device ................................ 212

18.17 Unlawful Possession, Use or Alteration of a Retail Sales Receipt or

Universal Product Code Label ................................................................................ 213

18.18 Misappropriation of Charter School Monies ........................................................ 213

18.19 Organized Retail Theft ............................................................................................. 214

18A1 Verdict Form (Theft & Unlawful Use of Power of Attorney) −For All

Offenses Occurring Prior to September 21, 2006................................................ 215

18A2 Verdict Form (Theft & Unlawful Use of Power of Attorney) − For All

Offenses Occurring After September 21, 2006 .................................................... 217

18B1 Verdict Form (Shoplifting) − For All Offenses Occurring Prior to

September 21, 2006 ................................................................................................... 219

18B2 Verdict Form (Shoplifting) − For All Offenses Occurring After

September 21, 2006 and Prior to September 19, 2007 ........................................ 220

18B3 Verdict Form (Shoplifting) − For All Offenses Occurring On or After

September 19, 2007 ................................................................................................... 221

18C Verdict Form (Misappropriation of Charter School Monies) ............................ 223

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 19

19.02 Robbery ....................................................................................................................... 225

19.03 Aggravated Robbery ................................................................................................. 225

19.04 Armed Robbery ......................................................................................................... 226

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 20

20.02 Forgery ........................................................................................................................ 229

20.02.C Forgery in Connection With a Drop House ......................................................... 230

20.03 Criminal Possession of a Forgery Device .............................................................. 230

20.04 Criminal Simulation ................................................................................................... 230

20.06 Criminal Impersonation ........................................................................................... 231

20.08 Taking the Identity of a Person or Entity .............................................................. 231

20.08.A Taking the Identity of a Person or Entity .............................................................. 232

20.08.B Knowingly Accepting the Identity of Another Person ........................................ 233

20.09.A Aggravated Taking the Identity of a Person or Entity......................................... 233

20.09.B Knowingly Accepting the Identity of Another Person ........................................ 235

20.10 Trafficking in the Identity of Another Person or Entity ..................................... 236

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 21

21.01.01 Cancelled or Revoked Credit Card Defined .......................................................... 239

21.01.02 Cardholder Defined .................................................................................................. 239

21.01.03 Credit Card Defined .................................................................................................. 240

21.01.04 Expired Credit Card Defined .................................................................................. 240

21.01.05 Incomplete Credit Card Defined ............................................................................ 241

21.01.06 Issuer Defined ............................................................................................................ 241

21.01.07 Merchant Defined ..................................................................................................... 241

21.01.08 Participating Party Defined ...................................................................................... 242

21.01.09 Receives or Receiving Defined ................................................................................ 242

21.01.10 Reencoder Defined ................................................................................................... 243

21.01.11 Scanning Device Defined ......................................................................................... 243

21.02 Theft of a Credit Card or Obtaining a Credit Card by Fraudulent Means ....... 243

21.02-1 Affirmative Defense to Theft of a Credit Card or Obtaining a Credit

Card by Fraudulent Means ....................................................................................... 245

21.03 Receipt of Anything of Value Obtained by Fraudulent Use of a Credit

Card ............................................................................................................................. 246

21.04 Forgery of Credit Card ............................................................................................. 247

21.05 Fraudulent Use of a Credit Card ............................................................................. 248

21.06 Possession of Machinery, Plate or Other Contrivance ........................................ 249

21.07 False Statement as to Financial Condition or Identity ......................................... 250

21.08 Fraud by a Person Authorized to Provide Goods or Services ........................... 251

21.09-1 Credit Card Transaction Record Theft (Defendant-Merchant) ......................... 252

21.09-2 Credit Card Transaction Record Theft (Defendant Not a Merchant) .............. 252

21.10-1 Unlawful Use of Scanning Device or Reencoder ................................................. 253

21.10-2 Unlawful Possession of Scanning Device or Reencoder ..................................... 254

21.03A Verdict Form − Receipt of Anything of Value by Fraudulent Use of a

Credit Card ................................................................................................................. 255

TABLE OF CONTENTS

21.05A Verdict Form − Fraudulent Use of a Credit Card ................................................ 256

21.09A Verdict Form – Credit Card Transaction Record Theft − No Scheme or

Course of Conduct Alleged ..................................................................................... 257

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 22

22.04 Defrauding Secured Creditors ................................................................................. 259

22.05 Defrauding Judgment Creditors .............................................................................. 259

22.06 Fraud in Insolvency................................................................................................... 260

22.07 Receiving Deposits in an Insolvent Financial Institution ................................... 260

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 23

23.01.A.01 Collect an Extension of Credit Defined ................................................................ 263

23.01.A.02 Creditor Defined ....................................................................................................... 263

23.01.A.03 Debtor Defined ......................................................................................................... 263

23.01.A.04 Extend Credit Defined ............................................................................................. 263

23.01.A.05 Extortionate Extension of Credit Defined ............................................................ 263

23.01.A.06 Extortionate Means Defined ................................................................................... 263

23.01.A.07 Repayment of Any Extension of Credit Defined ................................................. 264

23.01.B.01 Dealer in Property Defined ..................................................................................... 264

23.01.B.02 Stolen Property Defined ........................................................................................... 264

23.01.B.03 Traffic Defined .......................................................................................................... 264

23.01.C.01 Animal Activity Defined .......................................................................................... 264

23.01.C.02 Animal Facility Defined............................................................................................ 265

23.01.C.03 Animal or Ecological Terrorism Defined .............................................................. 265

23.01.C.04 Biological Agent Defined ......................................................................................... 265

23.01.C.05 Combination Defined ............................................................................................... 265

23.01.C.06 Communication Service Provider Defined ........................................................... 265

23.01.C.07 Criminal Syndicate Defined ..................................................................................... 266

23.01.C.08 Explosive Agent Defined ......................................................................................... 266

23.01.C.09 Material Support or Resources Defined ................................................................ 266

23.01.C.10 Public Establishment Defined ................................................................................. 266

23.01.C.11 Research Facility Defined ........................................................................................ 266

23.01.C.12 Terrorism Defined .................................................................................................... 266

23.01.C.13 Toxin Defined ............................................................................................................ 267

23.01.C.14 Vector Defined .......................................................................................................... 267

23.01.C.15 Weapon of Mass Destruction Defined .................................................................. 267

23.01.D.01 Control Defined ........................................................................................................ 268

23.01.D.02 Enterprise Defined .................................................................................................... 268

23.01.D.03 Financial Institution Defined................................................................................... 268

23.01.D.04 Racketeering Defined................................................................................................ 268

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

23.01.D.05 Records Defined ........................................................................................................ 270

23.01.E.01 Access Defined .......................................................................................................... 270

23.01.E.02 Access Device Defined ............................................................................................. 270

23.01.E.03 Computer Defined .................................................................................................... 270

23.01.E.04 Computer Contaminant Defined ............................................................................ 270

23.01.E.05 Computer Program Defined .................................................................................... 271

23.01.E.06 Computer Software Defined.................................................................................... 271

23.01.E.07 Computer System Defined ....................................................................................... 271

23.01.E.08 Critical Infrastructure Resource Defined ............................................................... 271

23.01.E.09 False or Fraudulent Pretense Defined .................................................................... 271

23.01.E.10 Financial Instrument Defined ................................................................................. 271

23.01.E.11 Network Defined ....................................................................................................... 272

23.01.E.12 Property Defined ....................................................................................................... 272

23.01.E.13 Proprietary or Confidential Computer Security Information Defined ............. 272

23.01.E.14 Services Defined ........................................................................................................ 272

23.05 Permissible Inferences Relating to Theft under A.R.S. §§ 13-802(A)(5)

and 13-1814(A)(5)...................................................................................................... 272

23.06 Possession of Altered Property ............................................................................... 274

23.07.01 Trafficking in Stolen Property in the Second Degree .......................................... 274

23.07.02 Trafficking in Stolen Property in the First Degree ............................................... 275

23.08.A Participating in a Criminal Syndicate ...................................................................... 276

23.08.A.5 Involving a Minor in Participating in a Criminal Syndicate ................................ 277

23.08.C Assisting a Criminal Syndicate ................................................................................. 278

23.08.01 Terrorism .................................................................................................................... 278

23.08.01.A.4 Terrorism (Weapon of Mass Destruction) ........................................................... 281

23.08.02.A Making a Terrorist Threat ........................................................................................ 281

23.08.02.B False Reporting of Terrorism .................................................................................. 282

23.08.03 Unlawful Use of Infectious Biological Substance or Radiological Agent ......... 282

23.09 Bribery of a Sports Participant ................................................................................ 284

23.10 Fraudulent Schemes and Artifices .......................................................................... 284

23.11 Willful Concealment.................................................................................................. 285

23.12A Illegal Control of an Enterprise............................................................................... 286

23.12B Illegally Conducting an Enterprise .......................................................................... 286

23.12C(1) Illegal Control of an Enterprise Utilizing a Minor ............................................... 287

23.12C(2) Illegally Conducting an Enterprise Utilizing a Minor .......................................... 287

23.16.A.1 Computer Tampering ............................................................................................... 288

23.16.A.2 Computer Tampering ............................................................................................... 288

23.16.A.3 Computer Tampering ............................................................................................... 290

23.16.A.4 Computer Tampering ............................................................................................... 290

23.16.A.5 Computer Tampering ............................................................................................... 291

23.16.A.7 Computer Tampering ............................................................................................... 292

TABLE OF CONTENTS

23.16.A.8 Computer Tampering ............................................................................................... 293

23.16.E Critical Infrastructure Instruction ........................................................................... 293

23.16.01 Unlawful Possession of an Access Device ............................................................ 294

23.16.01(B) Permissible Inference ................................................................................................ 296

23.16.02 Unauthorized Release of Proprietary or Confidential Computer Security

Information ................................................................................................................ 296

23.16.02.D Critical Infrastructure Instruction ........................................................................... 297

23.17.A Money Laundering in the First Degree .................................................................. 298

23.17.B Money Laundering in the Second Degree ............................................................. 299

23.17.C Money Laundering in the Third Degree ................................................................ 300

23.19.01 Smuggling of Human Beings ................................................................................... 301

23.19.02 Additional Finding Regarding Human Smuggling (with Table of

Consanguinity) ........................................................................................................... 301

23.20.01 Residential Mortgage Fraud ..................................................................................... 302

23.20.02 Pattern of Residential Mortgage Fraud .................................................................. 302

23.21.A Participating in a Criminal Street Gang.................................................................. 303

23.21.B Assisting a Criminal Street Gang ............................................................................ 304

23.22 Unlawful Transaction Involving Drop Houses .................................................... 305

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 24

24.01 Dissemination of Personal Information on the World Wide Web ................... 307

24.05 Compounding ............................................................................................................ 308

24.07 Tampering with a Public Record ............................................................................ 308

24.08 Securing the Proceeds of an Offense ..................................................................... 309

24.09 Obstructing Criminal Investigations or Prosecutions ......................................... 309

24.11 Impersonating a Peace Officer ................................................................................ 309

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 25

25.01.1 Contraband Defined ................................................................................................. 311

25.01.2 Correctional Facility Defined .................................................................................. 311

25.01.3 Custody Defined ........................................................................................................ 311

25.01.4 Escape Defined .......................................................................................................... 311

25.02 Escape in the Third Degree ..................................................................................... 312

25.03 Escape in the Second Degree .................................................................................. 312

25.04 Escape in the First Degree ....................................................................................... 313

25.05 Promoting Prison Contraband ................................................................................ 313

25.07 Failure to Appear in the First Degree .................................................................... 314

25.08 Resisting Arrest .......................................................................................................... 314

25.08(A)(3) Resisting Arrest (Passive Resistance) ...................................................................... 315

25.081 Defense to Resisting Arrest .............................................................................................. 316

25.12 Hindering Prosecution in the First Degree ........................................................... 316

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

25.14 Promoting Secure Care Facility Contraband ......................................................... 317

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 26

26.01(1) Employee Defined .................................................................................................... 319

26.01(2) Employer Defined ..................................................................................................... 319

26.01(3) Party Officer Defined ............................................................................................... 319

26.02 Bribery of a Public Servant or Party Officer ......................................................... 319

26.03 Trading in Public Office ........................................................................................... 320

26.05 Commercial Bribery Defined ................................................................................... 320

26.05 Commercial Bribery − Form of Verdict ................................................................ 321

26.06 Offer to Exert Improper Influence on Public Officer or Employee for

Consideration ............................................................................................................. 321

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 27

27.01(1) Material Defined ........................................................................................................ 323

27.01(2) Statement Defined ..................................................................................................... 323

27.01(3) Sworn Statement Defined ........................................................................................ 323

27.02(A) Perjury ........................................................................................................................ 323

27.02(B) Perjury by Inconsistent Statements......................................................................... 324

27.03 False Swearing ............................................................................................................ 324

27.06 Limitation on Defenses ............................................................................................ 325

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 28

28.01(1) Juror Defined ............................................................................................................. 327

28.01(2) Official Proceeding Defined ................................................................................... 327

28.01(3) Physical Evidence Defined ...................................................................................... 327

28.01(4) Testimony Defined.................................................................................................... 327

28.01(5) Threat Defined ........................................................................................................... 327

28.02 Influencing a Witness ................................................................................................ 328

28.03 Receiving a Bribe by a Witness ................................................................................ 328

28.04 Tampering with a Witness ........................................................................................ 329

28.05 Influencing a Juror .................................................................................................... 329

28.06 Receiving a Bribe by a Juror .................................................................................... 330

28.07 Jury Tampering .......................................................................................................... 330

28.08 Misconduct by a Juror .............................................................................................. 330

28.09 Tampering with Physical Evidence ......................................................................... 331

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 29

29.03 Riot .............................................................................................................................. 333

29.04 Disorderly Conduct ................................................................................................... 333

TABLE OF CONTENTS

29.07 False Reporting .......................................................................................................... 334

29.10 Cruelty to Animals .................................................................................................... 335

29.10.01 Animal Fighting ......................................................................................................... 336

29.10.02 Presence at Animal Fight ......................................................................................... 337

29.10.03 Cockfighting ............................................................................................................... 337

29.10.06 Defense to Cruelty to Animals and Bird Fighting ................................................ 337

29.11 Interference with or Disruption of an Educational Institution.......................... 338

29.12 Unlawful Introduction of Disease or Parasite ...................................................... 339

29.21B Harassment of a Public Officer or Employee ...................................................... 339

29.21.01 Aggravated Harassment............................................................................................ 340

29.22A Unlawful Interference with Emergency Public Safety Land Mobile Radio

Frequency Transmissions ......................................................................................... 341

29.23 Stalking ........................................................................................................................ 342

29.25 Hoax ............................................................................................................................ 343

29.26 Abandonment or Concealment of a Dead Body .................................................. 344

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 30

30.05.A Interception of Communications; Installation of Pen Register or Trap

and Trace Device ....................................................................................................... 345

30.05.B Installation of a Pen Register or Trap and Trace Device .................................... 345

30.06 Divulging Communication Service Information .................................................. 346

30.08 Possession of Interception Device ......................................................................... 347

30.19.A. Surreptitious Recording ............................................................................................ 348

30.19.B. Disclosure of Surreptitious Recording ................................................................... 348

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 31

31.01.01 Deadly Weapon Defined .......................................................................................... 351

31.01.02 Deface Defined .......................................................................................................... 351

31.01.03 Explosive Defined ..................................................................................................... 351

31.01.04 Firearm Defined ........................................................................................................ 351

31.01.05 Improvised Explosive Device Defined .................................................................. 351

31.01.06 Occupied Structure Defined .................................................................................... 351

31.01.07 Prohibited Possessor Defined ................................................................................. 351

31.01.08 Prohibited Weapon Defined .................................................................................... 352

31.01.09 Trafficking Defined ................................................................................................... 356

31.02.01 Public Establishment Defined ................................................................................. 356

31.02.02 Public Event Defined ............................................................................................... 356

31.02.03 School Defined .......................................................................................................... 357

31.02.04 School Grounds Defined ......................................................................................... 357

31.07 Unlawful Discharge of Firearms ............................................................................. 357

31.07.01 Municipality Defined ................................................................................................ 357

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

31.07.02 Properly Supervised Range Defined ....................................................................... 358

31.16.01 Body Armor Defined ................................................................................................ 358

31.17.01 Authorized Remote Stun Gun Defined ................................................................. 358

31.17.02 Remote Stun Gun Defined ...................................................................................... 359

31.023 Misconduct Involving Weapons (Prohibited Weapon) ....................................... 359

31.023-A Misconduct Involving Weapons (Prohibited Weapon) ....................................... 361

31.023-B Misconduct Involving Weapons (Prohibited Weapon Involving Dry Ice) ...... 363

31.024 Misconduct Involving Weapons (Prohibited Possessor) .................................... 364

31.025 Misconduct Involving Weapons (Selling or Transferring Deadly

Weapon to Prohibited Possessor) ........................................................................... 366

31.026 Misconduct Involving Weapons (Defacing a Deadly Weapon) ......................... 367

31.027 Misconduct Involving Weapons (Possessing a Defaced Deadly Weapon) ...... 367

31.028 Misconduct Involving Weapons (Use or Possession of Deadly Weapon

During Commission of Drug Offense) .................................................................. 368

31.029 Misconduct Involving Weapons (Discharging Firearm at Occupied

Structure) .................................................................................................................... 369

31.0212 Misconduct Involving Weapons (Possessing Deadly Weapon on School

Grounds Felony Allegation) .................................................................................... 370

31.0213 Misconduct Involving Weapons (Carrying Deadly Weapon in Nuclear or

Hydroelectric Plant) .................................................................................................. 371

31.0214 Misconduct Involving Weapons (Supplying Firearm to Another Person

Who Will Commit Felony) ....................................................................................... 371

31.0215 Misconduct Involving Weapons (Using Deadly Weapon in Terrorism

Act) .............................................................................................................................. 372

31.0216 Misconduct Involving Weapons (To Further a Criminal Street Gang) ............ 372

31.02(A)(4) Affirmative Defense to Misconduct Involving Weapons Under

A.R.S. § 13-3101(A)(4) .............................................................................................. 373

31.02(A)(6) Affirmative Defense to Misconduct Involving Weapons Under

A.R.S. § 13-3101(A)(6)(b) ......................................................................................... 374

31.02(A)(7) Affirmative Defense to Misconduct Involving Weapons Under

A.R.S. § 13-3101(A)(7)(a), (b), (c) or (d) ................................................................ 374

31.04 Depositing Explosives .............................................................................................. 375

31.07 Unlawful Discharge of Firearms ............................................................................. 375

31.09 Sale or Gift of Firearm to Minor ............................................................................ 376

31.10 Misconduct Involving Simulated Explosive Devices ........................................... 377

31.10.01 Interference on Placing or Sending a Simulated Explosive Device ................... 378

31.11 Minors Prohibited from Carrying or Possessing Firearms ................................. 378

31.13.01 Possession of Firearm by Adjudicated Delinquent .............................................. 379

31.13.02 Subsequent Possession of Firearm by Adjudicated Delinquent ......................... 380

31.16 Misconduct Involving Body Armor ....................................................................... 381

31.17 Misconduct Involving Remote Stun Gun .............................................................. 381

31.22 Misconduct Involving Remote Stun Gun .............................................................. 381

TABLE OF CONTENTS

31.129 Taking Prohibited Articles into Jail or Onto Jail Grounds ................................. 382

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 32 INSTRUCTIONS

32.01 Enticing a Person for Purpose of Prostitution ..................................................... 383

32.02 Procurement by False Pretenses for Purposes of Prostitution .......................... 383

32.03 Placing a Person in Prostitution .............................................................................. 384

32.04 Receiving Earnings of Prostitute ............................................................................ 384

32.05 Causing Spouse to Become Prostitute ................................................................... 385

32.06 Taking a Child for Purpose of Prostitution ........................................................... 386

32.07 Detention of Persons in a House of Prostitution for Debt ................................ 387

32.08 Maintaining or Operating House of Prostitution ................................................. 387

32.09 Pandering .................................................................................................................... 388

32.10 Transporting Persons for Purpose of Prostitution or Other Immoral

Purpose ....................................................................................................................... 389

32.11 Definitions ................................................................................................................. 390

32.12A Child Sex Trafficking ................................................................................................ 391

32.12B Child Prostitution ...................................................................................................... 392

32.14 Prostitution ................................................................................................................. 392

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 33 INSTRUCTIONS

33.01.01 Amusement Gambling Defined .............................................................................. 395

33.01.02 Conducted as a Business Defined ........................................................................... 396

33.01.03 Crane Game Defined ................................................................................................ 396

33.01.04 Gambling or Gamble Defined ................................................................................ 396

33.01.05 Player Defined ........................................................................................................... 396

33.01.06 Regulated Gambling Defined .................................................................................. 397

33.01.07 Social Gambling Defined ......................................................................................... 397

33.021 Exclusions................................................................................................................... 398

33.021.1 Tax Exempt Exclusions ........................................................................................... 399

33.03 Promotion of Gambling ........................................................................................... 399

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 34 INSTRUCTIONS

34.021 Possession of Peyote ................................................................................................. 401

34.022 Sale or Transfer of Peyote ........................................................................................ 401

34.023 Offer to Sell or Transfer Peyote ............................................................................. 402

34.024 Defense to Peyote Offenses .................................................................................... 402

34.03(A1) Unlawful Use of Vapor-Releasing Substance ....................................................... 402

34.03(A2) Sale, Transfer, Offer to Sell or Offer to Transfer a Vapor-Releasing

Substance .................................................................................................................... 402

34.03(A3) Unauthorized Sale, Transfer, Offer to Sell or Offer to Transfer a

Vapor-Releasing Substance ...................................................................................... 403

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

34.03(B) Failure to Keep Records of Vapor Releasing Glue .............................................. 404

34.03(C) Availability of Vapor-Releasing Glue Containing a Toxic Substance ............... 405

34.03(D) Sign Needed for Vapor-Releasing Substance ........................................................ 405

34.039 Defense to Vapor-Releasing Substance ................................................................. 406

34.03.01 Sale of Delivery of Nitrous Oxide to a Minor ...................................................... 406

34.04(A) Failure to Report the Sale, Transfer or Furnishing of a Precursor or

Regulated Chemical ................................................................................................... 406

34.04(C) Failure to Report the Sale, Transfer or Furnishing of a Precursor or

Regulated Chemical ................................................................................................... 409

34.04(D) Failure to Report the Receipt of a Precursor or Regulated Chemical

from Outside the State.............................................................................................. 410

34.04(F) Failure to Report the Suspicious Sale, Transfer or Furnishing of a

Precursor or Regulated Chemical ............................................................................ 410

34.04(G) Failure to Report the Theft, Disappearance or Loss of a Precursor or

Regulated Chemical ................................................................................................... 411

34.04(H) Failure to Maintain Records of a Precursor or Regulated Chemical ................. 412

34.04.01(A) Possession or Sale of Precursor Chemicals ........................................................... 412

34.04.01(B) Sale or Transfer or Furnishing of a Precursor Chemical by a Retailer .............. 414

34.04.01(C) Sale of a Precursor Chemical by a Retailer ............................................................ 414

34.04.01(D) Sale or Transfer or Furnishing of Precursor Chemicals by a Wholesaler ......... 415

34.04.01(E) Sale or Transfer or Furnishing of Precursor Chemicals by a

Manufacturer .............................................................................................................. 415

34.051 Possession or Use of Marijuana .............................................................................. 416

34.052 Possession of Marijuana for Sale ............................................................................. 417

34.053 Production of Marijuana .......................................................................................... 418

34.0541 Selling, Transporting, Importation, Transferring of Marijuana for Sale ........... 419

34.0542 Offering to Sell, Transport, Import or Transfer Marijuana for Sale ................. 419

34.061 Possession/Use of Prescription-Only Drug ......................................................... 420

34.062 Possession of Prescription-Only Drug for Sale .................................................... 421

34.063 Possession of Equipment and Chemicals to Manufacture Prescription-

Only Drug ................................................................................................................... 422

34.067(1) Sale, Transfer, or Importation of a Prescription-Only Drug .............................. 423

34.067(2) Offer to Sell, Offer to Transfer, Offer to Import a Prescription-Only

Drug ............................................................................................................................. 423

34.071 Possession of Dangerous Drug ............................................................................... 424

34.07.01 Manufacturing Methamphetamine Causing Injury to a Person under

Fifteen ......................................................................................................................... 424

34.072 Possession of Dangerous Drug for Sale ................................................................ 425

34.076 Obtaining Dangerous Drug by Fraud .................................................................... 426

34.0771 Selling, Transporting, Importing, Transferring of Dangerous Drug

For Sale ....................................................................................................................... 426

34.0772 Offering to Transport, Import, or Transfer Dangerous Drugs ......................... 427

TABLE OF CONTENTS

34.081 Possession or Use of a Narcotic Drug ................................................................... 427

34.082 Possession of Narcotic Drug for Sale .................................................................... 428

34.086 Obtaining Narcotics by Fraud ................................................................................. 428

34.0871 Transporting or Importing Narcotics for Sale; Selling, Transferring

Narcotic Drugs .......................................................................................................... 429

34.0872 Offering to Transport, Import, Sell, Transfer Narcotics .................................... 429

34.091 Involving or Using Minors in Drug Offenses ...................................................... 429

34.092 Involving or Using Minors in Drug Offenses ...................................................... 430

34.111 Sale or Transfer of Drugs in a Drug Free School Zone ...................................... 430

34.112 Possession or Use of Drugs in a Drug Free School Zone .................................. 431

34.113 Manufacture of Dangerous Drugs in a Drug Free School Zone ....................... 432

34.15 Possession of Drug Paraphernalia .......................................................................... 432

34.17 Use of Wire Communication or Electronic Communication in [Drug

Related] [Organized Crime Related] Transaction ................................................. 433

34.21.01 Using Building for Sale, Manufacture or Distribution of Dangerous or

Narcotic Drugs .......................................................................................................... 435

34.21.02 Fortification of a Building ........................................................................................ 435

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 34.1 INSTRUCTIONS

34.53 Manufacture or Distribution of Imitation Controlled Substance ...................... 437

34.54 Manufacture or Distribution of Imitation Prescription-Only Drug .................. 437

34.55 Manufacture or Distribution of Imitation Over-the-Counter Drug ................. 438

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 35 INSTRUCTIONS

35.01(1) Harmful to Minors Defined .................................................................................... 441

35.01(2) Item Defined .............................................................................................................. 441

35.01(3) Knowledge of Character Defined ........................................................................... 442

35.01(4) Nudity Defined .......................................................................................................... 442

35.01(5) Sadomasochistic Abuse Defined ............................................................................. 442

35.01(6) Sexual Activity Defined ............................................................................................ 442

35.01(7) Sexual Conduct Defined .......................................................................................... 442

35.01(8) Sexual Excitement Defined ..................................................................................... 443

35.01(9) Ultimate Sexual Acts Defined ................................................................................. 443

35.01(10) Prurient Defined ........................................................................................................ 443

35.02 Production, Publication, Sale, Possession, or Presentation of Obscene

Items ............................................................................................................................ 444

35.04 Coercing Acceptance of Obscene Articles or Publications ................................ 444

35.06 Furnishing Harmful Items to Minors ..................................................................... 445

35.061 Furnishing Harmful Items to Minors (Internet Activity) .................................... 445

35.07 Public Display of Explicit Sexual Materials ........................................................... 445

35.09 Duty to Report ........................................................................................................... 446

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

35.12 Obscene or Indecent Telephone Communications to Minors for

Commercial Purposes ............................................................................................... 447

35.13 Sale or Distribution of Material Harmful to Minors through Vending

Machines ..................................................................................................................... 447

35.131 Defenses to Sale or Distribution of Material Harmful to Minors

through Vending Machines ...................................................................................... 447

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 35.1 INSTRUCTIONS

35.51(1) Communication Service Provider Defined............................................................ 449

35.51(2) Computer Defined .................................................................................................... 449

35.51(3) Computer System Defined ....................................................................................... 449

35.51(4) Exploitive Exhibition Defined ................................................................................ 449

35.51(5) Minor Defined ........................................................................................................... 449

35.51(6) Network Defined ....................................................................................................... 449

35.51(7) Producing Defined .................................................................................................... 449

35.51(8) Remote Computing Service Defined ...................................................................... 450

35.51(9) Sexual Conduct Defined ........................................................................................... 450

35.51(10) Simulated Defined ..................................................................................................... 450

35.51(11) Visual Depiction Defined ......................................................................................... 450

35.52 Commercial Sexual Exploitation of a Minor ......................................................... 450

35.53 Sexual Exploitation of a Minor ............................................................................... 452

35.54 Luring a Minor for Sexual Exploitation ................................................................. 452

35.56 Permissible Inference ................................................................................................ 453

35.58 Admitting Minors to Public Displays of Sexual Conduct ................................... 453

35.59 Defense to Sexual Exploitation of a Minor ........................................................... 454

35.60 Aggravated Luring a Minor for Sexual Exploitation ............................................ 454

35.61 Unlawful Age Misrepresentation ............................................................................. 456

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 36 INSTRUCTIONS

36.01 Domestic Violence Offense Defined ..................................................................... 459

36.01.02 Aggravated Domestic Violence ............................................................................... 459

36.01.02 Special Verdict Form − Domestic Violence ......................................................... 460

36.03.01 Partial-Birth Abortion ............................................................................................... 461

36.06(A) Bigamy ......................................................................................................................... 462

36.06(B) Defenses to Bigamy .................................................................................................. 462

36.07 Marrying the Spouse of Another............................................................................. 463

36.08 Incest ........................................................................................................................... 463

36.09A Child Bigamy .............................................................................................................. 463

36.09B Defenses to Child Bigamy ........................................................................................ 464

36.20 Failure to Report ........................................................................................................ 464

36.23A Child Abuse or Vulnerable Adult Abuse ............................................................... 466

TABLE OF CONTENTS

36.23B Child Abuse or Vulnerable Adult Abuse ............................................................... 466

36.23D Emotional Abuse of a Vulnerable Adult ............................................................... 467

36.23.01 Vulnerable Adult Defined ........................................................................................ 468

36.28.11a Arizona Medical Marijuana Act – Registered Qualifying Patient ...................... 468

36.28.11b Arizona Medical Marijuana Act – Designated Caregiver .................................... 469

36.28.11c Arizona Medical Marijuana Act – Authority to Cultivate ................................... 470

36.28.11d Arizona Medical Marijuana Act – DUI Affirmative Defense ............................ 471

36.28.11e Arizona Medical Marijuana Act – Visiting Qualifying Patient ........................... 472

36.28.11f Arizona Medical Marijuana Act – Medical Use .................................................... 473

36.28.11g Arizona Medical Marijuana Act – Allowable Amount ........................................ 473

36.28.11h Arizona Medical Marijuana Act – Prohibited Locations ..................................... 474

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 37 INSTRUCTIONS

37.01(A)(1) Unlawful Use of Food Stamps ................................................................................ 475

37.01(A)(2) Unlawful Use of Counterfeit Food Stamps ........................................................... 475

37.01(A)(3) Unlawful Appropriation of Food Stamps ............................................................. 476

37.02(A)(4) Unlawful Use of Food Stamps ................................................................................ 476

37.02.01 Unlawful Excavating ................................................................................................. 477

37.04(A)(1)

& (2) Adding Poison to Food, Drink or Medicine ......................................................... 477

37.04(A)(3) Adding Harmful Substance to Food, Drink or Medicine ................................... 477

37.05(A)(1)

& 2 Unlawful Manufacturing or Distributing of Sounds or Images

from Recording Devices .......................................................................................... 478

37.05(A)(3) Unlawful Manufacturing or Distributing Transferred Sounds

& 4 or Images without Name of Manufacturer ........................................................... 479

37.05(A)(5) Unlawful Transferring a Performance ................................................................... 479

37.05(A)(6) Unlawful Distributing a Recorded Performance .................................................. 480

37.05(B) Defense to Offenses Under A.R.S. § 13-3705(A) ................................................ 481

37.05.01 Article Defined .......................................................................................................... 481

37.05.02 Distributing Defined ................................................................................................. 481

37.05.04 Manufacturing Defined ............................................................................................ 481

37.05.05 Owner Defined .......................................................................................................... 481

37.05.06 Phonorecord Defined ............................................................................................... 481

37.07(A)(1) Telecommunication Fraud ....................................................................................... 482

37.07(A)(2) Telecommunication Fraud ....................................................................................... 482

37.07(A)(3) Telecommunication Fraud ....................................................................................... 483

37.07(A)(4) Telecommunication Fraud ....................................................................................... 484

37.09 Manufacture, Sale or Distribution of Unauthorized Decoding Device ............ 485

37.09(C) Rebuttable Inference of Intent ................................................................................ 485

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

37.13(A) Consideration for Medical Referral ........................................................................ 486

37.13(B) Fraudulently Obtaining Medical or Health Coverage .......................................... 487

37.13(C) Fraudulently Obtaining Medical or Health-Care Coverage by Use of

False Identification .................................................................................................... 487

37.13(D) Counterfeiting or Altering Identification for the Purposes of Fraudulently

Obtaining Medical or Health-Care Coverage ........................................................ 488

37.13(E) Furnishing Identification for the Purposes of Fraudulently Obtaining

Medical or Health Care Coverage .......................................................................... 488

37.14 Aggravated or Multiple Insurance Code Violations ............................................. 489

37.16 Failure to Give Notice of Dangerous-Crimes-Against-Children

Conviction .................................................................................................................. 489

37.19 Fraudulently Obtaining Wireless Telecommunications Services or Devices;

Manufacturing, Distributing and Selling Unauthorized Decoding Devices ..... 490

37.19(C) Rebuttable Inference Regarding A.R.S. § 13-3719 ............................................... 491

37.21(A)(1) Unlawfully Applying Tattoos, Brands, Scarifications and Piercings to

Minors ......................................................................................................................... 491

37.21(A)(2) Use of Unsterilized Needle to Tattoo or Pierce ................................................... 492

37.21(A)(3) Using an Unauthorized Location to Tattoo, Brand, Scarify, Implant,

Mutilate or Pierce ...................................................................................................... 492

37.21(A)(4) Administering Anesthesia Without a License ....................................................... 492

37.21(B) Exception .................................................................................................................... 493

37.21(C) Defense ....................................................................................................................... 493

37.21(E) Definitions .................................................................................................................. 493

37.24 Obtaining Utility Services by Fraud ........................................................................ 493

37.24(B) Rebuttable Inference ................................................................................................. 494

37.25 Interference with Monitoring Devices ................................................................... 495

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 38

38.21 Failure to Register a Sex Offender .......................................................................... 497

38.22 Failure to Notify of Change of Address or Change of Name ............................ 497

38.81 Arrest; How Made; Force and Restraint ................................................................ 498

38.87 Method of Arrest by Officer by Virtue of a Warrant .......................................... 498

38.88 Method of Arrest by Officer Without a Warrant ................................................. 499

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 43

43.4702 Conducting a Chop Shop ........................................................................................ 501

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 44

44.4802 Possession or Sale of Cloned Cellular or Wireless Telephones .......................... 503

TABLE OF CONTENTS

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 45

45.4902 Criminal Trespass on a Commercial Nuclear Generating Facility ..................... 505

45.4903 Justification Defense Armed Nuclear Security Guard ......................................... 505

STATUTORY CRIMINAL INSTRUCTIONS − TITLE 13, CHAPTER 46

46.5002 Criminal Trespass on a Military Reservation or Facility ...................................... 509

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 28

28.622.1 Unlawful Flight from Pursuing Law Enforcement Vehicle .............. 511

28.661 Leaving the Scene of an Injury or Fatal Accident ............................... 511

28.6611 Knowledge of Injury ................................................................................ 512

28.6612 Leaving the Scene of an Injury or Fatal Accident − Form of

Verdict ........................................................................................................ 512

28.662 Leaving the Scene of an Accident ......................................................... 513

28.663 Driver’s Duty to Give Information and Assistance ............................ 514

28.675 Causing Death by Use of Vehicle .......................................................... 514

28.676 Causing Serious Physical Injury by Use of a Vehicle .......................... 516

28.1321 Refusal to Submit to Test ....................................................................... 518

28.1381(A)(1)-APC Actual Physical Control Defined ........................................................... 518

28.1381(A)(1)-1 Driving or Actual Physical Control While Under the Influence ....... 519

28.1381(A)(2) Driving or Actual Physical Control With an Alcohol

Concentration of 0.08 or More Within Two Hours of Driving ....... 520

28.1381(A)(3) Driving or Actual Physical Control While There Is a Drug in

the Defendant’s Body .............................................................................. 521

28.1381(A)(4) Driving or Actual Physical Control of a Commercial Motor

Vehicle With an Alcohol Concentration of 0.04 or More ................. 521

28.1381(D) Affirmative Defense to Driving or Actual Physical Control While

There Is a Drug in the Defendant’s Body ............................................ 522

28.1381(G) Presumptions of Intoxication ................................................................. 523

28.1381-MJ Registered Qualifying Patient (Medical Marijuana) ............................. 524

28.1381-MS Mental State ............................................................................................... 524

28.1382(A) Driving or Actual Physical Control While Under the Extreme

Influence of Intoxicating Liquor ........................................................... 524

28.1383(A)(1)-1 Aggravated Driving or Actual Physical Control While Under

the Influence While [License][Privilege to Drive] Was

[Suspended][Canceled][Revoked][Refused][Restricted]...................... 525

28.1383(A)(1)-2

Aggravated Driving or Actual Physical Control While Under

the Influence While [License][Privilege to Drive] Was

[Suspended][Canceled][Revoked][Refused][Restricted] With

Lesser-Included Offense of Driving or Actual Physical

Control while Under the Influence ....................................................... 527

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

28.1383(A)(1)-3 Aggravated Driving or Actual Physical Control With an

Alcohol Concentration of 0.08 While [License][Privilege to

Drive] Was [Suspended][Canceled][ Revoked][Refused]

[Restricted] ................................................................................................. 527

28.1383(A)(1)-4 Aggravated Driving or Actual Physical Control While There

Is a Drug in the Defendant’s Body While [License][Privilege

to Drive] Was [Suspended][Canceled][Revoked][Refused]

[Restricted] ................................................................................................. 529

28.1383(A)(2)-1 Aggravated Driving or Actual Physical Control While Under

the Influence − Two Convictions Within Eighty-Four

Months) ...................................................................................................... 530

28.1383(A)(2)-2 Aggravated Driving or Actual Physical Control With an

Alcohol Concentration of 0.08 or More Within Two Hours of

Driving − Two Convictions Within Eighty-Four Months ................. 531

28.1383(A)(2)-3 Aggravated Driving or Actual Physical Control While There

Is a Drug in the Defendant’s Body − Two Convictions Within

Eighty-Four Months ................................................................................ 532

28.1383(A)(3)-1 Aggravated Driving or Actual Physical Control While Under

the Influence While There Is a Person Under the Age of

Fifteen Years in the Vehicle .................................................................... 533

28.1383(A)(3)-2 Aggravated Driving or Actual Physical Control With an

Alcohol Concentration of 0.08 or More Within Two Hours of

Driving While There Is a Person Under the Age of Fifteen

Years in the Vehicle ................................................................................. 534

28.1383(A)(3)-3 Aggravated Driving or Actual Physical Control While There

Is a Drug in the Defendant’s Body While There Is a Person

Under the Age of Fifteen Years in the Vehicle ................................... 534

28.1383(A)(4)-1 Aggravated Driving or Actual Physical Control While Subject

to an Interlock Device and Under the Influence ................................ 535

28.1383(A)(4)-2 Aggravated Driving or Actual Physical Control While Subject

to an Interlock Device and an Alcohol Concentration of 0.08

or More within Two Hours of Driving ................................................. 535

28.1383(A)(4)-3 Aggravated Driving or Actual Physical Control While Subject

to an Interlock Device and There Is a Drug in the

Defendant’s Body ..................................................................................... 536

28.1383(A)(4)-4 Aggravated Driving or Actual Physical Control While Under

the Extreme Influence of Intoxicating Liquor While Subject

to an Interlock Device ............................................................................. 536

28.1383(A)(5)-1 Aggravated Driving or actual Physical Control While Driving

the Wrong Way on a Highway and Under the Influence ................... 536

28.1383(A)(5)-2 Aggravated Driving or Actual Physical Control While Driving

the Wrong Way on a Highway and an Alcohol Concentration

of 0.08 or More Within Two Hours of Driving .................................. 537

TABLE OF CONTENTS

28.1383(A)(5)-3 Aggravated Driving or Actual Physical Control While Driving

the Wrong Way on a Highway and There Is a Drug in the

Defendant’s Body ..................................................................................... 538

28.1383(A)(5)-4 Aggravated Driving or actual Physical Control while Driving

the Wrong Way on a Highway and a Commercial Motor

Vehicle with an Alcohol Concentration of 0.04 or More .................. 538

28.1383(A)(5)-5 Aggravated Driving or Actual Physical Control While Driving

the Wrong Way on a Highway Under the Extreme Influence

of Intoxicating Liquor ............................................................................. 539

28.1383(B) Eighty-Four Month Provision ................................................................ 540

28.3318 Presumption of Receipt of Notice ........................................................ 540

36.2802(D) Affirmative Defense of Insufficient Concentration of

Marijuana to Cause Impairment............................................................. 541

RIMINAL STATUTORY INSTRUCTIONS, TITLE 5

5.395(A)(1)-APC Actual Physical Control Defined .............................................................. 543

5.395(A)(1) Operating or Actual Physical Control of a Motorized

Watercraft While Under the Influence ...................................................... 544

5.395(A)(2) Operating or Actual Physical Control of a Motorized

Watercraft With an Alcohol Concentration of 0.08 or

More Within Two Hours of Operating .................................................... 545

5.395(A)(3) Operating or Actual Physical Control of a Motorized

Watercraft While There Is a Drug in the Defendant’s

Body ................................................................................................................ 546

5.395(A)(4) Operating or Actual Physical Control of a Commercial

Motorized Watercraft With an Alcohol Concentration

of 0.04 or More ............................................................................................. 546

5.395(C) Affirming Defense to Operating or Actual Physical

Control While There Is a Drug in the Defendant’s Body ...................... 547

5.395(F) Presumptions of Intoxication ..................................................................... 547

5.397(A)(1) & (2) Operating or Actual Physical Control of a Motorized

Watercraft While Under the Extreme Influence of

Intoxicating Liquor ....................................................................................... 548

5.396 (A)(1)-1 Aggravated Operating or Actual Physical Control of a

Motorized Watercraft While Under the Influence −

Three or More Convictions Within Eighty-Four

Months ........................................................................................................... 548

5.396(A)(1)-2 Aggravated Operating or Actual Physical Control of

a Motorized Watercraft With an Alcohol

Concentration of 0.08 or More Within Two Hours

of Operating − Three Convictions Within Eighty-

Four Months ................................................................................................. 549

5.396(A)(1)-3 Aggravated Operating or Actual Physical Control of

a Motorized Watercraft While There Is a Drug in the

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

Defendant’s Body − Three or More Convictions

Within Eighty-Four Months ....................................................................... 550

5.396(A)(2)(a)-1 Aggravated Operating or Actual Physical Control of

a Motorized Watercraft While Under the Influence

While There Is a Person Under the Age of Fifteen

Years Aboard the Motorized Watercraft .................................................. 551

5.396(A)(2)(a)-2 Aggravated Operating or Actual Physical Control of

a Motorized Watercraft With an Alcohol

Concentration of 0.08 or More Within Two Hours

of Operating While There Is a Person Under the Age

of Fifteen Years Aboard the Motorized Watercraft ................................ 552

5.396(A)(2)(a)-3 Aggravated Operating or Actual Physical Control of

a Motorized Watercraft Under the Influence of

Intoxicating Liquor or Drugs While There Is a

Person Under Fifteen Aboard The Motorized

Watercraft ...................................................................................................... 552

5.396(A)(2)(b)-1 Aggravated Operating or Actual Physical Control of

a Motorized Watercraft While Under the Influence

While There Is a Person Under the Age of Fifteen

Years Aboard The Motorized Watercraft With One

Prior ................................................................................................................ 553

5.396(A)(2)(b)-2 Aggravated Operating or Actual Physical Control

a Motorized Watercraft With an Alcohol

Concentration of 0.08 or More Within Two

Hours of Operating While There Is a Person

Under the Age of Fifteen Years Aboard the

Motorized Watercraft With One Prior ...................................................... 554

5.396(A)(2)(b)-3 Aggravated Operating or Actual Physical Control

of a Motorized Watercraft Under the Influence of

Intoxicating Liquor or Drugs While There Is a

Person Under Fifteen Aboard – With One Prior .................................... 554

5.396(A)(2)(c) Aggravated Operating or Actual Physical Control

of a Motorized Watercraft While Under the

Extreme Influence While There Is a Person

Under the Age of Fifteen Years in the Motorized

Watercraft ...................................................................................................... 555

36.2802(D) Affirmative Defense of Insufficient Concentration of

Marijuana to Cause Impairment ................................................................. 556

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 14

14.5101.01 Definition of Incapacitated Person......................................................................... 559

TABLE OF CONTENTS

NON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 25

25.500(1) Support Defined ........................................................................................................ 561

25.500(2) Arrearage Defined ..................................................................................................... 561

25.511 Failure of Parent to Provide for Child ................................................................... 561

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 35

35.301 Misuse of Public Monies ................................................................................................... 563

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 38

38.101 Definition of “Officer” or “Public Officer” ......................................................... 565

38.421 Stealing, Destroying, Altering or Secreting a Public Record .............................. 565

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 39

39.161 Presentment of False Instrument for Filing .......................................................... 567

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 41

41.1661 Correctional Officer Defined .................................................................................. 569

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 44

44.1453.B.1 Use of Counterfeit Marks with One Prior Conviction ........................................ 571

44.1453.B.2 Use of Counterfeit Marks......................................................................................... 572

44.1453.D.1 Use of Counterfeit Marks with Two Prior Convictions ...................................... 573

44.1453.D.2 Use of Counterfeit Marks......................................................................................... 574

44.1453.C Manufacturing or Producing Items or Services with Counterfeit Marks ......... 576

44.1455 Use of Unauthorized Copy of Computer Software ............................................. 577

ON-CRIMINAL STATUTORY INSTRUCTIONS, TITLE 46

46-451.01 Abuse Defined ........................................................................................................... 579

46-451.02 De Facto Conservator Defined ............................................................................... 579

46.451.03 De Facto Guardian Defined .................................................................................... 579

46.451.04 Exploitation Defined ................................................................................................ 579

46.45.05 Informed Consent Defined ..................................................................................... 580

46.45.06 Neglect Defined ......................................................................................................... 580

46.451.09 Vulnerable Adult Defined ........................................................................................ 580

46.455 Endangerment of a Vulnerable Adult .................................................................... 581

46.456.04 Position of Trust and Confidence Defined ........................................................... 581

ON-CAPITAL AGGRAVATING CIRCUMSTANCES INSTRUCTIONS ...................................... 583

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

CAPITAL CASE SENTENCING INSTRUCTIONS

Foreword to the Court; Introduction to Capital Case Sentencing Instructions

(Not to Be Read to the Jury) .......................................................................................................... 587

Capital Case 1.0 Degree of Participation Instruction (Enmund/Tison) ............................. 588

Capital Case 1.0.1 Accomplice Liability ................................................................................... 592

Eligibility Phase

Capital Case 1.1 Nature of the Hearing ................................................................................ 594

Capital Case 1.1A Nature of the Hearing – For Offenses Occurring On or After

August 2, 2012 ............................................................................................. 595

Capital Case 1.2 Duties of the Jury ........................................................................................ 596

Capital Case 1.3 Evidence ....................................................................................................... 596

Capital Case 1.4 Burden of Proof .......................................................................................... 597

Capital Case 1.5 Definition of Proof Beyond a Reasonable Doubt ................................. 597

Capital Case 1.5.1 Order of Aggravation Phase ...................................................................... 598

Capital Case 1.6 Aggravating Circumstances ....................................................................... 598

Capital Case 1.6(a)(1) Definition of “Serious Offenses” (for offenses occurring on or

after July 17, 1993) ...................................................................................... 600

Capital Case 1.6(b) Definition of “Grave Risk of Death to Another” .......................................... 602

Capital Case 1.6(c) Definition of “Consideration for the Receipt, or in Expectation of

the Receipt, of Anything of Pecuniary Value” ................................................ 604

Capital Case 1.6(d) Definition of “Especially Cruel, Heinous or Depraved” ...................... 606

Capital Case 1.6(e) Definition of “During the Commission of the Offense” ..................... 612

Capital Case 1.6(f) Definition of “Cold, Calculated Manner Without Pretense of

Moral or Legal Justification ....................................................................... 612

Capital Case Verdict Form 1 ......................................................................................................... 614

Penalty Phase

Capital Case 2.1 Nature of Hearing and Duties of Jury ..................................................... 617

Capital Case 2.2 Evidence ....................................................................................................... 617

Capital Case 2.3 Mitigation...................................................................................................... 618

Capital Case 2.4 Duty to Consult with One Another ......................................................... 619

Capital Case 2.5 Victim Impact Information ....................................................................... 620

Capital Case 2.6 Mitigation Assessment and the Sentence Burden of Proof .................. 620

Capital Case 2.7 Order of This Phase ................................................................................... 622

Capital Case 2.8 Jury Not to Consider Financial Cost of Penalty ..................................... 623

Capital Case 2.9 State’s Evidence ........................................................................................... 623

Capital Case 2.10 Intellectual Disability .................................................................................. 623

Mitigation

Foreword to the Court − Introduction to Statutory Mitigating Circumstance

Instructions (Not To Be Read To The Jury) ............................................................................................ 625

Capital Case 3.1 Mitigation Evidence .................................................................................... 626

TABLE OF CONTENTS

Capital Case 3.2 Significant Impairment ............................................................................... 626

Capital Case 3.3 Duress ........................................................................................................... 627

Capital Case 3.4 Relatively Minor Participation ................................................................... 627

Capital Case 3.5 Death Not Reasonably Foreseeable ......................................................... 628

Capital Case 3.6 Age ................................................................................................................ 628

Capital Case Verdict Form 2 .......................................................................................................... 629

ABLE OF AUTHORITIES ............................................................................................................... 631

PRELIMINARY CRIMINAL INSTRUCTIONS

Preliminary Criminal 1 − Importance of Jury Service

Jury service is an important part of our system of justice, with a long and distinguished

tradition in American law. From the beginning, American law has viewed the jury system as

an effective means of drawing on the collective wisdom, experience, and fact-finding abilities

of persons such as yourselves. While it may be an occasional inconvenience, or worse, jury

service is an important responsibility for you, one, which I am sure, you will take seriously.

SOURCE: Bench Book for Superior Court Judges; Preliminary 2, RAJI (Civil) 5th.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

SE NOTE: The trial judge may wish to consider incorporating this instruction as the first

paragraph of Preliminary Criminal 2.

Preliminary Criminal 2 − Duty of Jurors

Ladies and Gentlemen:

Now that you have been sworn, I will briefly tell you something about your duties as

jurors and give you some instructions. At the end of the trial I will give you more detailed

instructions, and those instructions will control your deliberations.

It will be your duty to decide the facts. You must decide the facts only from the evidence

produced in court. You must not speculate or guess about any fact. In deciding this case, you

are not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public

opinion, or public feeling. Race, color, religion, national ancestry, gender or sexual

orientation should not influence you.

You will hear the evidence, decide the facts, and then apply the law I will give to you to

those facts. That is how you will reach your verdict. In doing so you must follow that law

whether you agree with it or not.

You must not take anything I may say or do during the trial as indicating any opinion

about the facts. You, and you alone, are the judges of the facts.

SOURCE: Capital Case Instruction 1.2.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

Preliminary Criminal 3 − Evidence

You will decide what the facts are from the evidence presented here in court. That

evidence will consist of testimony of witnesses, any documents and other things received

into evidence as exhibits, and any evidence stipulated to by the parties or that you are

instructed to consider.

[You may hear reference to exhibits that are not admitted and are not asked to be

admitted. These exhibits are not admitted as evidence, but the information from them that is

testified to by witnesses is evidence that you may consider.]

You will decide the credibility of the witnesses and weight to be given to any evidence

presented in the case, whether it is direct evidence or circumstantial evidence.

SOURCE: Preliminary 3, RAJI (Civil) 5th modified.

SE NOTE: Use of bracketed paragraph two is left to the discretion of the judge.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 4 − Direct and Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is a physical exhibit or the

testimony of a witness who saw, heard, touched, smelled or otherwise actually perceived an

event. Circumstantial evidence is the proof of a fact or facts from which the existence of

another fact may be determined. The law makes no distinction between direct and

circumstantial evidence. You must determine the weight to be given to all the evidence

without regard to whether it is direct or circumstantial.

SOURCE: Preliminary 3, RAJI (Civil) 5th modified.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 5 − Stipulations

During the trial, the lawyers are permitted to stipulate that certain evidence exits. This

means both sides agree that evidence exists and is to be considered by you during your

deliberations at the conclusion of the trial.

SOURCE: Standard 3, RAJI (Criminal), modified.

PRELIMINARY CRIMINAL INSTRUCTIONS

Preliminary Criminal 6 − Evidence, Statements of Lawyers and Rulings

As I mentioned earlier, it is your job to decide from the evidence what the facts are.

Here are six rules on what is and what is not evidence:

1. Evidence to be considered: You must determine the facts only from the testimony

of witnesses and from exhibits admitted in evidence. Anything you may see or hear

when the court is not in session, even if what you see or hear is done or said by one

of the parties or by one of the witnesses, is not evidence and must not be considered

by you. If you should hear or see anything pertaining to the case outside the

courtroom or if anyone should attempt to speak to you about this case outside the

courtroom, please report to me as soon as you can.

2. Lawyers’ statements: Statements or arguments made by the lawyers in the case are

not evidence. Their purpose is to help you understand the evidence and law.

3. Questions to a witness: A question is not evidence. A question can only be used to

give meaning to a witness’ answer.

4. Objections to questions: If a lawyer objects to a question and I do not allow the

witness to answer, you must not try to guess what the answer might have been. You

must also not try to guess the reason why the lawyer objected in the first place.

5. Rejected evidence: At times during the trial, evidence may be offered that I do not

admit as evidence. When evidence is not admitted, you must not consider it for any

purpose.

6. Stricken evidence: At times I may order some evidence to be stricken from the

record. Then it is no longer evidence and you must not consider it for any purpose.

SOURCE: Bench Book for Superior Court Judges; Preliminary 7, RAJI (Civil) 5th modified.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 7 − Rulings of the Court

Admission of evidence in court is governed by rules of law. I will apply those rules and

resolve any issues that arise during the trial concerning the admission of evidence.

If an objection to a question is sustained, you must disregard the question and you must

not guess what the answer to the question might have been. If an exhibit is offered into

evidence and an objection to it is sustained, you must not consider that exhibit as evidence.

If testimony is ordered stricken from the record, you must not consider that testimony for

any purpose.

Do not concern yourselves with the reasons for my rulings on the admission of

evidence. Do not regard those rulings as any indication from me of the credibility of the

witnesses or the weight you should give to any evidence that has been admitted.

SOURCE: Preliminary 4, RAJI (Civil) 5th.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

USE NOTE: The second paragraph may be deleted if used with Preliminary Criminal 6.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 8 − Exclusion of Witnesses

The Rule of Exclusion of Witnesses is in effect and will be observed by all witnesses

until the trial is over and a result announced. This means that all witnesses will remain

outside the courtroom during the entire trial except when one is called to the witness stand.

They will wait in the areas directed by the bailiff unless other arrangements have been made

with the attorney who has called them. The rule also forbids witnesses from telling anyone

but the lawyers what they will testify about or what they have testified to. If witnesses do talk

to the lawyers about their testimony, other witnesses and jurors should avoid being present

or overhearing.

The lawyers are directed to inform all their witnesses of these rules and to remind them

of their obligations from time to time, as may be necessary. The parties and their lawyers

should keep a careful lookout to prevent any potential witness from remaining in the

courtroom if they accidentally enter.

SOURCE: Bench Book for Superior Court Judges; Preliminary 12, RAJI (Civil) 5th.

SE NOTE: Give this instruction only if the Rule of Exclusion of Witnesses has been

invoked.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Both Rule 9.3, Arizona Rules of Criminal Procedure, and Rule 615, Arizona Rules of

Evidence, deal with exclusion of witnesses from the courtroom.

Preliminary Criminal 9 − Bench Conferences and Recesses

From time to time during the trial, it may become necessary for me to talk with the

attorneys out of the hearing of the jury, either by having a conference at the bench when the

jury is present in the courtroom, or by calling a recess. Please understand that while you are

waiting, we are working. The purpose of these conferences is not to keep relevant

information from you, but to decide how certain evidence is to be treated under the rules of

evidence and to avoid confusion and error. We will, of course, do what we can to keep the

number and length of these conferences to a minimum. I may not always grant an attorney’s

request for a conference. Do not consider my granting or denying a request for a conference

as any indication of my opinion of the case or of what your verdict should be. Please do not

be concerned with what we are discussing at any bench conference we may have. Please

respect the privacy of those participating in the bench conference in order to maintain the

fairness of the trial.

PRELIMINARY CRIMINAL INSTRUCTIONS

SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, Instruction 2.2, modified

by addition of the last two sentences.

Preliminary Criminal 10 − Credibility of Witnesses

In deciding the facts of this case, you should consider what testimony to accept, and

what to reject. You may accept everything a witness says, or part of it, or none of it.

In evaluating testimony, you should use the tests for accuracy and truthfulness that

people use in determining matters of importance in everyday life, including such factors as:

the witness’s ability to see or hear or know the things the witness testified to; the quality of

the witness’s memory; the witness’s manner while testifying; whether the witness has any

motive, bias, or prejudice; whether the witness is contradicted by anything the witness said

or wrote before trial, or by other evidence; and the reasonableness of the witness’s testimony

when considered in the light of the other evidence.

Consider all of the evidence in light of reason, common sense, and experience.

SOURCE: Bench Book for Superior Court Judges; Standard 18, RAJI (Criminal) 3rd;

Preliminary 5, RAJI (Civil) 5th.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 11 − Expert Witness

A witness qualified as an expert by education or experience may state opinions on

matters in that witness’s field of expertise, and may also state reasons for those opinions.

Expert opinion testimony should be judged just as any other testimony. You are not

bound by it. You may accept it or reject it, in whole or in part, and you should give it as

much credibility and weight as you think it deserves, considering the witness’s qualifications

and experience, the reasons given for the opinions, and all the other evidence in the case.

SOURCE: Bench Book for Superior Court Judges; Standard 25, RAJI (Criminal) 3rd;

Preliminary 6, RAJI (Civil) 5th.

SE NOTE: Give only if it is anticipated that an expert witness will testify.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

Preliminary Criminal 12 − No Transcript Available to Jury; Taking Notes

At the end of the trial you will have to make your decision based on what you recall of

the evidence. You will not be given a written transcript of any testimony; you should pay

close attention to the testimony as it is given.

You have been provided with note pads and pens. The court encourages you to take

notes during the trial if you wish to do so. Do not let note taking distract you so that you

miss hearing or seeing other testimony. You may use your notes during your deliberations at

the end of the trial. Until then, keep your notes to yourself. During recesses in the trial, you

may leave your notes on your seat. Your notes are confidential and my bailiff will guard

them. No one will be allowed to read your notes. Whether you take notes or not, you should

rely upon your own memory of what was said and not be overly influenced by the notes of

other jurors. After you have rendered your verdict, the bailiff will collect your notes and

destroy them.

Do not be influenced at all by my taking notes at times. What I write down may have

nothing to do with what you will be concerned with at this trial.

SOURCE: Bench Book for Superior Court Judges; Preliminary 8, RAJI (Civil) 5th modified.

SE NOTE: Rule 18.6(d), Arizona Rules of Criminal Procedure, requires the court to

“instruct the jurors that they may take notes” during the trial.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 13 − Admonition

I am now going to say a few words about your conduct as jurors. I am going to give you

some dos and don’ts, mostly don’ts, which I will call “The Admonition.”

Do wear your juror badge at all times in and around the courthouse so everyone will

know you are on a jury.

Each of you has gained knowledge and information from the experiences you have had

prior to this trial. Once this trial has begun you are to determine the facts of this case only

from the evidence that is presented in this courtroom. Arizona law prohibits a juror from

receiving evidence not properly admitted at trial. Therefore, do not do any research or make

any investigation about the case on your own. Do not view or visit the locations where the

events of the case took place. Do not consult any source such as a newspaper, a dictionary,

a reference manual, television, radio or the Internet for information. If you have a question

or need additional information, submit your request in writing and I will discuss it with the

attorneys.

Do not talk to anyone about the case, or about anyone who has anything to do with it,

and do not let anyone talk to you about those matters, until the trial has ended, and you have

been discharged as jurors. This prohibition about not discussing the case includes using e-

mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-

Touches, Google, Yahoo, or any internet search engine, or any other form of electronic

PRELIMINARY CRIMINAL INSTRUCTIONS

communication for any purpose whatsoever, if it relates in any way to this case. This

includes, but is not limited to, blogging about the case or your experience as a juror on this

case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your

reactions to testimony or exhibits or any aspect of the case or your courtroom experience

with anyone whatsoever, until the trial has ended, and you have been discharged as jurors.

Until then, you may tell people you are on a jury, and you may tell them the estimated

schedule for the trial, but do not tell them anything else except to say that you cannot talk

about the trial until it is over.

One reason for these prohibitions is because the trial process works by each side

knowing exactly what evidence is being considered by you and what law you are applying to

the facts you find. As I previously told you, the only evidence you are to consider in this

matter is that which is introduced in the courtroom. The law that you are to apply is the law

that I give you in the final instructions. This prohibits you from consulting any outside

source.

If you have cell phones, laptops or other communication devices, please turn them off

and do not turn them on while in the courtroom. You may use them only during breaks, so

long as you do not use them to communicate about any matter having to do with the case.

You are not permitted to take notes with laptops, Blackberries, tape recorders or any other

electronic device. You are only permitted to take notes on the notepad provided by the

court. Devices that can take pictures are prohibited and may not be used for any purpose.

It is your duty not to speak with or permit yourselves to be addressed by any person on

any subject connected with the trial. If someone should try to talk to you about the case,

stop him or her or walk away. If you should overhear others talking about the case, stop

them or walk away. If anything like this does happen, report it to me or any member of my

staff [insert phone number] as soon as you can. To avoid even the appearance of improper

conduct, do not talk to any of the parties, the lawyers, the witnesses or media representatives

about anything until the case is over, even if your conversation with them has nothing to do

with the case. For example, you might pass an attorney in the hall, and ask what good

restaurants there are downtown, and somebody from a distance may think you are talking

about the case. So, again, please avoid even the appearance of improper conduct.

The lawyers and parties have been given the same instruction about not speaking with

you jurors, so do not think they are being unfriendly to you. When you go home tonight and

family and friends ask what the case is about, remember you cannot speak with them about

the case. All you can tell them is that you are on a jury, the estimated schedule for the trial,

and that you cannot talk about the case until it is over.

In a civil case, the jurors are permitted to discuss the evidence during the trial while the

trial progresses. In a criminal case such as this, however, the jurors are not permitted to

discuss the evidence until all the evidence has been presented and the jurors have retired to

deliberate on the verdict. You may not discuss the evidence among yourselves until you

retire to deliberate on your verdict.

Therefore, during breaks and recesses whether you are

assembled in the jury room or not, you shall not discuss any aspect of the case with each other

until the case is submitted to you for your deliberations at the end of the trial. Again, if you have

a question or need additional information, submit your request in writing and I will discuss it

with the attorneys.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

During the trial, you are not to engage in any conduct that impairs or interferes with your

ability to hear and understand the court proceedings.

Do not form final opinions about any fact or about the outcome of the case until you have

heard and considered all of the evidence, the closing arguments, and the rest of the instructions I

will give you on the law. Keep an open mind during the trial. Form your final opinions only after

you have had an opportunity to discuss the case with each other in the jury room at the end of

the trial.

Please advise me in writing immediately if you believe that any juror has violated any

provision of this admonition.

Before each recess, I will not repeat the entire Admonition I have just given you. I will

probably refer to it by saying, “Please remember the Admonition,” or something like that.

However, even if I forget to make any reference to it, remember that the Admonition still applies

at all times during the trial.

SOURCE: Bench Book for Superior Court Judges; Preliminary 9, RAJI (Civil) 5th, modified.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 14 − Media Coverage

There may or may not be news media coverage of the trial. What the news media covers

is up to them. If there is media coverage, you must avoid it during the trial. If you do

encounter something about this case in the news media during the trial, end your exposure

to it immediately and report to me as soon as you can. If there are cameras in the courtroom

during the trial, do not be concerned about them. Court rules require that the proceedings be

photographed or televised in such a way that no juror can be recognized.

SOURCE: Bench Book for Superior Court Judges; Preliminary 10, RAJI (Civil) 5th.

SE NOTE: Where there is extensive media coverage about a case, the trial judge may wish

to consider asking the jurors at the start of the trial each day whether any juror has seen or

heard anything in the media about the case.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 15 − Presence of a Deputy

Deputies are assigned to courtroom by the sheriff’s office. A deputy’s presence in this

courtroom should not be considered by you for any purpose, influence your view of the

evidence, or impact your deliberations in anyway.

USE NOTE: The court should exercise its discretion in giving this instruction.

PRELIMINARY CRIMINAL INSTRUCTIONS

Preliminary Criminal 16 − Questions by Jurors

If at any time during the trial you have difficulty hearing or seeing something that you

should be hearing or seeing, or if you get into personal distress for any reason, raise your

hand and let me know.

If you have any questions about parking, restaurants, or other matters relating to jury

service, feel free to ask one of the court staff. But remember that the Admonition applies to

court staff, as it does to everyone else, so do not try to discuss the case with court staff.

If you have a question about the case for a witness or for me, write it down, but do not

sign it. Hand the question to the bailiff. If your question is for a witness who is about to

leave the witness stand, please signal the bailiff or me before the witness leaves the stand.

The lawyers and I will discuss the question. The rules of evidence or other rules of law

may prevent some questions from being asked. If the rules permit the question and the

answer is available, an answer will be given at the earliest opportunity. When we do not ask a

question, it is no reflection on the person submitting it. You should attach no significance to

the failure to ask a question. I will apply the same legal standards to your questions as I do to

the questions asked by the lawyers. If a particular question is not asked, please do not guess

why or what the answer might have been.

SOURCE: Bench Book for Superior Court Judges; Preliminary 11, RAJI (Civil) 5th.

SE NOTE: Rule 18.6(e), Arizona Rules of Criminal Procedure, requires the court to instruct

the jurors that “they are permitted to submit to the court written questions directed to

witnesses or to the court.” Review of the juror questions must be done out of the presence

of the jury (for example, at a bench conference) and should be done on the record.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 17 − Alternate Jurors

The law provides for a jury of _____ persons in a case such as this. We have more than

_____ jurors so that, if a juror becomes ill or has a personal emergency, the trial can

continue without that juror.

At the end of the case, alternate jurors will be determined by lot in a drawing held in

open court. Please do not be concerned with who may or may not be chosen as an alternate

at the end of the case.

SOURCE: Bench Book for Superior Court Judges; Preliminary 13, RAJI (Civil), 5th.

COMMENT: ARIZ. CONST., art. 2, § 23 and A.R.S. § 21-102(A) require a 12-person jury if the

potential sentence is 30 years or more. “A defendant’s exposure to a sentence of at least

thirty years’ imprisonment establishes his or her right to a twelve-person jury,

notwithstanding the actual sentence imposed. State v. Luque, 171 Ariz. 198, 201, 829 P.2d

1244, 1247 (App.1992) (“commencement of deliberations is the crucial point” in

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

determining when defendant’s right to twelve-person jury under article II, § 23 of Arizona

Constitution attaches); see also State v. Smith, 197 Ariz. 333, 4 P.3d 388 (App. 1999).” State v.

Benenati, 203 Ariz. 235, 239 n. 3, 52 P.3d 804 (App. 2002); State v. Kuck, 210 Ariz. 288, 110

P.3d 1022 (App. 2005) distinguishing State v. Maldonado, 206 Ariz. 339, 342, 78 P.3d 1060,

1063 (App. 2003) (jury size is determined at the outset of the trial) and holding that the size

of the jury is determined by the maximum sentence to which the defendant is exposed when

the case goes to the jury. Defense counsel’s waiver of a twelve-person jury without the

defendant’s knowing waiver is fundamental error requiring reversal and a new trial.

Maldonado, 206 Ariz. 339, 78 P.3d 1060 (App. 2003). The possible prison sentence, even if it

is a mandatory consecutive sentence, in a probation violation matter is not required to be

included in determining whether a twelve-person jury is required for defendant’s new,

untried case. State v. Nguyen, 208 Ariz. 316, 318, 93 P.3d 516, 518 (App. 2004).

Preliminary Criminal 18 − Constitutional Right Not to Testify

A defendant in a criminal case has a constitutional right to not testify at trial, and the

exercise of that right cannot be considered by the jury in determining whether a defendant is

guilty or not guilty.

SOURCE: Standard 15, RAJI (Criminal) 3rd.

Preliminary Criminal 19 − Statements of Defendant

If there is testimony in this case about what a defendant said to a law enforcement

officer, you must not consider any such statements unless you determine beyond a

reasonable doubt that the defendant made the statements voluntarily.

A defendant’s statement to a law enforcement officer was not voluntary if it resulted

from the defendant’s will being overcome by a law enforcement officer’s use of any sort of

violence, coercion, or threats or by any direct or implied promise, however slight.

You must give such weight to the defendant’s statement as you feel it deserves under all

the circumstances.

SOURCE: See Standard 6, RAJI (Criminal) 3rd.

SE NOTE: Give this instruction only if a statement of the defendant to law enforcement is

going to be introduced by the State.

Preliminary Criminal 20 − Presumption of Innocence and Burden of Proof

The State has charged the defendant with a crime. The charge is not evidence against the

defendant. You must not think the defendant is guilty just because the defendant has been

charged with a crime. The defendant has pled “not guilty.” The defendant’s plea of “not

guilty” means that the State must prove every part of the charge beyond a reasonable doubt.

PRELIMINARY CRIMINAL INSTRUCTIONS

The law does not require a defendant to prove innocence. Every defendant is presumed

by law to be innocent.

The State has the burden of proving the defendant guilty beyond a reasonable doubt. In

civil cases, it is only necessary to prove that a fact is more likely true than not or that its truth

is highly probable. In criminal cases such as this, the State’s proof must be more powerful

than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the

defendant’s guilt. There are very few things in this world that we know with absolute

certainty, and in criminal cases the law does not require proof that overcomes every doubt.

If, based on your consideration of the evidence, you are firmly convinced that the defendant

is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think

there is a real possibility that he/she is not guilty, you must give him/her the benefit of the

doubt and find him/her not guilty.

In deciding whether the defendant is guilty or not guilty, do not consider the possible

punishment.

SOURCE: See Standard 5a and 5b(1), RAJI (Criminal) 3rd; State v. Portillo, 182 Ariz. 592, 596,

898 P.2d 970, 974 (1995).

OMMENT: This instruction is to be given in every criminal case. Portillo, supra. The

instruction should be given exactly as written without any modification. State v. Sullivan, 205

Ariz. 285, 288, 69 P.3d 1006, 1009 (App. 2003).

Preliminary Criminal 21 (Short Version) − Jury to Be Guided by Official English

Translation/ Interpretation

[Language to be used] may be used during this trial. The evidence you are to consider is

only that provided through the official court [interpreters] [translators]. Although some of

you may know [language to be used], it is important that all jurors consider the same evidence.

Therefore, you must consider only the English interpretation, disregarding what you heard in

[insert language]. You must disregard any different meaning. You may not comment to

fellow jurors on what you heard in [insert language]. Additionally, you may not reinterpret

for other jurors testimony that has been interpreted by the court interpreter because that

would be providing your fellow jurors with information not on the record.

SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, Instruction 1.16.

SE NOTE: Use the bracketed language as applicable to the case. “Interpreter” or

“interpretation” will be used for the spoken language and “translator” or “translation” will be

used for written documents.

Should there be an issue with the accuracy of the interpretation or translation, counsel

should raise the issue with the trial judge.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

Preliminary Criminal 21 (Long Version) − Jury to Be Guided by Official English

Translation/ Interpretation

[Insert language] may be used during this trial. The evidence you are to consider is only that

provided through the official court interpreters. Although some of you may know [insert

language], it is important that all jurors consider the same evidence. Therefore, you must accept

the English interpretation. You must disregard any different meaning.

The court interpreter is required to remain neutral and to interpret between English and

[insert language] accurately and impartially to the best of the interpreter’s skill and judgment.

The court interpreter is trained to give as accurate a translation as possible under the

circumstances.

You must evaluate interpreted testimony as you would any other testimony. That is, you

must not give interpreted testimony any greater or lesser weight than you would if the witness

had spoken English.

It is important that each juror reach a decision based on the same set of facts. The

possibility that a word or phrase may have another meaning is not a topic for discussion unless

it is raised by counsel and resolved by the court. Therefore, you must consider only the English

interpretation, disregarding what you heard in [insert language]. You may not comment to

fellow jurors on what you heard in [insert language]. Additionally, you may not retranslate for

other jurors testimony that has been translated by the court interpreter because that would be

providing your fellow jurors with information not on the record.

USE NOTE: “Interpreter” or “interpretation” will be used for the spoken language and

“translator” or “translation” will be used for written documents.

Preliminary Criminal 21.1 − Interpreter for the Defendant

Every person is entitled to a fair trial regardless of the language a person speaks and

regardless of how well a person may, or may not, use the English language. Many citizens and

noncitizens have a primary language other than English. Our Constitution protects all people

within our state regardless of their nationality or their proficiency with the English language.

Bias against or for a person who has little or no proficiency in English, or because the speaker

does not use English, is not allowed. The fact that the defendant requires an interpreter must

not influence you, in your deliberations, in any way.

Preliminary Criminal 21.2 − Citizenship/Nationality Instruction

Every person is entitled to a fair trial regardless of nationality or citizenship. Our

Constitution and laws protect all people within our state regardless of their nationality or

citizenship. Bias against or for a person because of their nationality or citizenship is not allowed.

The defendant’s nationality or citizenship must not influence you in your deliberations, in any

way.

PRELIMINARY CRIMINAL INSTRUCTIONS

Preliminary Criminal 22 − The Charged Offense

To assist you in considering the evidence that will be presented during the trial, I will

now tell you about the crime[s] with which the defendant is charged. The defendant is

charged with [“insert name of crime[s]”], which crime[s] require[s] proof of the following:

[Set out the elements of the charged crime or crimes along with any definitions that may

prove useful to the jury during presentation of the evidence.]

The defendant has pled “not guilty” to [this charge] [these charges]. The State must

prove each element of the charged crime beyond a reasonable doubt. I will give you more

details and definitions about the alleged crime in the final jury instructions.

SOURCE: Rule 18.6(c), Arizona Rules of Criminal Procedure.

OMMENT: Rule 18.6(c) provides that immediately after the jury is sworn, the court is to

instruct the jury on, “the elementary legal principles that will govern the proceeding.” It is

recommended that the jury be instructed on the elements of the charged crime and any basic

definitions so that the jury can put the evidence in context during the trial.

Preliminary Criminal 23 − Scheduling During Trial

The trial is expected to last through _________. We will all do our best to move the

case along, but delays frequently occur. These won’t be anyone’s fault, so don’t hold them

against the parties. Delays usually occur because the attorneys and I often need to resolve

certain legal matters before these matters may be presented to you in court or because I am

busy with matters in other cases.

The usual hours of trial will be from ______ to ______. We will take short recesses

about every mid-morning and mid-afternoon and occasionally stretch breaks in place. We

will recess at ______ and begin again at ______. Unless a different starting time is

announced prior to recessing for the evening, you may assume a starting time of ______ for

the next day. At the beginning of the day, please assemble in the jury room for this division.

Please do not come back into the courtroom until you are called by the bailiff.

SOURCE: Bench Book for Superior Court Judges; Preliminary 15, RAJI (Civil) 5th.

OMMENT: Rule 21.1, Arizona Rules of Criminal Procedure: “The law relating to

instructions to the jury in civil actions shall apply to criminal actions, except as otherwise

provided.”

Preliminary Criminal 24 − Order of Trial

Criminal trials generally proceed in the following order:

First, the prosecuting attorney will make an opening statement giving a preview of the

case. The defendant’s attorney may make an opening statement outlining the defense case

immediately after the prosecutor’s statement, or it may be postponed until after the State’s

case has been presented. What is said in opening statements is not evidence. Nor is it an

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

argument. The purpose of an opening statement is to help you prepare for anticipated

evidence.

Second, the State will present its evidence. After the State finishes the presentation of its

evidence, the defendant may present evidence. If the defendant does produce evidence, the

State may present additional, or rebuttal, evidence. With each witness, there is a direct

examination, a cross-examination by the opposing side, and, finally, redirect examination.

This usually ends the testimony of that witness.

Third, after all the evidence is in, I will read and give you copies of the final instructions,

the rules of law you must follow in reaching your verdict.

[Fourth, the attorneys will make closing arguments to tell you what they think the

evidence shows and how they think you should decide the case. The State has the right to

open and close the argument since the State has the burden of proof. Just as in opening

statements, what is said in closing arguments is not evidence.]

[Fourth, the attorneys will make closing arguments to tell you what they think the

evidence shows and how they think you should decide the case. The State has the right to

open the argument, but if the defendant presents an affirmative defense, the defendant may

be allowed to close the argument because the defendant has the burden of proof on the

affirmative defense. If no affirmative defense is presented, the State has the right to close the

argument. Just as in opening statements, what is said in closing arguments is not evidence.]

Fifth, you will deliberate in the jury room about the evidence and rules of law in an

effort to reach the verdict[s]. If you unanimously agree upon the verdict[s], [it] [they] will be

read in court with you and the parties present.

[Sixth, in some circumstances, it may be necessary for you to make additional findings. If

this is the case, I will give you further instructions at that time.]

Finally, you will be discharged and released from the Admonition.

The rules of law I have shared with you in the past few minutes are preliminary only. At

the end of the case I will read to you and give you a copy of the final instructions of law. In

deciding the case you must be guided by the final instructions.

SOURCE: Bench Book for Superior Court Judges; Rule 19.1(a), Arizona Rules of Criminal

Procedure.

COMMENT: The second bracketed “fourth” paragraph is included because where the

defense has the burden of proof on an affirmative defense, the trial court has the discretion

to grant surrebuttal. See State v. Moody, 208 Ariz. 424, 468-69, ¶¶ 202-04, 94 P.3d 1119 (2004);

State v. Steelman, 120 Ariz. 301, 319, 585 P.2d 1213, 1231 (1978). If the court has made the

decision to allow surrebuttal before hearing the evidence, the court may wish to use the

second bracketed “fourth” paragraph.

STANDARD CRIMINAL INSTRUCTIONS

Standard Criminal 1 − Duty of Jury

It is your duty as a juror to decide this case by applying these jury instructions to the

facts as you determine them. You must follow these jury instructions. They are the rules you

should use to decide this case.

It is your duty to determine what the facts are in the case by determining what actually

happened. Determine the facts only from the evidence produced in court. When I say

“evidence,” I mean the testimony of witnesses and the exhibits introduced in court. You

should not guess about any fact. You must not be influenced by sympathy or prejudice. You

must not be concerned with any opinion that you feel I have about the facts. You, as jurors,

are the sole judges of what happened.

You must consider all these instructions. Do not pick out one instruction, or part of

one, and ignore the others. As you determine the facts, however, you may find that some

instructions no longer apply. You must then consider the instructions that do apply, together

with the facts as you have determined them.

SOURCE: RAJI (Criminal) No. 1 (1996).

Standard Criminal 2 − Indictment/Information Is Not Evidence

The State has charged the defendant with [a crime] [certain crimes]. A charge is not

evidence against the defendant. You must not think that the defendant is guilty just because

of a charge. The defendant has pled “not guilty.”

This plea of “not guilty” means that the State must prove each element of the charge[s]

beyond a reasonable doubt.

Standard Criminal 3 − Presumption of Innocence

The law does not require a defendant to prove innocence. Every defendant is presumed

by law to be innocent. You must start with the presumption that the defendant is innocent.

SOURCE: The instruction is based on language from the 1989 and 1996 versions of the

Revised Arizona Jury Instructions.

SE NOTE: The Committee strongly recommends the court use this instruction in every

case along with the required reasonable doubt instruction.

OMMENT: In Taylor v. Kentucky, 436 U.S. 478 (1978), the United States Supreme Court held

that, under facts of that case, the failure of the trial court to give defendant’s requested

instruction on presumption of innocence violated defendant’s due process rights to a fair

trial. In Kentucky v. Whorton, 441 U.S. 786, 789 (1979), the United States Supreme Court held

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

that the failure to give a requested instruction on the presumption of innocence in and of

itself does not violate the Constitution, and noted that the error it found in Taylor was based

on the facts of that case. Accord State v. White, 160 Ariz. 24, 31, 770 P.2d 328, 335 (1989).

Because any error in the failure to give a presumption of innocence instruction will depend

on the facts of the case, the Committee is of the opinion that the better practice is to give

this instruction in every case.

Standard Criminal 4(a) − Burden of Proof

The State has the burden of proving the defendant guilty beyond a reasonable doubt.

This means the State must prove each element of each charge beyond a reasonable doubt. In

civil cases, it is only necessary to prove that a fact is more likely true than not or that its truth

is highly probable. In criminal cases such as this, the State’s proof must be more powerful

than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the

defendant’s guilt. There are very few things in this world that we know with absolute

certainty, and in criminal cases the law does not require proof that overcomes every doubt.

If, based on your consideration of the evidence, you are firmly convinced that the defendant

is guilty of the crime charged, you must find [him][her] guilty. If, on the other hand, you

think there is a real possibility that [he][she] is not guilty, you must give [him][her] the benefit

of the doubt and find [him][her] not guilty.

SOURCE: State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995), with the addition of

the language contained in the second sentence of the first paragraph.

OMMENT: This is the instruction verbatim from State v. Portillo, 182 Ariz. 592, 596, 898

P.2d 970, 974 (1995), with the addition of the language contained in the second sentence of

the first paragraph. In State v. Van Adams, 194 Ariz. 408, 418, 984 P.2d 16, 26 (1999), the

Arizona Supreme Court rejected a challenge to the “firmly convinced” language in the Portillo

instruction, and stated: “We have clearly indicated our preference for this instruction, which

is based upon the Federal Judicial Center’s proposed instruction.” 194 Ariz. 408, ¶ 30. This

instruction is included for those who are of the opinion that the Arizona Supreme Court has

mandated that the courts must now use only the exact language given in Portillo. The

Committee believes, however, that the Portillo instruction is incorrect to the extent that it

states that the preponderance of the evidence standard and the clear and convincing

evidence standard apply only in a civil case. In a criminal case, facts in general must be

proved by a preponderance of the evidence, and certain specific facts must be proved by

either a preponderance of the evidence or by clear and convincing evidence. A.R.S.

§ 13-205(A) (unless otherwise provided, a defendant must prove an affirmative defense by a

preponderance of the evidence); A.R.S. § 13-206(B) (defendant must prove entrapment by

clear and convincing evidence); A.R.S. § 13-502 (defendant must prove legal insanity by clear

and convincing evidence); State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997)

(State must prove by clear and convincing evidence that defendant committed other act).

Standard Criminal Instruction 5b(2) defines these other standards for the jurors.

STANDARD INSTRUCTIONS

Standard Criminal 4(b) − Standards for the Burden of Proof

There are three standards for the burden of proof:

1. Preponderance of the evidence;

2. Clear and convincing evidence;

3. Beyond a reasonable doubt.

Preponderance of the Evidence –

A party having the burden of proof by a

preponderance of the evidence must persuade you, by the evidence, that the claim or a

fact is more probably true than not true. This means the evidence that favors that party

outweighs the opposing evidence.

Clear and Convincing Evidence – A party having the burden of proof by clear and

convincing evidence must persuade you, by the evidence, that the claim or a fact is highly

probable. This standard is higher than the standard for proof by a preponderance of the

evidence, but is lower than the standard for proof beyond a reasonable doubt.

Beyond a Reasonable Doubt – The State has the burden of proving the defendant

guilty beyond a reasonable doubt. This means the State must prove each element of each

charge beyond a reasonable doubt. Proof beyond a reasonable doubt is proof, by the

evidence that leaves you firmly convinced of the defendant’s guilt. This standard is higher

than the standard for either proof by a preponderance of the evidence or proof by clear and

convincing evidence.

There are very few things in this world that we know with absolute certainty, and in

criminal cases the law does not require proof that overcomes every doubt. If, based on your

consideration of the evidence, you are firmly convinced that the defendant is guilty of the

crime charged, you must find [him][her] guilty. If, on the other hand, you think there is a real

possibility that [he][she] is not guilty, you must give [him][her] the benefit of the doubt and

find [him][her] not guilty.

COMMENT: This instruction takes the instruction given in State v. Portillo, 182 Ariz. 592, 596,

898 P.2d 970, 974 (1995), and combines it with the definitions for preponderance of the

evidence and clear and convincing evidence from the civil RAJI. In a criminal case, facts in

general must be proved by a preponderance of the evidence, and certain specific facts must

be proved by either a preponderance of the evidence or by clear and convincing evidence.

A.R.S. § 13-205(A) unless otherwise provided, a defendant must prove an affirmative

defense by a preponderance of the evidence); A.R.S. § 13-206(B) (defendant must prove

entrapment by clear and convincing evidence); A.R.S. § 13-502 (defendant must prove legal

insanity by clear and convincing evidence); State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d

1194, 1196 (1997) (State must prove by clear and convincing evidence that defendant

committed other act).

Standard Criminal 5 − Jury Not to Consider Penalty

You must decide whether the defendant is guilty or not guilty by determining what the

facts in the case are and applying these jury instructions.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

You must not consider the possible punishment when deciding on guilt; punishment is

left to the judge.

SOURCE: RAJI (Criminal) No. 7 (1996); State v. Koch, 138 Ariz. 99, 105, 673 P.2d 297, 303

(1983); State v. Van Dyke, 127 Ariz. 335, 337, 621 P.2d 22, 24 (1983).

Standard Criminal 6 − Defendant’s Right to Represent Himself/Herself

Every defendant has a right to represent [himself] [herself]. [The Defendant will be

representing himself/herself with the assistance of an advisory lawyer.] The Defendant’s

decision to represent [himself] [herself] means that [he] [she] will be required to follow the

same rules and procedures as any lawyer.

You should not let the fact that the Defendant has chosen to represent [himself]

[herself] affect your deliberations in any way.

SOURCE: Faretta v. California, 422 U.S. 806, 821 (1975).

Standard Criminal 7 − Defendant Absent at Trial

You are not to consider or speculate about the defendant’s absence from the courtroom.

It is not evidence, and you must not consider it in deciding if the State has proved its case

beyond a reasonable doubt.

SOURCE: RAJI (Criminal) No. 33 (1996); Rule 9.1, Arizona Rules of Criminal Procedure.

Standard Criminal 8 − Evidence to Be Considered

You are to determine what the facts in the case are from the evidence produced in

court. If an objection to a question was sustained, you must disregard the question and

you must not guess what the answer to the question might have been. If an exhibit was

offered into evidence and an objection to it was sustained, you must not consider that

exhibit as evidence. If testimony was ordered stricken from the record, you must not

consider that testimony for any purpose.

SOURCE: RAJI (Criminal) No. 4 (2016).

OMMENT: When the trial court sustains a defendant’s objection to an improper comment

and admonishes the jury to disregard it, this is generally sufficient to cure the prejudicial

impact unless it is highly damaging or the instruction from the court is clearly inadequate.

State v. Clow, 130 Ariz. 125, 127, 634 P.2d 576, 578 (1981).

STANDARD INSTRUCTIONS

Standard Criminal 9 − Defendant Need Not Produce Evidence

The State must prove guilt beyond a reasonable doubt based on the evidence. The

defendant is not required to produce evidence of any kind. The defendant’s decision not to

produce any evidence is not evidence of guilt.

SOURCE: RAJI (Criminal) No. 16 (1996); A.R.S. § 13-115 (statutory language as of October

1, 1978).

SE NOTE: If a defendant testifies and refers to absent witnesses or defense counsel argues

about others involved or infers that the State could have called other witnesses, the State

may argue to the jury that although the State has the burden of proof, the defense has the

power of subpoena also. This comment is not a comment on defendant’s right not to testify.

See State v. Petzolt, 172 Ariz. 272, 278, 836 P.2d 982, 988 (App.1991); State v. Rutledge, 205

Ariz. 7, 14, 66 P.3d 50, 57 (2003) (stating that the comments must be taken in the context of

the facts presented and in that case, where defense raised an alibi defense, it was proper for

prosecutor to comment that the defendant’s interview with the police did not include any

alibi evidence). It is well settled law that a prosecutor may comment on defendant’s failure to

produce exculpatory evidence as long as the State does not call attention to defendant’s

failure to testify. State v. Herrera, 203 Ariz. 131, 137, 51 P.3d 353, 359 (App. 2002). However,

the State is not permitted to argue to the jury about the defense failure to produce witnesses

or evidence when there has been no evidence presented or arguments made by counsel

about absent witnesses or evidence or the failure of the State to call witnesses or present

specific evidence. See State v. Corona, 188 Ariz. 85, 89, 932 P.2d 1356, 1360 (App. 1997).

Standard Criminal 10 − Lawyers’ Comments Are Not Evidence

In their opening statements and closing arguments, the lawyers have talked to you about

the law and the evidence. What the lawyers said is not evidence, but it may help you to

understand the law and the evidence.

SOURCE: RAJI (Criminal) No. 2 (1996).

OMMENT: The opening statement should not contain any facts that the parties cannot

prove at trial. State v. Bowie, 119 Ariz. 336, 339, 580 P.2d 1190, 1193 (1978). The trial court

should not restrict an opening statement containing facts that the party believes in good faith

that it can establish at trial. State v. Pedroza-Perez, 240 Ariz. 114, 377 P.3d 311 (2016).

Standard Criminal 11 − Stipulations

The lawyers are permitted to stipulate that certain facts exist. This means that both sides

agree those facts do exist and are part of the evidence. You are to treat a stipulation as any

other evidence. You are free to accept it or reject it, in whole or in part, just as any other

evidence.

SOURCE: RAJI (Criminal) Standard 3 (1996).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

USE NOTE: In State v. Allen, 223 Ariz. 125, 126, ¶10, n. 2, 220 P.3d 245, 246 (Ariz. 2009), the

Arizona Supreme Court noted that it was incorrect to instruct the jury that it “should accept

* * * as true” any fact stipulated to by the parties.

Standard Criminal 12 − Judicial Notice of Adjudicative Facts

During the course of the trial, you were informed that the Court had taken judicial

notice that [describe adjudicative facts]. You may or may not accept this judicial notice as

conclusive.

C Rule 201(f), Arizona Rules of Evidence (effective as of January 1, 2012).

SE NOTE: This instruction should be given to the jury during the trial after the trial court

has taken judicial notice of an adjudicative fact pursuant to Rule 201, and should be given

again in the final instructions.

OMMENT: The Arizona Supreme Court adopted a new Rule 201 on September 8, 2010,

that is effective on January 1, 2012, as part of R-10-0035, in which subsection (f) specifically

requires that this instruction be given in criminal cases when the trial court has taken judicial

notice of an adjudicative fact.

Standard Criminal 13 − Redacted Exhibits

Some of the exhibits that have been admitted into evidence have had portions deleted

from them for legal reasons. Do not concern yourselves with the reasons why some portions

of the exhibits have been deleted. Do not speculate upon what the deleted portions might,

or might not, reveal.

SOURCE: State v. Kennedy, 122 Ariz. 22, 27, 592 P.2d 1288, 1293 (App. 1979).

SE NOTE: This instruction should be given to the jury d t the time that the redacted

exhibit has been admitted and published to the jury, and should be given again in the final

instructions

Standard Criminal 14 − Direct and Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is the testimony of a witness

who saw, heard, or otherwise sensed an event. Circumstantial evidence is the proof of a fact

or facts from which you may find another fact. The law makes no distinction between direct

and circumstantial evidence. It is for you to determine the importance to be given to the

evidence, regardless of whether it is direct or circumstantial.

SOURCE: RAJI (Criminal) No. 24 (1996); State v. Carter, 118 Ariz. 562, 564, 578 P.2d 991,

993 (1978); State v. Salinas, 106 Ariz. 526, 527, 479 P.2d 411, 412 (1971); State v. Harvill, 106

Ariz. 386, 390, 476 P.2d 841, 845 (1970).

STANDARD INSTRUCTIONS

Standard Criminal 15 − Credibility [Believability] of Witnesses

In deciding the facts of this case, you should consider what testimony to accept, and

what to reject. You may accept everything a witness says, or part of it, or none of it.

In evaluating testimony, you should use the tests for truthfulness that people use in

determining matters of importance in everyday life, including such factors as: the witness’s

ability to see or hear or know the things the witness testified to; the quality of the witness’s

memory; the witness’s manner while testifying; whether the witness had any motive, bias, or

prejudice; whether the witness was contradicted by anything the witness said or wrote before

trial, or by other evidence; and the reasonableness of the witness’s testimony when

considered in the light of the other evidence.

Consider all of the evidence in the light of reason, common sense, and experience.

SOURCE: Preliminary 4 and Standard 6, RAJI (Civil) 3d; Rule 21.1, Arizona Rules of

Criminal Procedure: “The law relating to instructions to the jury in civil actions shall apply to

criminal actions, except as otherwise provided.”

SE NOTE: If a witness has been impeached pursuant to Rule 609 with evidence of a prior

felony, Standard Criminal 19 (witness was the defendant) or Standard 20 (third-party

witness) should also be given. If character evidence was admitted pursuant to Rule 404, the

court should consider either modifying Standard 19 or Standard 20 if given or giving a

separate instruction regarding for what purpose(s) the jury may consider the Rule 404

evidence.

Standard Criminal 16 − Testimony of Law Enforcement Officers

The testimony of a law enforcement officer is not entitled to any greater or lesser

importance or believability merely because of the fact that the witness is a law enforcement

officer. You are to consider the testimony of a police officer just as you would the testimony

of any other witness.

SOURCE: RAJI (Criminal) No. 34 (1996); State v. Walters, 155 Ariz. 548, 552, 748 P.2d 777,

781 (1987).

Standard Criminal 17 − Expert Witness

A witness qualified as an expert by education or experience may state opinions on

matters in that witness’s field of expertise, and may also state reasons for those opinions.

Expert opinion testimony should be judged just as any other testimony. You are not

bound by it. You may accept it or reject it, in whole or in part, and you should give it as

much credibility and weight as you think it deserves, considering the witness’s qualifications

and experience, the reasons given for the opinions, and all the other evidence in the case.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

SOURCE: Rule 702, Arizona Rules of Evidence; Preliminary 6, RAJI (Civil) 4th; Rule 21.1,

Arizona Rules of Criminal Procedure: “The law relating to instructions to the jury in civil

actions shall apply to criminal actions, except as otherwise provided.” State v. Roberts, 139

Ariz. 117, 122-23, 677 P.2d 280, 285-86 (App. 1983).

Standard Criminal 18(a) − Defendant Need Not Testify

The defendant is not required to testify. The decision on whether or not to testify is left

to the defendant acting with the advice of an attorney. You must not let this choice affect

your deliberations in any way. [You must not conclude that the defendant is likely to be

guilty because the defendant did not testify.]

SOURCE: RAJI (Criminal) No. 15 (1996); A.R.S. §§ 13-115 and 13-117 (statutory language as

of October 1, 1978); Griffin v. California, 380 U.S. 609 (1965).

Standard Criminal 18(b) − Defendant’s Testimony

You must evaluate the defendant’s testimony the same as any witness’ testimony.

SOURCE: RAJI (Criminal) No. 36 (1996).

Standard Criminal 19 − Voluntariness of Defendant’s Statements

You must not consider any statements made by the defendant to a law enforcement

officer unless you determine beyond a reasonable doubt that the defendant made the

statements voluntarily.

A defendant’s statement was not voluntary if it resulted from the defendant’s will being

overcome by a law enforcement officer’s use of any sort of violence, coercion, or threats, or

by any direct or implied promise, however slight.

You must give such weight to the defendant’s statement as you feel it deserves under all

the circumstances.

SOURCE: RAJI (Criminal) No. 6 (1996); A.R.S. § 13-3988 (statutory language as of October

1, 1978); State v. Williams, 136 Ariz. 52, 56, 664 P.2d 202, 206 (1983); State v. McVay, 127

Ariz. 18, 20, 617 P.2d 1134, 1136 (1980); State v. Brooks, 127 Ariz. 130, 138, 618 P.2d 624,

632 (App. 1980).

Standard Criminal 20 − Reserved

STANDARD INSTRUCTIONS

Standard Criminal 21 − Defendant Witness (Prior Conviction)

You have heard evidence that defendant has previously been convicted of a criminal

offense. You may consider that evidence only as it may affect defendant’s believability as a

witness. You must not consider a prior conviction as evidence of guilt of the crime for

which the defendant is now on trial.

SOURCE: RAJI (Criminal) No. 19 (1996); Rule 609, Arizona Rules of Evidence; State v. Green,

200 Ariz. 496, 499, 29 P.3d 271, 274 (2001).

SE NOTE: This instruction must be given if the court allows evidence of defendant’s prior

conviction. “Whenever evidence is admitted of other offenses there is an imperative duty on

the trial court to clearly instruct the jury as to the restricted and limited purpose for which

such evidence is to be considered.” State v. Canedo, 125 Ariz. 197, 200, 608 P.2d 774, 777

(1980). The court’s failure to provide this type of instruction constitutes reversible error. Id.

OMMENT: The above instruction is appropriate when the trial court admits the evidence of

the prior conviction only for impeachment under Ariz. R. Evid. 609. If relevant, the trial

court may also admit the evidence of the prior conviction under Ariz. R. Evid. 404(b); State

v. Smith, 146 Ariz. 491, 499, 707 P.2d 289, 297 (1985); State v. Burciaga, 146 Ariz. 333, 335,

705 P.2d 1384, 1386 (App. 1985).

If the trial court admits the evidence under both Rule 404(b) and Rule 609, the trial

court should delete the word “only” in the second sentence. Also, the trial court should

consider combining this instruction with Standard Criminal 26A or 26B, dealing with

evidence of other crimes, wrongs, or acts. The Court should also consider whether the

specific reference to the nature of the prior offense(s) should or should not be sanitized to

prevent prejudice. See State v. Smyers, 207 Ariz. 314, 318, 86 P.3d 370, 374 (2004); State v.

Montano, 204 Ariz. 413, 426, 65 P.3d 61, 74 (2003).

Standard Criminal 22 − Witness (Prior Conviction)

You have heard evidence that a witness has previously been convicted of a criminal

offense. You may consider this evidence only as it may affect the witness’ believability.

SOURCE: RAJI (Criminal) No. 20 (1996); Rule 609, Arizona Rules of Evidence.

SE NOTE: The Court should consider whether the specific reference to the nature of the

prior offense(s) of a witness should be sanitized to prevent prejudice. See State v. Montano, 204

Ariz. 413, 426, 65 P.3d 61, 74 (2003) (case involving witness’ prior conviction).

OURCE: RAJI (Criminal) No. 21 (1996); State v. Nieto, 186 Ariz. 449, 457, 924 P.2d 453, 461

(1996); State v. Amaya-Ruiz, 166 Ariz. 152, 174, 800 P.2d 1260, 1282 (1990), cert. denied, 500

U.S. 929 (1991).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

Standard Criminal 23 − Evidence for Limited Purpose

You [are about to hear] [have heard] evidence that [describe evidence to be received for limited

purpose]. This evidence is admitted only for the limited purpose of [describe purpose] and, therefore,

you must consider it only for that limited purpose and not for any other purpose.

SOURCE: Federal Jury Instruction 2.11; Arizona Rules of Evidence 105 (effective as of

September 1. 1977).

SE NOTE: This instruction should be given to the jury before such evidence is admitted,

and should be given again in the final instructions.

Standard Criminal 24 − Other Acts

Evidence of other acts has been presented. You may consider [this act][these acts] only if

you find that the State has proved by clear and convincing evidence that the defendant

committed [this act][these acts]. You may only consider [this act][these acts] to establish the

defendant’s [motive], [opportunity], [intent], [preparation], [plan], [knowledge], [identity],

[absence of mistake or accident]. You must not consider [this act][these acts] to determine

the defendant’s character or character trait, or to determine that the defendant acted in

conformity with the defendant’s character or character trait and therefore committed the

charged offense.

SOURCE: RAJI (Criminal) No. 26A (1996); Rule 404(b), Arizona Rules of Evidence

(Statutory language as of Nov. 1, 1988); State v. Terrazas, 189 Ariz. 580, 944, 946, P.2d 1194,

1196 (1997) (added the requirement of proof by clear and convincing evidence).

SE NOTE: Use language in bracketed portions as applicable to facts of case. “Clear and

convincing evidence” is defined in Standard Criminal Instruction 5(b)(2).

The bracketed list in the third sentence is not exhaustive. The trial court should include

in the instruction the specific relevant purpose or purposes for which the evidence was

admitted. For a broad listing of relevant purposes, see M.

UDALL ET AL., LAW OF EVIDENCE

§ 84, at 182-89 (3d ed. 1991). If the defendant requests a limiting instruction, the trial court

MUST give a limiting instruction. State v. Ives, 187 Ariz. 102, 111, 927 P.2d 762, 771 (1996).

OMMENT: Based on Arizona Supreme Court cases, the Committee recommends that the

trial court conduct a Rule 403 balancing and state on the record that it has done so. See State

v. Hughes, 189 Ariz. 62, 68, 938 P.2d 457, 463 (1997); State v. Ives, 187 Ariz. 102, 111, 927 P.2d

762, 771 (1996); State v. Dickens, 187 Ariz. 1, 19, 926 P.2d 468, 486 (1996); State v. Taylor, 169

Ariz. 121, 125-26, 817 P.2d 488, 492-93 (1991). But see State v. Cannon, 148 Ariz. 72, 76, 713

P.2d 273, 277 (1985) (when defendant makes Rule 404(b) objection, trial court not required

sua sponte to conduct Rule 403 balancing).

Standard Criminal 25 − Character Evidence in Sexual Misconduct Cases

Evidence of other acts has been presented. [Evidence to rebut this has also been

presented.] You may consider this evidence in determining whether the defendant had a

STANDARD INSTRUCTIONS

character trait that predisposed [him][her] to commit the [crime][crimes] charged. You may

determine that the defendant had a character trait that predisposed [him][her] to commit the

[crime][crimes] charged only if you decide that the State has proved by clear and convincing

evidence that:

1. The defendant committed these acts; and

2. These acts show the defendant’s character predisposed [him][her] to commit

abnormal or unnatural sexual acts.

You may not convict the defendant of the [crime][crimes] charged simply because you

find that [he][she] committed these acts, or that [he][she] had a character trait that

predisposed [him][her] to commit the [crime][crimes] charged.

Evidence of these acts does not lessen the State’s burden to prove the defendant’s guilt

beyond a reasonable doubt.

SOURCE: RAJI (Criminal) No. 26B (1996); Rule 404(c), Arizona Rules of Evidence (statutory

language as of Nov. 1, 1988); A.R.S. § 13-1420 (statutory language as of April 28, 1997); State

v. Terrazas, 189 Ariz. 580, 583, 944 P.2d 1194, 1197 (1997) (added the requirement of proof

by clear and convincing evidence).

SE NOTE: Use language in bracketed portions as applicable to facts of case. “Clear and

convincing evidence” is defined in Standard Criminal Instruction 5(b)(2).

Under Ariz. R. Evid. 404(c)(2), the trial court MUST give a limiting instruction. This

instruction replaces RAJI (Criminal) No. 14.101, Previous Sexual Acts (1989).

OMMENT: Under Ariz. R. Evid. 404(c)(1)(A) and (B), the trial court must make preliminary

specific findings, and under Ariz. R. Evid. 404(c)(1)(C), it MUST conduct a Ariz. R. Evid.

403 balancing.

The Committee preferred the language “abnormal or unnatural sexual acts” rather than

“aberrant sexual propensity” because “aberrant sexual propensity” is difficult to understand

and define.

Standard Criminal 26 − Character and Reputation of the Defendant

You have heard evidence of the defendant’s character for [truthfulness,] [peacefulness,]

[honesty,] [etc.]. In deciding this case, you should consider that evidence together with, and

in the same manner as, all the other evidence in the case.

SOURCE: RAJI (Criminal) No. 8 (1996); State v. Childs, 113 Ariz. 318, 322, 553 P.2d 1192,

1196 (1976); State v. Vild, 155 Ariz. 374, 379-380, 746 P.2d 1304, 1309-1310 (App. 1987).

Standard Criminal 27− Facility Dog

A witness may be accompanied by a dog while testifying in court. The dog’s presence is

not and should not be a reflection on the truthfulness or credibility of any testimony that is

offered by the witness. The dog is trained to assist witnesses in court proceedings. The

presence of the dog should not influence your deliberations in any way.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

SOURCE: A.R.S. § 13-4442 (statutory language as of August 3, 2018).

Standard Criminal 28 − Absence of Other Participant

The only matter for you to determine is whether the State has proved the defendant

guilty beyond a reasonable doubt. The defendant’s guilt or innocence is not affected by the

fact that another person or persons might have participated or cooperated in the crime and

is not on trial now. You should not guess about the reason any other person is absent from

the courtroom.

SOURCE: RAJI (Criminal) No. 12 (1996); State v. Cannon, 148 Ariz. 72, 79-80, 713 P.2d 273,

280-81 (1985).

Standard Criminal 29 − Consider Evidence Separately

There are ___ defendants. You must consider the evidence in the case as a whole.

However, you must consider the charge[s] against each defendant separately.

Each defendant is entitled to have the jury determine the verdict as to each of the crimes

charged based upon that defendant’s own conduct and from the evidence which applies to

that defendant, as if that defendant were being tried alone.

The defendant’s conduct may include acting as [a principal] [an accomplice] [a co-

conspirator].

SOURCE: RAJI (Criminal) No. 32 (1996); Zafiro v. United States, 506 U.S. 534 (1993); State v.

Runningeagle, 176 Ariz. 59, 68, 859 P.2d 169, 178 (1993).

SE NOTE: Use language in bracketed portions as applicable to the facts of the case.

If applicable, the court shall instruct on accomplice liability [See Statutory Criminal

Instruction 3.01] or conspiracy [See Statutory Criminal Instruction 10.03].

Standard Criminal 30 − Separate Counts

Each count charges a separate and distinct offense. You must decide each count

separately on the evidence with the law applicable to it, uninfluenced by your decision on

any other count. You may find that the State has proved beyond a reasonable doubt, all,

some, or none of the charged offenses. Your finding for each count must be stated in a

separate verdict.

SOURCE: RAJI (Criminal) No. 35 (1996); State v. Hoskins, 199 Ariz. 127, 145, 12 P.3d 997,

1015 (2000); State v. Parra, 10 Ariz. App. 427, 431, 459 P.2d 344, 348 (1969).

STANDARD INSTRUCTIONS

Standard Criminal 31 − Dismissal/Severance of Some Charges Against Defendant

At the beginning of the trial, the charge[s] against the defendant [was][were] read to you.

[Specify count[s] or charge[s]] [is] [are] no longer before you. You should not speculate

about why the charge[s] [is] [are] no longer part of this trial.

The defendant is on trial only for the charge[s] of [remaining count[s]]. You may

consider the evidence presented only as it relates to the remaining count[s].

OURCE: Federal Jury Instruction 2.13.

SE NOTE: This instruction should be given to the jury during the trial after the dismissal or

severance of charges, and should be be given again in the final instructions.

Standard Criminal 32 − Disposition of Charge Against Defendant

For reasons that do not concern you, the case against codefendant [name] is no longer

before you. Do not speculate why. This fact should not influence your verdict[s] with

reference to the remaining defendant[s], and you must base your verdict[s] solely on the

evidence against the remaining defendant[s].

SOURCE: Federal Jury Instruction 2.14.

SE NOTE: This instruction should be given to the jury during the trial after the dismissal of

a codefendant from the case, and should be given again in the final instructions.

It may not be appropriate to give this instruction if the defense is based on third-party

culpability of a dismissed codefendant.

Standard Criminal 33 − Multiple Acts

The defendant is accused of having committed the crime of _____ [in Count _____].

The prosecution has introduced evidence for the purpose of showing that there is more than

one [act] [or] [omission] upon which a conviction [on Count ____] may be based. Defendant

may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed

any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty

[to Count _____], all jurors must agree that [he] [she] committed the same [act] [or]

[omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or]

[omission] agreed upon be stated in your verdict.

SOURCE: CALJIC 17.01 (West 2008).

SE NOTES: In State v. Klokic, 219 Ariz. 241, 244, ¶14, 196 P.3d 844, 847 (App. 2008), the

court wrote:

“[I]n drafting an indictment, the State may choose to charge as one count

separate criminal acts that occurred during the course of a single criminal

undertaking even if those acts might otherwise provide a basis for charging

multiple criminal violations. In such cases, however, if the State introduces

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

evidence of multiple criminal acts to prove a single charge, the trial court is

normally obliged to take one of two remedial measures to insure that the

defendant receives a unanimous jury verdict.”

One of these measures is to, “instruct the jury that they must agree unanimously on a

specific act that constitutes the crime before the defendant can be found guilty.” Id.,

(footnote and citations omitted).

Standard Criminal 34 − Reserved

Standard Criminal 35 − Voluntary Act

Before you may convict the defendant of the charged crime(s), you must find that the

State proved beyond a reasonable doubt that the defendant [committed a voluntary act]

[omitted to perform a duty imposed upon the defendant by law that the defendant was

capable of performing]. A voluntary act means a bodily movement performed consciously

and as a result of effort and determination. You must consider all the evidence in deciding

whether the defendant [committed the act voluntarily] [failed to perform the duty imposed

on the defendant].

SOURCE: RAJI (Criminal) No. 17 (1996); A.R.S. §§ 13-105 (statutory language as of April 19,

1994) and 13-201 (statutory language as of October 1, 1978); State v. Lara, 183 Ariz. 233,

234-35, 902 P.2d 1337, 1338-39 (1995).

SE NOTE: The appropriate bracketed language should be used in cases depending on

whether a defendant is accused of committing a voluntary act or failing to perform a duty

imposed by law. “Voluntary act” is defined in A.R.S. § 13-105.

Standard Criminal 36 − Lesser-Included Offense

The crime of [_________] includes the lesser offense of [___________]. You may

consider the lesser offense of [__________] if either

1. you find the defendant not guilty of [insert the greater offense]; or

2. after full and careful consideration of the facts, you cannot agree on whether to find

the defendant guilty or not guilty of [insert the greater offense].

You cannot find the defendant guilty of [insert the lesser offense] unless you find that

the State has proved each element of [insert the lesser offense] beyond a reasonable doubt.

SOURCE: RAJI (Criminal) No. 22; State v. LeBlanc, 186 Ariz. 437, 439-40, 924 P.2d 441, 443-

44 (1996).

SE NOTE: In determining whether an instruction on a lesser-included offense is proper,

the Arizona Supreme Court has set forth a two-part test: (1) whether the offense is a lesser-

included offense of the crime charged, and (2) whether the evidence otherwise supports the

STANDARD INSTRUCTIONS

giving of the instruction. State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989), cert.

denied, 497 U.S. 1033 (1990); State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983).

To determine whether a lesser-included offense instruction is warranted, the trial court

may consider whether by its very nature the included offense is always a constituent part of

the greater offense or whether the terms of the charging document describe the lesser

offense even though the lesser offense would not always form a constituent part of the

greater offense. State v. Gooch, 139 Ariz. 365, 366, 678 P.2d 946, 947 (1984); State v. Magana,

178 Ariz. 416, 418, 874 P.2d 973, 975 (App. 1994).

As a general rule, a defendant is entitled to a lesser-included offense instruction if there

is evidence from which the jury could convict on the lesser offense and find that the State

failed to prove an element of the greater offense. State v. Jansing, 186 Ariz. 63, 68, 918 P.2d

1081, 1086 (1996); State v. Ruelas, 165 Ariz. 326, 328, 798 P.2d 1335, 1337 (App. 1990); State

v. Conroy, 131 Ariz. 528, 532, 642 P.2d 873, 877 (App. 1982). The evidence supporting the

lesser-included offense may be circumstantial and it may be in dispute. State v. Cousin, 136

Ariz. 83, 87, 664 P.2d 233, 237 (App. 1983).

When the record is such that the defendant is either guilty of the crime charged or not

guilty, the trial court should refuse to give a lesser-included instruction. State v. Jackson, 186

Ariz. 20, 27, 918 P.2d 1038, 1045 (1996); State v. Salazar, 173 Ariz. 399, 408, 844 P.2d 566,

575 (1992), cert. denied, 509 U.S. 912 (1993); State v. Williams, 144 Ariz. 479, 486, 698 P.2d 724,

731 (1985); State v. Gendron, 166 Ariz. 562, 566, 804 P.2d 95, 99 (App. 1990).

OMMENT: Where the evidence could support a conviction for a lesser offense, however,

the trial court must not refuse to give it on the ground that the defendant pursued an “all-or-

nothing” defense before the jury. State v. Wall, 212 Ariz. 1 (2006).

The trial court should not refuse to give a lesser offense instruction on the ground that

the lesser offense is not entirely subsumed by the greater offense. State v. Lua, 237 Ariz. 301

(2015).

Standard Criminal 37 − Possession Defined

The law recognizes different types of possession.

“Actual possession” means the defendant knowingly had direct physical control over an

object.

“Constructive possession” means the defendant, although not actually possessing an

object, knowingly exercised dominion or control over it, either acting alone or through

another person. “Dominion or control” means either actual ownership of the object or

power over it. Constructive possession may be proven by direct or circumstantial evidence.

Both actual and constructive possession may be sole or joint. “Sole possession” means

the defendant, acting alone, had actual or constructive possession of an object. “Joint

possession” means the defendant and one or more persons shared actual or constructive

possession of an object.

You may find that the element of possession, as the term is used in these instructions, is

present if you find beyond a reasonable doubt that the defendant had actual or constructive

possession, either acting alone or with another person.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

SOURCE: RAJI (Rev. Criminal) No. 37 (1996); A.R.S. § 13-105; (statutory language as of

September 21, 2006); State v. Cox, 214 Ariz. 518, 520, 155 P.3d 357, 359 (App. 2007); State v.

Barreras, 112 Ariz. 421, 422-23, 542 P.2d 1120, 1121-22 (1975); State v. Scarborough, 110 Ariz.

1, 2, 5, 514 P.2d 997, 998, 1001 (1973); State v. Arce, 107 Ariz. 156, 163, 483 P.2d 1395, 1402

(1971).

Standard Criminal 38 − Deliberate Ignorance

The State is required to prove beyond a reasonable doubt that the defendant knew that

[he] [she] was [transporting] [in possession of] [transferring] {insert name of illegal drug}. That

knowledge can be established by either direct or circumstantial evidence showing that the

defendant was aware of the high probability that the [package(s)] [container(s)] [vehicle]

contained {insert name of illegal drug}, and that the defendant acted with conscious purpose to

avoid learning the true contents of the [package(s)] [container(s)] [vehicle]. You may not find

such knowledge, however, if you find that the defendant actually believed that no {insert name

of illegal drug} were in the [vehicle driven by the defendant] [package(s)] [container], or if you

find that the defendant was simply careless.

SOURCE: State v. Haas, 138 Ariz. 413, 675 P.2d 673 (1983); State v. Diaz, 166 Ariz. 442, 803

P.2d 435 (App. 1990), vacated in part on other grounds, 168 Ariz. 363, 813 P.2d. 728 (1991); State

v. Fierro, 220 Ariz. 337, 206 P.3d 786 (App. 2008); United States v. Heredia, 483 F.3d 913 (9th

Cir. 2007).

SE NOTE: This instruction is drafted in the context of a drug offense because the issue of

deliberate ignorance appears most often in that context. For example, in State v. Diaz, 166

Ariz. 442, 803 P.2d 435 (App. 1990), vacated in part on other grounds, 168 Ariz. 363, 813 P.2d.

728 (1991) the defendant was charged with transporting marijuana. Although the defendant

admitted being told that the truck contained “drugs,” the defendant claimed he did not know

the true contents of the truck. Addressing defendant’s claim of ignorance, the court wrote:

We agree with appellant that the instruction given was improper. First, the

court refused appellant's request that it define the term “illegal substance.”

That term could include innumerable items both within and without the list

of drug offenses. Secondly, the statute under which appellant was charged

requires the state to prove that the defendant knowingly transported or

transferred a narcotic drug. A.R.S. § 13-3408(A)(7); see State v. Arce, 107 Ariz.

156, 483 P.2d 1395 (1971). The state is thus required to show that appellant

knew that what he was transporting was a narcotic drug, not an illegal

substance. That knowledge can be established either by direct or

circumstantial evidence. It can be established by showing that appellant was

aware of the high probability that the packages contained a narcotic drug

and that he acted with a conscious purpose to avoid learning the true

contents of the packages. United States v. Lopez-Martinez, 725 F.2d 471 (9th

Cir.), cert. denied, 469 U.S. 837, 105 S. Ct. 134, 83 L. Ed. 2d 74 (1984). Any

self-imposed ignorance cannot protect appellant from criminal

responsibility.

166 Ariz. at 445, 803 P.2d at 438.

STANDARD INSTRUCTIONS

Deliberate ignorance can be an issue in other types of cases. E.g., see, State v. Haas, 138

Ariz. 413, 420, 675 P.2d 673, 680 (1983) (“Thus, the jury could easily have concluded that

even if defendant had no actual knowledge of the fraud, he was aware of the high probability

that the scheme was fraudulent and deliberately shut his eyes to avoid learning the truth.

Such a conclusion justifies the ultimate inference of knowing participation.”) The instruction

should be modified to reflect the nature of the case and the type of knowledge required to

be proved.

OMMENT: Users are referred to A.R.S. § 13-204 and Ninth Circuit Model Criminal Jury

Instruction 5.7. Some members of the committee felt that the “high probability” language

could be confusing to the jury in light of the Portillo instruction.

The instruction should only be given “’when the defendant claims a lack of guilty

knowledge and there are facts and evidence that support an inference of deliberate

ignorance.” United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir.1984), cert. denied, 474 U.S.

829, 106 S. Ct. 92, 88 L. Ed.2d 76 (1985). The reason such an instruction should not be

given in all cases is “because of the possibility that the jury will be led to employ a negligence

standard and convict a defendant on the impermissible ground that he should have known

[an illegal act] was taking place.” United States v. Beckett, 724 F.2d 855, 856 (9th Cir.1984) (per

curiam).” United States v. White, 794 F.2d 367, 371 (8th Cir. 1986).

Standard Criminal 39 − Involuntary Intoxication

Unlike voluntary intoxication, intoxication resulting from the involuntary use of alcohol

or drugs may be considered in deciding whether the defendant had the mental state required

to prove an offense. The State has the burden of proving beyond a reasonable doubt all the

elements of the offense, including the required mental state.

If you determine that the defendant became intoxicated solely as a result of drugs or

alcohol administered to [him] [her] against [his] [her] will or without [his] [her] knowledge,

you should then consider whether the involuntary intoxication prevented the defendant

from acting with a particular mental state or states required to establish the offense.

If you have a reasonable doubt that the defendant had the required mental state for the

offense, you must find the defendant “not guilty.”

SOURCE: State v. Edmisten, 220 Ariz. 517, 521, ¶ 9, 207 P.3d 770, 774 (App. 2009); State v.

McKeon, 201 Ariz. 571, 38 P.3d 1236 (App. 2002).

SE NOTE: The court should also consider giving the voluntary intoxication instruction,

Criminal Jury Instruction 1.0538.

Comment: A.R.S. § 13-503 provides that “the abuse of prescribed medications does not

constitute insanity and is not a defense for any criminal act or requisite state of mind.” This

phrase suggests that this instruction may apply if the defendant presents evidence that the

intoxication resulted from the non-abuse of prescription medication. If so, the following

“non-abuse” language may be considered for use:

If you find that the defendant became intoxicated solely as a result of the

non-abuse of prescription medication, you should then consider whether the

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

degree of intoxication caused the defendant to be unable to act with the

mental state[s] required to establish the offense[s].

Standard Criminal 40 − Flight or Concealment

In determining whether the State has proved the defendant guilty beyond a reasonable

doubt, you may consider any evidence of the defendant’s running away, hiding, or

concealing evidence, together with all the other evidence in the case. [You may also consider

the defendant’s reasons for running away, hiding, or concealing evidence.] Running away,

hiding, or concealing evidence after a crime has been committed does not by itself prove

guilt.

SOURCE: RAJI (Criminal) No. 9 (1996).

SE NOTE: Use language in brackets if supported by the facts. Case law allows the jury to

consider the defendant’s offered reasons for the alleged flight or concealment. State v. Hunter,

136 Ariz. 45, 49, 664 P.2d 195, 199 (1983). Thus, the bracketed language should be given

only upon the defendant’s request.

“Use of the flight instruction is proper where the circumstances of leaving the crime

scene reveal a defendant’s consciousness of guilt. . . . It is not necessary to show that law

enforcement officers were pursuing the defendant at the time in order to satisfy the

‘consciousness of guilt’ requirement.” Merely leaving the crime scene is not tantamount to

flight. The inquiry focuses on “whether [the defendant] voluntarily withdrew himself in

order to avoid arrest or detention.” State v. Wilson, 185 Ariz. 254, 257, 914 P.2d 1346, 1349

(App. 1995). “A two-fold test must be applied to determine whether a flight instruction

should be given. First, the evidence is viewed to ascertain whether it supports a reasonable

inference that the flight or attempted flight was open, such as the result of an immediate

pursuit. If this is not the case then the evidence must support the inference that the accused

utilized the element of concealment or attempted concealment. The absence of any evidence

supporting either of these findings would mean that the giving of an instruction on flight

would be prejudicial error.” Wilson, supra, 185 at 257, 914 at 1349. Depending on the facts,

the failure of a defendant to appear at trial may be justification for the court to give a flight

instruction. State v. Roderick, 9 Ariz. App. 19, 22-23, 448 P.2d 891, 894-95 (1968). Absence of

the defendant at the time set for trial after being released on bond, is insufficient to support

an inference of the element of concealment or attempted concealment, which is essential to

warrant the giving of a flight instruction unless the flight or attempted flight is open, as upon

immediate pursuit. State v. Camino, 118 Ariz. 89, 91, 574 P.2d 1308, 1310 (App. 1977).

Standard Criminal 41 − Threats by Defendant

In determining whether the State has proved the defendant guilty beyond a reasonable

doubt, you may consider, along with all the other evidence in the case, evidence that the

defendant sought to influence testimony by threatening a witness to the alleged offense.

Such threats do not by themselves prove guilt.

STANDARD INSTRUCTIONS

SOURCE: RAJI (Criminal) No. 14 (1996); State v. Settle, 111 Ariz. 394, 397, 531 P.2d 151, 154

(1975); State v. Contreras, 122 Ariz. 478, 481, 595 P.2d 1023, 1026 (App. 1979).

Standard Criminal 42 − Lost, Destroyed, or Unpreserved Evidence

If you find that the State has lost, destroyed, or failed to preserve evidence whose

contents or quality are important to the issues in this case, then you should weigh the

explanation, if any, given for the loss or unavailability of the evidence. If you find that any

such explanation is inadequate, then you may draw an inference unfavorable to the State,

which in itself may create a reasonable doubt as to the defendant’s guilt.

SOURCE: State v. Willits, 96 Ariz. 184, 187, 393 P.2d 274, 277-78 (1964); State v. Eagle, 196

Ariz. 27, 31, 992 P.2d 1122, 1126 (App. 1998) and State v. Tucker, 157 Ariz. 433, 443, 759

P.2d 579, 589 (1988); State v. Glissendorf, 235 Ariz. 147, ¶¶ 7-19, 329 p.3d 1049 (2014).

SE NOTE: “A Willits instruction is appropriate when the State destroys or loses evidence

potentially helpful to the defendant.” State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566

(1995) (quoting State v. Lopez, 163 Ariz. 108, 113, 786 P.2d 959, 964 (1990)). However, the

destruction or nonretention of evidence does not automatically entitle a defendant to a

Willits instruction. Id. A Willits instruction is not given merely because a more exhaustive

investigation could have been made. To merit the instruction, a defendant must show “(1)

that the State failed to preserve material and reasonably accessible evidence having a

tendency to exonerate [the defendant], and (2) that this failure resulted in prejudice.” Murray,

id. (citing State v. Henry, 176 Ariz. 569, 863 P.2d 861 (1993)).

OMMENT: The instruction restores the language of Willits, which stated that the jury “may

infer” that the evidence was unfavorable to the State. The 1996 Revised Instruction changed

that permissive inference to a mandatory one (jury “should assume”). In Eagle, supra, 196

Ariz. at 31, 992 P.2d at 1126, the Arizona Court of Appeals noted that the 1996 Revised

Instruction’s language did not follow the permissive inference language of Willits.

In Sate v. Glissendorf, 235 Ariz. 147, ¶¶ 7-19, 329 P.3d 1049 (2014), the Arizona Supreme

Court explained that the standard for giving a Willits instruction requires only that the lost

evidence would have been “potentially helpful” or “potentially useful” to the defense. The

court, at ¶¶ 17-18, specifically held that an entire line of cases from Division One of the

Court of Appeals applied an erroneous standard for giving a Willits instruction.

Standard Criminal 43 − Mere Presence

Guilt cannot be established by the defendant's mere presence at a crime scene, mere

association with another person at a crime scene or mere knowledge that a crime is being

committed. The fact that the defendant may have been present, or knew that a crime was

being committed, does not in and of itself make the defendant guilty of the crime charged.

One who is merely present is a passive observer who lacked criminal intent and did not

participate in the crime.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

SOURCE: State v. Doerr, 193 Ariz. 56, 65, 969 P.2d 1168, 1177 (1998); State v. Noriega, 187

Ariz. 282, 286, 928 P.2d 706, 710 (App. 1996).

SE NOTE: In a prosecution for accomplice liability based on actual presence, the trial judge

must, if requested, give a mere presence instruction. State v. Noriega, supra, (reversible error to

refuse to give mere presence instruction in this circumstance). However, the instruction

must be supported by competent evidence. State v. Portillo, 179 Ariz. 116, 119, 876 P.2d 1151,

1154, affirmed in part, vacated in part on other grounds, 182 Ariz. 592, 898 P.2d 970 (1995); State v.

Martinez, 175 Ariz. 114, 118, 854 P.2d 147, 151 (App. 1993) (trial court properly refused to

give a mere presence instruction where the defendant’s presence at the crime scene was not

an issue and the instruction did not fit the facts).

Standard Criminal 44 − Motive

The State need not prove motive, but you may consider motive or lack of motive in

reaching your verdict.

SOURCE: RAJI (Criminal) No. 38 (1996); State v. Tucker, 157 Ariz. 433, 447, 759 P.2d 579,

593 (1988); State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 220 (1983).

OMMENT: The court’s failure to instruct the jury on motive did not deny defendant a fair

trial. State v. Tucker, 157 Ariz. 433, 447, 759 P.2d 579, 593 (1986). The presence or absence of

motive is relevant in a murder prosecution and a proper motive instruction should be given

upon request. Id.

Motive is not an element of the crime of murder; nonetheless, in a murder prosecution,

the presence or absence of motive is relevant. State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195,

200 (1983).

Standard Criminal 45 − Identification

The State must prove beyond a reasonable doubt that the in-court identification of the

defendant at this trial is reliable. In determining whether this in-court identification is reliable

you may consider such things as:

1. the witness’ opportunity to view at the time of the crime;

2. the witness’ degree of attention at the time of the crime;

3. the accuracy of any descriptions the witness made prior to the pretrial identification;

4. the witness’ level of certainty at the time of the pretrial identification;

5. the time between the crime and the pretrial identification;

6. any other factor that affects the reliability of the identification.

If you determine that the in-court identification of the defendant at this trial is not

reliable, then you must not consider that identification.

STANDARD INSTRUCTIONS

SOURCE: RAJI (Criminal) No. 39 (1996); State v. Dessureault, 104 Ariz. 380, 381-85 453 P.2d

951, 952-56 (1969), cert. denied, 397 U.S. 965 (1970). See also; Manson v. Brathwaite, 432 U.S. 98

(1977); Neil v. Biggers, 409 U.S. 188 (1972).

SE NOTE: This instruction must be given, upon request, when the defendant has shown

suggestive circumstances attendant to a pretrial identification that tend to bring the reliability

of the identification testimony into question. State v. Nottingham, 231 Ariz. 21, 289 P.3d 949

(App. 2012); Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716 (2012).

Standard Criminal 46 − Alibi or Non-Presence of the Defendant

The State has the burden of proving that the defendant was present at the time and place

the alleged crime was committed. If you have a reasonable doubt whether the defendant was

present at the time and place the alleged crime was committed, you must find the defendant

not guilty.

Standard Criminal 47 − Third Party Culpability

The State has the burden of proving that the defendant is the person who committed the

alleged crime[s]. If you have a reasonable doubt whether the defendant committed the

alleged crime[s] because the crime may have been committed by a third party, you must find

the defendant not guilty.

SOURCE: Standard Criminal 43 (Alibi or Non-Presence of the Defendant) (noting

conceptual similarity between alibi and third party culpability).

SE NOTE: Although instructions should be given on any theory of the case reasonably

supported by the evidence, failure to give a third party culpability instruction sua sponte does

not rise to the level of fundamental error. State v. Parker, 231 Ariz. 391, ¶¶ 51-56, 296 P.3d

54, 67-68 (2013).

COMMENT: In State v. Parker, 231 Ariz. 391, ¶¶ 51-56, 296 P.3d 54, 67-68 (2013), the

Arizona Supreme Court found no error in the trial court’s failure sua sponte to give a proper

third party culpability instruction when trial counsel’s requested instruction violated the

constitutional prohibition against commenting on the evidence and trial counsel refused the

trial judge’s invitation to modify the requested instruction.

On the other hand, in State v. Rodriguez, 192 Ariz. 58, 61-63 ¶¶ 16-26, 961 P.2d 1006,

1009-11 (1998), the Supreme Court found reversible error where a requested alibi instruction

was denied. In Rodriguez, the Supreme Court noted that alibi is not an affirmative defense

and thus would fall under the “aegis of a general denial” of the charges, reliance on other

instructions regarding the state’s requirement to prove guilt would be “inconsistent with the

general rule entitling a party to an instruction on any theory reasonably supported by the

evidence.” Id. at 63 ¶¶ 23-24, 961 P.2d at 1011. See also State v. Edmisten, 220 Ariz. 517, 524 ¶

21, 207 P.3d 770, 777 (App. 2009) (distinguishing harmless error review conducted in

Rodriguez from the fundamental error review Court of Appeals must apply when trial counsel

failed to preserve error for appeal).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

Standard Criminal 48 − Reserved

Standard Criminal 49 − Reserved

Standard Criminal 50 − Reserved

Standard Criminal 51 − Jury Foreperson

When you go to the jury room you will choose a foreperson.

The role of jury foreperson is important, but please remember that the foreperson’s

opinion about the case is not more important than that of the other jurors. The opinions of

each juror count equally.

The jury foreperson’s responsibilities include the following:

1. Make sure every member of the jury is present during all discussions and

deliberations.

2. Preside over deliberations and make sure that the deliberations are conducted

respectfully and that all issues are fully discussed. The discussions should be open and free

so that every juror may participate.

3. All jurors should be allowed to state their views about the case and what they think

the verdict should be and why.

4. All members must agree unanimously on any verdict. Therefore, the foreperson

should count the votes to ensure that every juror has voted.

5. If you reach a verdict [verdicts], fill out the verdict form[s] and then sign the form

on behalf of the jury.

6. If the jury reaches a verdict, the foreperson will inform the bailiff. When the jury

returns to the courtroom, the foreperson will bring the signed or unsigned verdict form[s] as

well as any question forms that may have been used.

7. When you return to the courtroom, the court will ask the foreperson whether the

jury has reached any verdict. The foreperson will respond “yes” or “no.” The foreperson is

not expected to read any verdict to the court; that will be done by the clerk.

COMMENT: This instruction was developed based on a 1999 publication by the American

Judicature Society entitled “Behind Closed Doors, A Resource Manual to Improve Jury

Deliberations

Standard Criminal 52 − Closing Instruction

The case is now submitted to you for decision. When you go to the jury room you will

choose a Foreperson. He or she will preside over your deliberations.

STANDARD INSTRUCTIONS

I suggest that you discuss and then set your deliberation schedule. You are in charge of

your schedule, and may set and vary it by agreement and the approval of the Court. After

you have decided on a schedule, please advise the bailiff.

You are to discuss the case and deliberate only when all jurors are together in the jury

room. You are not to discuss the case with each other or anyone else during breaks or

recesses. The admonition I have given you during the trial remains in effect when all of you

are not in the jury room deliberating.

After setting your schedule, I suggest that you next review the written jury instructions

and verdict [form] [forms]. It may be helpful for you to discuss the instructions and verdict

[form] [forms] to make sure that you understand them. Again, during your deliberations you

must follow the instructions and refer to them to answer any questions about applicable law,

procedure and definitions.

Should any of you, or the jury as a whole, have a question for me during your

deliberations or wish to communicate with me on any other matter, please utilize the jury

question form that we will provide you. Your question or message must be communicated to

me in writing and must be signed by you or the Foreperson.

I will consider your question or note and consult with counsel before answering it in

writing. I will answer it as quickly as possible.

Remember that you are not to tell anyone, including me, how you stand, numerically or

otherwise, until after you have reached a verdict or have been discharged.

All [eight] [twelve] of you must agree on [the] [each] verdict. You must be unanimous.

Once all [eight] [twelve] agree on a verdict, only the Foreperson need sign the verdict form

on the line marked “Foreperson.”

You will be given [insert number] form(s) of verdict. The verdict form(s) read as follows

and there is no significance to the order in which the options of “guilty,” “not guilty,”

[“unable to agree”] [“proven”] [“not proven”] are listed on the verdict [form] [forms]:

USE NOTE: Use bracketed language as appropriate to the case.

Standard Criminal 53 − Impasse Instruction

This is offered to help you, not to force you to reach a verdict.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort

to reach a just verdict. Each of you must decide the case for yourself, but only after you

consider the evidence impartially with your fellow jurors. During your deliberations, you should

not hesitate to re-examine your own views and change your opinion if you become convinced

that it is wrong. However, you should not change your belief concerning the weight or effect of

the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of

returning a verdict.

You may wish to identify areas of agreement and disagreement and then discuss the law and

the evidence as they relate to the areas of disagreement.

If you still disagree, you may wish to tell the attorneys and me which issues, questions, law

or facts you would like us to assist you with. If you decide to follow these steps, please write

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

down the issues where further assistance might help bring about a verdict and give the note to

the bailiff. The attorneys and I will then discuss your note and try to help you.

I do not wish or intend to force a verdict. We are merely trying to be responsive to your

apparent need for help. If it is possible that you could reach a verdict as a result of this

procedure, you should consider doing so.

Please take a few minutes and discuss this instruction among yourselves. Then advise me in

writing of whether we can attempt to assist you in the manner indicated above or whether you

do not believe that such assistance and additional deliberation would assist you in reaching a

verdict.

SOURCE: Comment to Rule 22.4, Arizona Rules of Criminal Procedure, as amended;

Comment to Rule 39(h), Arizona Rules of Criminal Procedure, as amended (Trb. 2016);

Capital Case Instruction 2.4, RAJI Criminal 4th.

OMMENT: Before giving an impasse instruction, the trial judge must determine whether

the jury is at an impasse because “prematurely giving an impasse instruction may * * * be a

form of coercion.” State v. Fernandez, 216 Ariz. 545, 550, ¶ 13, 169 Ariz. 641, 646 (App.

2007); State v. Huerstel, 206 Ariz. 93, 99, ¶ 17, 101, ¶ 25, 75 P.3d 698, 704, 706 (2003).

Where a jury has not reached a unanimous decision and has notified the court, the trial

judge should ask the jury whether it is at an impasse and needs assistance from the court. If

the jurors indicate their decision is final, the impasse instruction is not appropriate. State v.

Kuhs, 223 Ariz. 376, 385, 224 P.3d 192, 201 (2010).

In 2016-2017, the Criminal Rules Task Force recommended to the Supreme Court that

most of the comments to the Arizona Rules of Criminal Procedure be deleted. The adoption

of Standard 42 provided judges and practitioners with a more readily accessible source for

the impasse instruction, thus rendering the comments to the rules duplicative and

unnecessary.

Standard Criminal 54 − Reconstituting the Jury

Members of the jury, I have replaced a deliberating juror with an alternate juror. The

alternate juror will now be a deliberating juror. Please do not speculate or guess about the

reasons for this change.

You remain under the admonitions previously given to you. You are also required to

follow the final jury instructions previously provided and read to you.

You are to start your deliberations anew, starting with selection of a [Presiding Juror]

[Jury Foreperson]. Any preliminary or final decisions you may have made about [any aspect

of the case] [this phase] must be set aside and discussed anew. You shall not consider any

part of your prior deliberations and/or discussions.

[For capital case sentencing proceedings and non-capital aggravation proceedings (in

which the alternate juror has been present during the aggravation proceeding), add the

following: You shall begin anew only for the phase you are currently deliberating. You shall

not deliberate anew about a verdict(s) already reached and entered.]

STANDARD INSTRUCTIONS

SOURCE: Rule 18.5(h) and (i), Arizona Rules of Criminal Procedure; State v. Martinez, 198

Ariz. 5, 7, 6 P.3d 310, 312 (App. 2000).

SE NOTE: Use bracketed language as appropriate to the case.

Standard Criminal 55 − Jury Polling

In a moment, the clerk will ask each of you the following question: “Is this [Are these]

your True Verdict[s]?” You need only answer “yes” or “no” to the question. The question is

intended to determine whether you individually agree with the verdict[s] that [has][have]

been announced here in court. If you now disagree for any reason with the verdict[s] that

[has][have] been announced here in court, now is the time to tell me by answering “no” to

the question. If you agree with the verdict[s] that [has][have] been announced, please answer

“yes” when asked.

USE NOTE: This instruction should be read before the jury is polled; the judicial officer

should decide whether to poll on each individual count.

CHAPTER 1

STATUTORY DEFINITIONS

1.052 − Definition of “Act”

“Act” means a bodily movement.

1.053 − Definition of “Benefit”

“Benefit” means anything of value or an advantage, present or future.

1.054 − Definition of “Calendar Year”

“Calendar Year” means three hundred sixty-five days actual time served without release,

suspension or commutation of sentence, probation, pardon or parole, work furlough or

release from confinement on any other basis.

1.056 − Definition of “Conduct”

“Conduct” means an act or omission and its accompanying culpable mental state.

1.057 − Definition of “Crime”

“Crime” means a misdemeanor or a felony.

1.058 − Definition of “Criminal Street Gang”

“Criminal street gang” means an ongoing formal or informal association of persons in

which members or associates individually or collectively engage in the commission,

attempted commission, facilitation or solicitation of any felony act and that has at least one

individual who is a criminal street gang member.

1.059 − Definition of “Criminal Street Gang Member”

“Criminal street gang member” means an individual to whom at least two of the

following seven criteria that indicate criminal street gang membership apply:

(a) Self-proclamation.

(b) Witness testimony or official statement.

(d) Paraphernalia or photographs.

(e) Tattoos.

(f) Clothing or colors.

(g) Any other indicia of street gang membership.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

1.0510(a)(1) − Definition of “Intentionally” or “With Intent To”

“Intentionally” [or “with intent to”] as used in these instructions means that a

defendant’s objective is to cause that result or to engage in that conduct.

SOURCE: A.R.S. § 13-105(10)(a).

SE NOTE: Use language in brackets as appropriate to the facts.

The Committee feels that the language of the instruction is more understandable to

jurors than is the statutory language.

Use in conjunction with instructions defining the criminal statute involved.

It is error to instruct that intent may be presumed from an inherently dangerous act.

People v. Burres, 101 Cal. App. 3d 341, 161 Cal. Rptr. 593 (1980).

COMPARABLE INSTRUCTION: CALJIC 3.34 (1979 revision) describes proof of intent by

statement and circumstances.

1.0510(a)(2) − Intent − Inference

Intent may be inferred from all the facts and circumstances disclosed by the evidence. It

need not be established exclusively by direct sensory proof. The existence of intent is one of

the questions of fact for your determination.

SOURCE: State v. Quatsling, 24 Ariz. App. 105, 536 P.2d 226 (1975), with “direct sensory

proof” substituted for the language of the opinion.

1.0510(b) − Definition of “Knowingly”

“Knowingly” means that a defendant acted with awareness of [or belief in] the existence

of conduct or circumstances constituting an offense. It does not mean that a defendant must

have known the conduct is forbidden by law.

[It is no defense that the defendant was not aware of [or could not believe in] the

existence of conduct or circumstances solely because of voluntary intoxication.]

SOURCE: A.R.S. § 13-105(10)(b).

SE NOTE: Use language in brackets as appropriate to the facts.

The Committee feels that the language of the instruction is more understandable to

jurors than is the statutory language.

Use this language where the defendant does not possess actual knowledge but has a

belief that a certain circumstance exists, e.g., believing that property is stolen when in fact it is

not, or believing that a co-conspirator is a trusted accomplice who in fact is an undercover

agent.

CHAPTER 1

Ignorance of the law is no defense. See A.R.S. § 13-204(B). This final sentence is

intended to counter the possibility that jurors may interpret the preceding sentence to

establish that defense. There may be an exception to this general rule in conspiracy cases

involving public welfare offenses. See State v. Gunnison, 127 Ariz. 110, 618 P.2d 604 (1980),

and the comments to Statutory Criminal Instruction 10.031.

1.0510(c) − Definition of “Recklessly (Reckless Disregard)”

“Recklessly [reckless disregard] ________” means that a defendant is aware of and

consciously disregards a substantial and unjustifiable risk that conduct will result in .

The risk must be of such nature and degree that disregarding it is a gross deviation from

what a reasonable person would do in the situation.

[It is no defense that a person who created such a risk was unaware of it solely because

of voluntary intoxication.]

SOURCE: A.R.S. § 13-105(10)(c).

SE NOTE: Use language in brackets as appropriate to the facts.

The Committee believes that the language of the instruction is more understandable to

jurors than is the statutory language.

Insert the appropriate conduct, e.g., “causing any physical injury,” A.R.S. § 13-

1203(A)(1); or “infringing on the inhabitant’s right of privacy,” A.R.S. § 13-1504(A)(2). This

instruction is not necessary in cases of manslaughter under A.R.S. § 13-1103(A)(1) and (3),

second degree murder under A.R.S. § 13-1104(A)(3), endangerment under A.R.S. § 13-1201

and reckless burning under A.R.S. § 13-1702 because “recklessly” has been incorporated in

the instructions defining those crimes.

Insert the appropriate result. Generally, the same language inserted at 2, supra, will

suffice. However, if the charge is criminal damage under A.R.S. § 13-1602(A)(4), the

appropriate language would be “depriv[ing] livestock of access to the only reasonably

available water.” If the charge is trafficking in stolen property under A.R.S. § 13-2306,

“conduct will result in” should be deleted from the first sentence of the instruction and the

following language should be inserted: “[he] [she] possesses property the permanent

identifying features of which, including serial numbers and labels, have been removed or in

any fashion altered.”

Use this sentence only if there is evidence that the defendant was intoxicated.

“Recklessness” is more than merely engaging in “dangerous conduct” because of the

conscious disregard for the known danger. State v. Huffman, 137 Ariz. 300, 670 P.2d 405

(App. 1983).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

1.0510(d) − Criminal Negligence

“Criminal negligence” means, with respect to a result or a circumstance described by a

statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk

that the result will occur or that the circumstance exists. The risk must be of such nature and

degree that the failure to perceive it constitutes a gross deviation from the standard of care

that a reasonable person would observe in the situation.

[It is no defense that the defendant is unaware of or disregards the risk solely because of

voluntary intoxication.]

SOURCE: A.R.S. § 13-105(10)(d).

SE NOTE: This instruction should be used only in those statutes whose mental state

involves the rarely-criminalized standard of negligence, e.g., A.R.S. § 13-1102, negligent

homicide.

1.0510.01 − Included Mental State − Knowingly

If the State is required to prove that the defendant acted “knowingly,” that requirement

is satisfied if the State proves that the defendant acted “intentionally.”

SOURCE: A.R.S. § 13-202(C) (statutory language as of October 1, 1978.)

SE NOTE: Although the source for this instruction is in Chapter 2, the instruction is

included in the Chapter 1 definitions for ease of use.

1.0510.02 − Included Mental State − Recklessly

If the State is required to prove that the defendant acted “recklessly,” that requirement is

satisfied if the State proves that the defendant acted “intentionally” or “knowingly.”

SOURCE: A.R.S. § 13-202(C) (statutory language as of October 1, 1978.)

SE NOTE: Although the source for this instruction is in Chapter 2, the instruction is

included in the Chapter 1 definitions for ease of use.

1.0510.03 − Included Mental State − Criminal Negligence

If the State is required to prove that the defendant acted “with criminal negligence,” that

requirement is satisfied if the State proves that the defendant acted “intentionally,”

“knowingly,” or “recklessly.”

SOURCE: A.R.S. § 13-202(C) (statutory language as of October 1, 1978.)

CHAPTER 1

USE NOTE: Although the source for these three instructions is in Chapter 2, the instructions

are included in the Chapter 1 definitions for ease of use.

1.0512 − Definition of “Dangerous Instrument”

“Dangerous instrument” means anything that is readily capable of causing death or

serious physical injury under the circumstances in which it is [used] [attempted to be used] or

[threatened to be used].

SOURCE: A.R.S. § 13-105(12).

SE NOTE: Use language in brackets as appropriate to the facts.

“Dangerous instrument” as defined by subsection (12) includes a fire, State v. Wilson, 135 Ariz.

395, 661 P.2d 659 (App. 1983) and an automobile when used under circumstances that are

“readily capable of causing death or serious physical injury.” State v. Venegas, 137 Ariz. 171, 669

P.2d 604 (App. 1983). Whether an object is a dangerous instrument is usually a jury question.

State v. Caldera, 141 Ariz. 634, 688 P.2d 642 (1984).

1.0513 − Definition of “Dangerous Offense”

“Dangerous offense” means an offense that involved [the discharge, use or threatening

exhibition of a deadly weapon or dangerous instrument] [the intentional or knowing

infliction of serious physical injury on another person].

USE NOTE: Use language in brackets as appropriate to the facts.

1.0514 − Definition of “Deadly Physical Force”

“Deadly physical force” means either:

1. force which is used with the purpose of causing death or serious physical injury, or

2. force which in the manner of its use is capable of creating a substantial risk of

causing death or serious physical injury.

1.0515 − Definition of “Deadly Weapon”

“Deadly weapon” means anything designed for lethal use, including a firearm.

Use Note: An unloaded gun may qualify as a deadly weapon. A firearm is a deadly weapon

unless it is permanently inoperable. A missing pin makes it only temporarily inoperable. State

v. Spratt, 126 Ariz. 184, 613 P.2d 848 (App. 1980). Whether an object is a deadly weapon is

usually a jury question. State v. Caldera, 141 Ariz. 634, 688 P.2d 642 (1984).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

1.0516 − Definition of “Economic Loss”

“Economic Loss” means any loss incurred by a person as a result of the commission of

an offense. Economic loss includes lost interest, lost earnings and other losses which would

not have been incurred but for the offense. Economic loss does not include losses incurred

by the convicted person, damages for pain and suffering, punitive damages or consequential

damages.

1.0517 − Definition of “Enterprise”

“Enterprise” includes any corporation, association, labor union, or other legal entity.

COMMENT: If the alleged offense is a violation under Chapter 23, the Court should use the

definition of “Enterprise” in Criminal Instruction 23.01.D.02 instead of this instruction.

1.0518 − Definition of “Felony”

“Felony” means an offense for which a sentence to a term of imprisonment in the

custody of the state department of corrections is authorized by any law of this state.

1.0519 − Definition of “Firearm”

“Firearm” means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or

other weapon that will or is designed to or may readily be converted to expel a projectile by

the action of expanding gases [except that it does not include a firearm in permanently

inoperable condition.]

USE NOTE: Language contained in the brackets should only be used when evidence is

presented raising a reasonable doubt as to the operability of the firearm. State v.

Rosthenhausier, 147 Ariz. 486, 493, 711 P.2d 625, 632 (App. 1985) cited with approval in State v.

Valles, 162 Ariz. 1, 7, 780 P.2d 1049, 1055 (1989).

1.0523 − Definition of “Human Smuggling Organization” - deleted

Users are advised that in United States v. State of Arizona, 119 F. Supp. 3d 955 (2014), the

court held that federal law preempts Arizona law governing human smuggling.

1.0524 − Definition of “Intoxication”

“Intoxication” means any mental or physical incapacity resulting from use of drugs, toxic

vapors or intoxicating liquors.

CHAPTER 1

1.0528 − Definition of “Omission”

“Omission” means the failure to perform an act as to which a duty of performance is

imposed by law.

1.0529 − Definition of “Peace Officer”

“Peace officer” means any person vested by law with a duty to maintain public order and

make arrests.

1.0530 − Definition of “Person”

“Person” means a human being and, as the context requires, an enterprise, a public or

private corporation, an unincorporated association, a partnership, a firm, a society, a

government, a governmental authority or an individual or entity capable of holding a legal or

beneficial interest in property.

1.0532 − Definition of “Physical Force”

“Physical force” means force used upon or directed toward the body of another person and

includes confinement, but does not include deadly physical force.

1.0533 − Definition of “Physical Injury”

“Physical injury” means the impairment of physical condition.

1.0534 − Definition of “Possess”

“Possess” means knowingly to have physical possession or otherwise to exercise

dominion or control over property.

1.0535 − Definition of “Possession”

“Possession” means a voluntary act if the defendant knowingly exercised dominion or

control over property.

1.0537 − Definition of “Property”

“Property” means anything of value, tangible or intangible.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

1.0538 − Definition of “Public Servant”

A “public servant” is a person who is an officer or employee of any branch of

government, whether elected, appointed, or otherwise employed. [The term includes a peace

officer and any person participating as an advisor, consultant, or otherwise in performing a

governmental function.]

[A public servant includes any person who has been elected, appointed, employed, or

designated to become a public servant as defined here, even though this person does not yet

occupy that position.]

SOURCE: A.R.S. § 13-105(38).

SE NOTE: Use the bracketed language only when evidence shows the public servant was

an advisor or consultant or acted in a similar capacity.

Use this version where the evidence indicates the public servant did not occupy the

office in question at the time of the crime.

OMMENT: By statute, A.R.S. § 13-105(38), a “public servant” does not include a “juror or

witness.” These words are not included in the instruction because of the infrequency of any

definitional problem regarding these two roles.

1.0539 − Definition of “Serious Physical Injury”

“Serious physical injury” includes physical injury that creates a reasonable risk of death,

or that causes serious and permanent disfigurement, serious impairment of health or loss or

protracted impairment of the function of any bodily organ or limb.

SOURCE: A.R.S. §13-105(39) (Statutory language as of January 1, 2009).

COMMENT: A.R.S. §13-3623(F)(5) defines serious physical injury identically, except that it

provides for “serious

permanent disfigurement.”

1.0540 − Definition of “Unlawful”

“Unlawful” means contrary to law or, where the context so requires, not permitted by

law.

1.0541 − Definition of “Vehicle”

“Vehicle” means a device in, upon or by which any person or property is or may be

transported or drawn upon a highway, waterway or airway, excepting devices moved by

human power or used exclusively upon stationary rails or tracks.

CHAPTER 1

1.0542 − Definition of “Voluntary Act”

“Voluntary act” means a bodily movement performed consciously and as a result of

effort and determination.

1.0543 − Definition of “Voluntary Intoxication”

“Voluntary intoxication” means intoxication caused by the knowing use of drugs, toxic

vapors or intoxicating liquors by a person, the tendency of which to cause intoxication the

person knows or ought to know, unless the person introduces them pursuant to medical

advice or under such duress as would afford a defense to an offense.

SOURCE: A.R.S. § 13-105 (statutory language as of August 2, 2012).

CHAPTER 2

2.024 − Transferred Intent

You may find that the defendant acted “intentionally” or with “intent to” as to [name of

the alleged victim] on the charge of [name of offense and, if need for clarity, the count

number] if you find “transferred intent.” Transferred intent is established if the actual result

of the defendant’s action differs from that which the defendant intended or contemplated

only in the respect that:

1. A different person or different property is injured or affected; or

2. The injury or harm intended or contemplated would have been more serious or

extensive than that caused.

SOURCE: A.R.S. § 13-203(B) (statutory language as of October 1, 1978).

SE NOTE: The court shall instruct on the definition of intent.

“Intentionally” is defined in A.R.S. § 13-105.

The actual intended victim can be different or the intended harm may be different in

degree but not both. State v. Johnson, 205 Ariz. 413, 72 P.3d 343 (App. 2003).

There must be an intent to cause a particular result as an element of an offense before

the doctrine of transferred intent applies. State v. Siner, 205 Ariz. 301, 69 P.3d 1022 (App.

2003); State v. Lopez, 234 Ariz. 465, 323 P.3d 748 (App. 2014).

2.025 − Affirmative Defense

The defendant has raised the affirmative defense of [ ] with respect to the

charged offense[s] of [ ]. The burden of proving each element of the offense[s]

beyond a reasonable doubt always remains on the State. However, the burden of proving the

affirmative defense of [ ] is on the defendant. The defendant must prove the

affirmative defense of [ ] by a preponderance of the evidence. If you find that the

defendant has proven the affirmative defense of [ ] by a preponderance of the

evidence you must find the defendant not guilty of the offense[s] of [ ].

SOURCE: A.R.S. § 13-205 (statutory language as of July 21, 1997).

SE NOTE: Justification defenses under Chapter 4 of A.R.S. Title 13 are not affirmative

defenses for crimes occurring on or after April 24, 2006, pursuant to legislative enactment.

However for crimes occurring before this date, they remain affirmative defenses. In such

cases, the court shall instruct on “affirmative defense” so as to inform the jury on the burden

of proof. “Affirmative defense” is defined in A.R.S. § 13-205 (Statutory Instruction 2.025).

An affirmative defense must be shown by a preponderance of the evidence.

“Preponderance of the evidence” is defined in Standard 5b(2).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

The affirmative defense at issue may apply to all charged offenses. The instruction should

specify the particular offenses to which it is applicable. Use language in the brackets as

appropriate to the facts and charges.

OMMENT: In the vast majority of cases proof of the affirmative defense will require the

jurors to acquit the defendant on the applicable charged offense[s]. However, in certain

instances proof of the affirmative defense may only reduce the defendant’s legal culpability.

In those instances, the final sentence of the instruction should be modified accordingly.

A.R.S. § 13-205 provides that “[e]xcept as otherwise provided by law” the defendant must

prove an affirmative defense by a preponderance of the evidence. Currently, the only exception

to the preponderance of evidence standard are the affirmative defenses of entrapment and

insanity, which must be proven by clear and convincing evidence. See A.R.S. §§ 13-206, -502(C).

When the affirmative defenses of entrapment or insanity are raised, this instruction should not

be given. The entrapment (2.026) and insanity (5.02) instructions should be given, which include

the clear and convincing evidence standard.

This instruction is consistent with the affirmative defense instruction (on self defense)

suggested by the court of appeals in State v. Sierra-Cervantes, 201 Ariz. 459, 37 P.3d 432 (App.

2001).

2.03 − Causation Instruction − Intervening Event

Conduct is the cause of a result when both of the following exist:

1. But for the conduct the result in question would not have occurred.

2. The relationship between the conduct and result satisfies any additional causal

requirements imposed by the definition of the offense.

In order to find the defendant guilty of [the crime], you must find that the [death]

[injury] was proximately caused by the acts of the defendant.

The proximate cause of a [death] [injury] is a cause which, in natural and continuous

sequence, produces the [death] [injury], and without which the [death] [injury] would not

have occurred.

Proximate cause does not exist if the chain of natural effects and cause either does not

exist or is broken by a superseding intervening event that was unforeseeable by the

defendant and, with the benefit of hindsight, may be described as abnormal or extraordinary.

The State must prove beyond a reasonable doubt that a superseding intervening event

did not cause the [death] [injury].

SOURCE: A.R.S. § 13-203(A) (statutory language as of October 1, 1978); State v. Bass, 198

Ariz. 571, 12 P.3d 796 (2000); State v. Cocio, 147 Ariz. 277, 279, 709 P.2d 1336, 1338 (1985);

State v. Freeland, 176 Ariz. 544, 548, 863 P.2d 263, 267 (App.1993) (holding that a victim’s

failure to wear a seat belt was not a superseding cause of injury in an aggravated assault case

arising from a DUI-related accident because “[o]ne who drinks and drives should reasonably

foresee that some among the potential victims of drunken driving will not wear seat belts

and that such victims, among others, might be seriously injured in an alcohol-induced

collision”).

CHAPTER 2

2.03.02 − Causation Instruction − Pre-existing Physical Condition

When a person causes injury to another, the consequences are not excused, nor is the

criminal responsibility for the resulting [death] [injury] lessened, by the pre-existing physical

condition of the person [killed] [injured].

SOURCE: State v. Decello, 111 Ariz. 46, 50-51, 523 P.2d 74, 78-79 (1974).

Use Note: This instruction should be given with general causation instruction. See Statutory

Criminal Instruction 2.03.

2.03.03 − Causation (Multiple Actors)

The unlawful acts of two or more people may combine to cause the [death] [injury] of

another. If the unlawful act of the other person was the sole proximate cause of [death]

[injury], the defendant’s conduct was not a proximate cause of the [death] [injury]. If you

find that the defendant’s conduct was not a proximate cause of the [death] [injury], you must

find the defendant not guilty.

SOURCE: State v. Cocio, 147 Ariz. 277, 278-79, 709 P.2d 1336, 1339-40 (1985); see also State v.

Bass, 198 Ariz. 571, 576, 12 P.3d 796, 801 (2000); State v. Sucharew, 205 Ariz. 16, 25-26, 66

P.3d 59, 68-69 (App. 2003).

SE NOTE: This instruction may be appropriate to give if there is a dispute regarding the

unlawful acts of two or more people where there is no accomplice liability. It should be

given along with the general causation instruction that requires the state to prove causation.

See Statutory Criminal Instruction 2.03.

2.04.01(A) − Causation Ignorance of Law

Ignorance or a mistaken belief as to a matter of fact does not relieve a person of criminal

liability unless:

1. The ignorance or a mistaken belief as to a matter of fact negates the culpable mental

state required for a commission of the offense; or

2. The ignorance or a mistaken belief as to a matter of fact establishes a defense of

justification.

SOURCE: A.R.S. § 13-204(A) (statutory language as of October 1, 1978).

2.04.01(B) − Causation Ignorance of Fact

Ignorance or mistake as to a matter of law does not relieve a person of criminal

responsibility.

SOURCE: A.R.S. § 13-204(B) (statutory language as of October 1, 1978).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

2.06 [Replaces Standard 13] − Entrapment

The defendant has raised the affirmative defense of entrapment with respect to the

charged offenses[s] of [ ]. The defendant must prove the following by clear and

convincing evidence:

1. The idea of committing the offense[s] started with law enforcement officers or their

agents rather than the defendant; and

2. The law enforcement officers or their agents urged and induced the defendant to

commit the offense[s], and

3. The defendant was not predisposed to commit the type of offenses[s] charged

before the law enforcement officers or their agents urged and induced the defendant

to commit the offenses[s].

The defendant does not establish entrapment if [he] [she] was predisposed to commit

the offenses[s]. It is not entrapment for law enforcement officers or their agents to use a

ruse or to conceal their identity.

The conduct of law enforcement officers and their agents may be considered in

determining if the defendant has proven entrapment.

If you find that the defendant has proven entrapment by clear and convincing evidence

you must find the defendant not guilty of the offense[s].

SOURCE: A.R.S. § 13-206 (statutory language as of July 21, 1997).

SE NOTE: Use language in brackets as applicable to the charges.

OMMENT: In 1997, the legislature codified the entrapment defense in A.R.S. § 13-206. See

State v. Preston, 197 Ariz. 461, 463-64, 4 P.3d 1004, 1006-07 (App. 2000). Consistent with

prior case law, the statute requires that the defendant admit the substantial elements of the

offense[s] as a condition of raising the entrapment defense. 197 Ariz. at 464, 4 P.3d at 1007.

However, the statute now requires the defendant to prove entrapment by clear and

convincing evidence. Id. Consistent with prior case law, admission of the substantial

elements of the offense must be accomplished either by the defendant’s testimony, by a

written stipulation admitting to the elements entered into evidence, or a reliable out-of-court

admission, such as would be made in a confession to law enforcement after Miranda

warnings had been read. State v. Gray, 239 Ariz. 475, 372 P.3d 999 (2016).

Subsection D of the statute required that the trial court instruct the jurors that the

defendant had admitted the elements of the offense[s] and “that the only issue for their

consideration is whether the [defendant] has proven the affirmative defense of entrapment

by clear and convincing evidence.” A.R.S. § 13-206(D). However, in Preston, the Arizona

Court of Appeals declared subsection D of the statute unconstitutional because it effectively

denied a criminal defendant the presumption of innocence and the right to a jury

determination of guilt. 197 Ariz. at 466-68, 4 P.3d at 1009-11. The court held that subsection

D was severable from the remainder of the statute. Id. at 468, 4 P.3d at 1011. The court

upheld placing upon the defendant the burden of proving the affirmative defense of

entrapment by “clear and convincing evidence.” Id. at 464-65, 4 P.3d at 1007-08.

CHAPTER 3

3.01 − Accomplice

“Accomplice” means a person, who, with the intent to promote or facilitate the

commission of the offense, does any of the following:

1. solicits or commands another person to commit the offense; or

2. aids, counsels, agrees to aid, or attempts to aid another person in planning or

committing the offense; or

3. provides means or opportunity to another person to commit the offense.

A defendant is criminally accountable for the conduct of another if the defendant is an

accomplice of such other person in the commission of the offense, including any offense

that is a natural and probable or reasonably foreseeable consequence of the offense for

which the person was an accomplice.

SOURCE: A.R.S. §§ 13-301 and -303(A)(3) (statutory language as of September 26, 2008).

SE NOTE: For offenses that occurred before September 26, 2008, the following instruction

should be used:

“Accomplice” means a person, who, with the intent to promote or facilitate the

commission of the offense, does any of the following:

1. solicits or commands another person to commit the offense; or

2. aids, counsels, agrees to aid, or attempts to aid another person in planning or

committing the offense; or

3. provides means or opportunity to another person to commit the offense.

A defendant is criminally accountable for the conduct of another if the defendant is an

accomplice of such other person in the commission of the offense. This criminal liability

extends only to offenses that the defendant intended to aid, solicit, facilitate or command.

In State v. Phillips, 202 Ariz. 427, 436, 46 P.3d 1048, 1057 (2002), the court reversed a

premeditated murder conviction, affirmed a felony murder conviction and held that to be an

accomplice to premeditated murder, the defendant must intend to aid or facilitate another in

committing the murder. The 2008 legislative amendment supersedes Phillips.

3.05 − Enterprise Liability

An enterprise commits an offense if:

[the conduct constituting the offense consist of a failure to discharge a specific duty

imposed by law.]

[the conduct undertaken in behalf of the enterprise and constituting the offense is

engaged in, authorized, solicited, commanded or recklessly tolerated by the directors of the

enterprise in any manner or by a high managerial agent acting within the scope of

employment.]

REVISED ARIZONA JURY INSTRUCTIONS – CRIMINAL 5TH

[the conduct constituting the offense is engaged in by an agent of the enterprise while

acting within the scope of employment and in behalf of the enterprise, and the offense is a

misdemeanor or petty offense.]

[the conduct constituting the offense is engaged in by an agent of the enterprise while

acting within the scope of employment and in behalf of the enterprise, and the offense is

defined by a statute which imposes criminal liability on an enterprise.]

[“Agent” means any officer, director, employee of an enterprise or any other person who

is authorized to act in behalf of the enterprise.]

[“High managerial agent” means an officer of an enterprise or any other agent in a

position of comparable authority with respect to the formulation of enterprise policy.]

SOURCE: A.R.S. § 13-306 (statutory language as of October 1, 1978); State v. Far West Water

& Sewer, Inc., 224 Ariz. 173, 228 P.3d 909 (App. 2010).

3.06 − Personal Liability for Conduct of an Enterprise

A person is criminally liable for conduct constituting an offense which such person

performs or causes to be performed in the name of or in behalf of an enterprise to the same

extent as if such conduct were performed in such person’s own name or behalf.

SOURCE: A.R.S. § 13-306 (statutory language as of October 1, 1978).

SE NOTE: This instruction may not apply in cases where the person’s conduct was a

failure to act. See State v. Angelo, 166 Ariz. 24, 800 P.2d 11 (App. 1990).

CHAPTER 4

Prefatory Use Note:

This user note applies to all of the justification instructions.

Justification defenses under Chapter 4 of A.R.S. Title 13 are not longer affirmative

defenses. Justification defenses contained in Chapter 4 of Title 13 do not apply to criminal

prosecutions for criminal offenses under Title 28. See State v. Fell, 203 Ariz. 186, 188-89, 52

P.3d 218, 220-21, ¶¶8, 9 (App. 2002) (holding that Title 13 justification defenses do not

apply to Title 28 violations).

4.02 − Justification Defense in Execution of Public Duty

A defendant is justified in using or threatening physical force or deadly physical force if:

1. It was required or authorized by law; or

2. A reasonable person in a similar situation would believe that it was required or

authorized [by the judgment or direction of a competent court or tribunal, even

though the court or tribunal may have lacked jurisdiction] [in the lawful execution of

legal process, even though there may have been a defect in the legal process]; or

3. A reasonable person in a similar situation would believe that it was required or

authorized to assist a peace officer in the performance of such officer’s duties, even

though the officer may have exceeded the officer’s legal authority.

A defendant may use deadly physical force in execution of public duty only to protect

against another’s use or apparent attempted or threatened use of deadly physical force.

Defense in execution of public duty justifies the use or threat of physical force or deadly

physical force only while the apparent danger continues, and it ends when the apparent

danger ends. The force used may not be greater than reasonably necessary to defend against

the apparent danger.

The use of physical force or deadly physical force is justified if a reasonable person in

the situation would have reasonably believed that immediate physical danger appeared to be

present. Actual danger is not necessary to justify the use of physical force or deadly physical

force in defense of execution of public duty.

You must measure the defendant’s belief against what a reasonable person in the

situation would have believed.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-402 (statutory language as of October 1, 1978) and 13-205 (statutory

language as of April 24, 2006); State v. Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9 (1995).

SE NOTE: Use the language in brackets as appropriate to the facts.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

“Physical Force” and “Deadly Physical Force” are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

OMMENT: The Arizona Supreme Court has required that an instruction under A.R.S.

§§ 13-404 and -405 must include a reference to the reasonable person standard. State v.

Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995). Because A.R.S. § 13-402 requires a

reasonable person standard in paragraphs 2 and 3 above, the direction given in Grannis will

likely apply in this Instruction.

4.03 − Justification: Use of Physical Force

A defendant is justified in using physical force as follows:

[A parent/guardian/teacher/person entrusted with the care or supervision of a minor or

incompetent person may use reasonable and appropriate physical force upon such minor or

incompetent person when and to the extent reasonably necessary and appropriate to

maintain discipline.]

[A superintendent/entrusted official of a jail/prison/correctional institution may use

physical force for the preservation of peace, to maintain order or discipline, or to prevent the

commission of any felony or misdemeanor.]

[A person responsible for the maintenance of order in a place where others are

assembled/on a common carrier of passengers may use physical force if and to the extent

that a reasonable person in a similar situation would believe it necessary to maintain order.

Such person may use deadly physical force only if reasonably necessary to prevent death or

serious physical injury. This defense is also available to a person acting under the direction of

the responsible person. A defendant may use deadly physical force only to protect against

another’s use or apparent, attempted or threatened use of deadly physical force. You must

measure the defendant’s belief against what a reasonable person in the situation would have

believed.]

[A person acting under a reasonable belief that another person is about to commit

suicide or to inflict serious physical injury upon himself/herself may use physical force upon

such other person to the extent reasonably necessary to thwart the result.]

[A duly licensed physician/registered nurse/person acting under the direction of a duly

licensed physician/person acting under the direction of a registered nurse/person who

renders emergency care at the scene of an emergency occurrence may use reasonable

physical force for the purpose of administering a recognized and lawful form of treatment

that is reasonably adapted to promoting the physical or mental health of the patient only if

the following condition exists/conditions exist:

1. The treatment is administered with the consent of the patient/if the patient is a

minor or an incompetent person, with the consent of the parent, guardian or other

person entrusted with the care and supervision of the minor or incompetent person;

2. The treatment is administered in an emergency when a reasonable person in a similar

situation administering such treatment believes that no one competent to consent

can be consulted and that a reasonable person in a similar situation as a patient,

wishing to safeguard his/her welfare, would consent.]

CHAPTER 4

The use or threat of [physical force] [deadly physical force] is justified only while the

apparent danger continues, and it ends when the apparent danger ends. The force used may

not be greater than reasonably necessary to defend against the apparent danger.

The use of [physical force] [deadly physical force] is justified if a reasonable person in

the situation would have reasonably believed that immediate physical danger appeared to be

present. Actual danger is not necessary to justify the use of physical force or deadly physical

force.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-403 (statutory language as of October 1, 1978) and 13-205 (statutory

language as of April 24, 2006).

SE NOTE: Use the language in brackets and slashes as appropriate to the facts.

“Physical Force” and “Deadly Physical Force” are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

In regard to the bracketed portion pertaining to jail/prison officials, the following

instruction should be given if the facts are appropriate: “Actual danger is not necessary to

justify the use of [physical force for the preservation of peace, to maintain order or

discipline, or to prevent the commission of any felony or misdemeanor] [deadly physical

force to prevent death or serious physical injury]. Mere words may be sufficient to justify the

use of physical force.” See State v. Bojorquez, 138 Ariz. 495, 498-99, 675 P.2d 1314, 1317-18

(1984) (holding that these instructions could be appropriate if the facts warranted them).

4.04 − Justification for Self-Defense

A defendant is justified in using or threatening physical force in self-defense if the

following two conditions existed:

1. A reasonable person in the situation would have believed that physical force was

immediately necessary to protect against another’s use or apparent attempted or

threatened use of unlawful physical force; and

2. The defendant used or threatened no more physical force than would have

appeared necessary to a reasonable person in the situation.

A defendant may use deadly physical force in self-defense only to protect against

another’s use or apparent attempted or threatened use of deadly physical force.

Self-defense justifies the use or threat of physical force or deadly physical force only

while the apparent danger continues, and it ends when the apparent danger ends. The force

used may not be greater than reasonably necessary to defend against the apparent danger.

The use of physical force is justified if a reasonable person in the situation would have

reasonably believed that immediate physical danger appeared to be present. Actual danger is

not necessary to justify the use of physical force in self-defense.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

You must decide whether a reasonable person in a similar situation would believe that:

physical force was immediately necessary to protect against another’s [use] [attempted use]

[threatened use] [apparent attempted use] [apparent threatened use] of unlawful physical

force; or

You must measure the defendant’s belief against what a reasonable person in the

situation would have believed.

[The threat or use of physical force is not justified:

1. In response to verbal provocation alone;

2. To resist an arrest that the defendant knew or should have known was being made

by a peace officer or by a person acting in a peace officer’s presence and at the peace

officer’s direction, whether the arrest was lawful or unlawful, unless the physical

force used by the peace officer exceeded that allowed by law; or

3. If the defendant provoked the other’s use of unlawful physical force, unless:

a. The defendant withdrew from the encounter or clearly communicated to the

other person the defendant’s intent to withdraw, reasonably believing that

the defendant could not withdraw from the encounter; and

b. The other person nevertheless continued or attempted to use unlawful

physical force against the defendant.]

The State has the burden of proving beyond a reasonable doubt that the defendant did not

act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge.

[The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. § 13-404 (statutory language as of October 1, 1978) and § 13-405 (statutory

language as of July 29, 2010) and § 13-205 (statutory language as of April 24, 2006); State v.

Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995); State v. Dumaine, 162 Ariz. 392, 404, 783

P.2d 1184, 1196 (1989); State v. Noriega, 142 Ariz. 474, 482, 690 P.2d 775, 783 (1984), overruled

on other grounds, State v. Burge, 167 Ariz. 25, 28 n.7, 804 P.2d 754, 757 n.7 (1990) (overruling

only on Noriega’s holding that a grand jury’s allegation of dangerousness in an indictment is

insufficient to invoke 13-604’s sentence enhancement allegations); State v. King, 225 Ariz. 87,

235 P.3d 240, ¶ 12 (2010) (overruling Grannis, Dumaine, and Noriega to the extent they

required that a defendant act in self defense based solely on a fear of imminent harm).

SE NOTE: Use the language in brackets as appropriate to the facts.

If the charged offense involves the threat or use of deadly physical force, use Statutory

Criminal Instruction 4.05.

If the defense asserts that the arrest exceeded that allowed by law, use Statutory Criminal

Instructions 38.81, 38.87 and/or 38.88, as applicable.

If there have been past acts of domestic violence as defined in A.R.S. § 13-3601,

subsection A, against the defendant by the victim, the state of mind of a reasonable person

shall be determined from the perspective of a reasonable person who has been a victim of

those past acts of domestic violence. A.R.S. § 13-415.

CHAPTER 4

When defendant’s residential structure or occupied vehicle is involved, the presumption

set forth in A.R.S. § 13-419 may apply.

Physical Force and Deadly Physical Force are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

Unlawful is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0535).

If the defense asserts that another person committed the charged act, the defendant is

still entitled to justification instructions so long as they are supported by the slightest

evidence. State v. Carson, 243 Ariz. 463, 410 P.3d 1230 (2018).

OMMENT: This instruction modifies the 1989 RAJI version of Statutory Criminal

Instruction 4.04. An instruction that was almost identical to former 4.04 was held reversible

error in Grannis: A defendant may only use deadly physical force in self-defense to protect

himself from another’s use or attempted use of deadly physical force. 183 Ariz. at 61, 900

P.2d at 10. Furthermore, [u]nder A.R.S. §§ 13-404 and -405, apparent deadly force can be met

with deadly force, so long as defendants belief as to apparent deadly force is a reasonable

one. An instruction on self-defense is required when a defendant acts under a reasonable

belief; actual danger is not required. (Emphasis in the original.)

In State v. King, 225 Ariz. 87, 235 P.3d 240, ¶ 12 (2010), the Arizona Supreme Court

stated that “the sole question is whether a reasonable person in the defendant’s

circumstances would have believed that physical force was ‘immediately necessary to protect

himself.’” The court rejected any instruction that suggests or requires that a defendant’s fear

of imminent harm be the sole motivation for employing self defense. Id. The court

disapproved language in previous supreme court cases that required the defendant to act

solely because of a belief or fear of imminent harm, noting that such a requirement ignored

the fact that the statute has been based on an objective standard since 1977. Id. at ¶ 9

4.04-1 − Non-Justification for Threat or Use of Physical Force

A defendant is not justified in using or threatening physical force against another:

[in response to verbal provocation alone.]

[to resist an arrest that the defendant knew or should have known was being made by a

peace officer or by a person acting in a peace officer’s presence and at the peace officer’s

direction, whether the arrest is lawful or unlawful, unless the physical force used by the

peace officer exceeds that allowed by law.]

[if the defendant provoked the other person’s use or attempted use of unlawful physical

force, unless:

1. the defendant withdrew from the encounter or clearly communicated to the

other person the intent to withdraw with the reasonable belief that the

defendant could not safely withdraw; and

2. the other person continued or attempted to use unlawful physical force

against the defendant.]

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. § 13-404(B) (statutory language as of October 1, 1978).

SE NOTE: Use the language in brackets as appropriate to the facts.

When defendant’s residential structure or occupied vehicle is involved, the presumption

set forth in A.R.S. § 13-419 may apply.

The court should instruct on the culpable mental state.

“Knowingly” is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0510(b)).

“Intentionally” is defined in A.R.S. § 13-105 (Statutory Definition Instruction

1.0510(a)(1)).

“Physical Force” and “Unlawful” are defined in A.R.S. § 13-105 (Statutory Definition

Instructions 1.0528) and 1.0541).

In cases asserting a defense based upon excessive force by police, the court may also

choose to instruct on “arrest” and “method of arrest by officer” as defined in A.R.S. §§ 13-

3881, -3887 and -3888 (Statutory Definition Instructions 38.81, 38.87 and 38.88).

OMMENT: The privilege of self-defense is not available to one who is at fault in provoking

an encounter or difficulty that results in a crime. State v. Lujan, 136 Ariz. 102, 104-05, 664

P.2d 646, 648-49 (1983) (stating that “an aggressor may not claim self-defense unless he

withdraws from the combat in such a manner as will indicate his intention in good faith to

refrain from further aggressive conduct.”)

The public policy prohibiting force against an unlawful arrest accomplished without

excessive force is to avoid violence against police officers by relegating the interest of the

individual to the interest of the public, and by allowing the individual to seek recourse

through civil damages in a subsequent lawsuit. See State v. Lockner, 20 Ariz. App. 367, 371,

513 P.2d 374, 379 (1973).

A suspect has no right to use physical force against the lawful use of a police dog to

apprehend the suspect. State v. Doss, 192 Ariz. 408, 412-13, 966 P.2d 1012, 1016-17 (App.

1998).

4.05 − Justification for Self-Defense Physical Force

A defendant is justified in using or threatening deadly physical force in self-defense if the

following two conditions existed:

1. A reasonable person in the situation would have believed that deadly physical fo

rce

was immediately n

ecessary to protect against another’s use or apparent attempted or

threatened use of unlawful deadly physical force;

and

2. The defendan

t used or threatened no more deadly physical force than would h

ave

peared necessary to a reasonable person in the situat

ion.

A defendan

t may use deadly physical force in self-defense only to protect against

another’s use or apparent attempted or threatened use of deadly physical force.

CHAPTER 4

Self-defense justifies the use or threat of deadly physical force only while the apparent

danger continues, and it ends when the apparent danger ends. The force used may not be

greater than reasonably necessary to defend against the apparent danger.

The use of deadly physical force is justified if a reasonable person in the situation would

have reasonably believed that immediate deadly physical danger appeared to be present.

Actual danger is not necessary to justify the use of deadly physical force in self-defense.

You must decide whether a reasonable person in a similar situation would believe that:

Deadly physical force was immediately necessary to protect against another’s [use]

[attempted use] [threatened use] [apparent attempted use] [apparent threatened use] of

unlawful deadly physical force.

You must measure the defendant’s belief against what a reasonable person in the

situation would have believed.

A defendant has no duty to retreat before threatening or using deadly physical force in

self-defense if the defendant:

1. Had a legal right to be in the place where the use or threatened deadly physical force

in self-defense occurred; and

2. Was not engaged in an unlawful act at the time when the use or threatened deadly

physical force in self-defense occurred.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. § 13-404 (statutory language as of October 1, 1978) and § 13-405 (statutory

language as of July 29, 2010) and § 13-205 (statutory language as of April 24, 2006); State v.

Grannis,

183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995); State v. Dumaine,

162 Ariz. 392, 404,

783 P.2d 1184, 1196 (1989); State v. Noriega,

142 Ariz. 474, 482, 690 P.2d 775, 783 (1984),

overruled on other grounds, State v. Burge,

167 Ariz. 25, 28 n.7, 804 P.2d 754, 757 n.7 (1990)

(overruling only on Noriega’s

holding that a grand jury’s allegation of dangerousness in an

indictment is insufficient to invoke § 13-604’s sentence enhancement allegations); State v.

King, 225 Ariz. 87, 235 P.3d 240, ¶ 12 (2010) (overruling Grannis, Dumaine, and Noriega to the

extent they required that a defendant act in self defense based solely on a fear of imminent

harm).

Use Note: Use the language in brackets as appropriate to the facts.

If there have been past acts of domestic violence as defined in A.R.S. § 13-3601,

subsection A, against the defendant by the victim, the state of mind of a reasonable person

shall be determined from the perspective of a reasonable person who has been a victim of

those past acts of domestic violence. A.R.S. § 13-415.

Physical Force and Deadly Physical Force are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

Unlawful is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0535).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

If the defense asserts that another person committed the charged act, the defendant is

still entitled to justification instructions so long as they are supported by the slightest

evidence. State v. Carson, 243 Ariz. 463, 410 P.3d 1230 (2018).

COMMENT: This instruction modifies the 1989 RAJI version of Statutory Criminal

Instruction 4.04. An instruction that was almost identical to former § 4.04 was held

reversible error in Grannis:

A defendant may only use deadly physical force in self-defense to

protect himself from another’s use or attempted use of deadly physical force. 183 Ariz. at 61,

900 P.2d at 10. Furthermore, [u]nder A.R.S. §§ 13-404 and -405, apparent

deadly force can be

met with deadly force, so long as defendants belief as to apparent deadly force is a

reasonable one. An instruction on self-defense is required when a defendant acts under a

reasonable belief; actual danger is not required. (Emphasis in the original.)

In State v. King, 225 Ariz. 87, 235 P.3d 240, ¶ 12 (2010), the Arizona Supreme Court

stated that “the sole question is whether a reasonable person in the defendant’s

circumstances would have believed that physical force was ‘immediately necessary to protect

himself.’” The court rejected any instruction that suggests or requires that a defendant’s fear

of imminent harm be the sole motivation for employing self defense. Id. The court

disapproved language in previous supreme court cases that required the defendant to act

solely because of a belief or fear of imminent harm, noting that such a requirement ignored

the fact that the statute has been based on an objective standard since 1977. Id. at ¶ 9.

4.06 − Justification for Defense of a Third Person

A defendant is justified in using or threatening physical force in defense of a third

person if the following two conditions existed:

1. A reasonable person in the situation would have believed that physical force was

necessary to protect against another’s [use] [attempted use] [apparent attempted use]

[threatened use] of unlawful physical force against a third person; and

2. The defendant used or threatened no more physical force than would have appeared

necessary to a reasonable person in the situation.

3. A defendant may use deadly physical force in defense of a third person only to

protect against another’s [use] [attempted use] [apparent attempted use] [threatened

use] of deadly physical force.

Defense of a third person justifies the use or threat of physical force or deadly physical

force only while the danger continues, and it ends when the danger ends. The force used

may not be greater than reasonably necessary to defend against the danger.

Actual danger is not necessary to justify the use of physical force or deadly physical force

in defense of a third person.

The use of physical force or deadly physical force is justified if a reasonable person in

the situation would have reasonably believed that immediate physical danger appeared to be

present.

You must decide whether a reasonable person in a similar situation would believe that:

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1. Physical force was necessary to protect against another’s [use] [attempted use]

[apparent attempted use] [threatened use] of unlawful physical force against a third

person;

2. Deadly physical force was necessary to protect against another’s [use] [attempted

use] [apparent attempted use] [threatened use] of unlawful physical force against a

third person.

You must measure the defendant’s belief against what a reasonable person in the

situation would have believed.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. § 13-404 (statutory language as of October 1, 1978); A.R.S. § 13-405

(statutory language as of July 29, 2010); A.R.S. § 13-406 (statutory language as of July 20,

2011) and 13-205 (statutory language as of April 24, 2006); State v. Grannis, 183 Ariz. 52, 60-

61, 900 P.2d 1, 9-10 (1995); State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196 (1989);

State v. Noriega, 142 Ariz. 474, 482, 690 P .2d 775, 783 (1984), overruled on other grounds, State v.

Burge, 167 Ariz. 25, 28 n.7, 804 P.2d 754, 757 n.7 (1990) (overruling only on Noriega’s holding

that a grand jury’s allegation of dangerousness in an indictment is insufficient to invoke § 13-

604’s sentence enhancement allegations).

SE NOTE: Use the language in brackets as appropriate to the facts.

If there have been past acts of domestic violence as defined in A.R.S. § 13-3601,

subsection A, against the defendant by the victim, the state of mind of a reasonable person

shall be determined from the perspective of a reasonable person who has been a victim of

those past acts of domestic violence. A.R.S. § 13-415.

When defendant’s residential structure or occupied vehicle is involved, the presumption

set forth in A.R.S. § 13-419 may apply.

“Physical Force” and “Deadly Physical Force” are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

If the defense asserts that another person committed the charged act, the defendant is

still entitled to justification instructions so long as they are supported by the slightest

evidence. State v. Carson, 243 Ariz. 463, 410 P.3d 1230 (2018).

OMMENT: This instruction modifies the 1989 RAJI version of Statutory Criminal

Instruction 4.06 in light of modifications to Statutory Criminal Instruction 4.04. An

instruction that was almost identical to former 4.04 was held reversible error in Grannis: “A

defendant may only use deadly physical force in self-defense to protect himself from

another’s use or attempted use of deadly physical force.” 183 Ariz. at 61, 900 P.2d at 10.

Furthermore, “[u]nder A.R.S. §§ 13-404 and -405, apparent deadly force can be met with

deadly force, so long as defendant’s belief as to apparent deadly force is a reasonable one. An

instruction on self-defense is required when a defendant acts under a reasonable belief;

actual danger is not required.” (Emphasis in the original).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

4.07 − Justification in Defense of Premises

A defendant in lawful possession or control of the premises is justified [in threatening to

use deadly physical force] [in using physical force] [in attempting to use physical force] [in

threatening to use physical force] in defense of premises if a reasonable person in the

situation would have believed it immediately necessary to prevent or terminate the

commission or attempted commission of a criminal trespass by another person in or upon

the premises. The force used may not be greater than reasonably necessary to prevent the

[attempted] criminal trespass.

An actual criminal trespass is not necessary to justify the use of physical force in defense

of premises. A defendant is justified in defending premises if the defendant reasonably

believed that a criminal trespass was being [committed] [attempted]. You must measure the

defendant’s belief against what a reasonable person in the situation would have believed.

The defense ends when the [attempted] criminal trespass ends.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-407 (statutory language as of October 1, 1978) and 13-205 (statutory

language as of April 24, 2006).

SE NOTE: Use the language in brackets as appropriate to the facts.

A.R.S. § 13-407(A) provides that a person or the person’s agent in lawful possession or

control of the premises may be entitled to claim this defense.

When defendant’s residential structure or occupied vehicle is involved, the presumption

set forth in A.R.S. § 13-419 may apply.

“Physical Force” and “Deadly Physical Force” are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

“Possess” is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0530).

“Possession” is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0535).

“Premises” is defined in A.R.S. § 13-407(C).

“Criminal Trespass” is defined in A.R.S. § 13-1501 et seq.

OMMENT: A person may use deadly physical force in the defense of premises only if it is

used in the defense of the person or third persons as described in A.R.S. §§ 13-405 and

-406. See A.R.S. § 13-407(B).

The term “la

wful” possession or control is not defined by statute. However, it appears

from case law that it has the same meaning as “possession” as defined in A.R.S. § 13-105.

See, e.g., State v. Malory, 113 Ariz. 480, 483, 557 P.2d 165, 168 (1976) (noting that lawful

possession or control is shown if the accused had the property under his control in the sense

that it was under his direction or management).

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While a person’s entry on premises may be initially lawful based on express or implied

invitation, the person in lawful possession or control always has the right to withdraw that

invitation, making such entry a trespass, at which time reasonable force may be used to eject

the trespasser. See Ramirez v. Chavez, 71 Ariz. 239, 226 P.2d 143 (1951) (bar owner had the

right to remove an unruly bar customer).

4.08 − Justification in Defense of Property

A defendant is justified in using physical force against another in defense of property if a

reasonable person in the situation would believe it necessary to prevent what a reasonable

person in the situation would believe was [an attempt] [a commission] [a threat] by the other

person of [theft] [criminal damage] involving tangible movable property under the

defendant’s possession or control.

Defense of property justifies the use physical force only while the danger continues, and

it ends when the danger ends. The force used may not be greater than reasonably necessary

to defend against the danger.

Actual danger is not necessary to justify the use of physical force or deadly physical force

in defense of property.

The use of physical force is justified if a reasonable person in the situation would have

reasonably believed that immediate physical danger appeared to be present.

You must measure the defendant’s belief against what a reasonable person in the

situation would have believed.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-408 (statutory language as of October 1, 1978) and 13-205 (statutory

language as of April 24, 2006); State v. Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995).

SE NOTE: Use the language in brackets as appropriate to the facts.

“Physical Force” and “Deadly Physical Force” are defined in A.R.S. § 13-105 (Statutory

Definition Instructions 1.0528 and 1.059).

“Theft” is defined in A.R.S. § 13-1801 et seq.

“Criminal damage” is defined in A.R.S. § 13-1601 et seq.

A person may use deadly physical force in the defense of property only if it is used in the

defense of the person, third persons or for crime prevention as described in A.R.S. §§ 13-

405, -406 and -411. See A.R.S. § 13-408.

When defendant’s residential structure or occupied vehicle is involved, the presumption

set forth in A.R.S. § 13-419 may apply.

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

4.09 − Justification for Use of Physical Force in Law Enforcement

A defendant was justified in using or threatening physical force in law enforcement if:

1. The defendant was [making an arrest or detention] [assisting in making an arrest or

detention] [preventing the escape after arrest or detention] [assisting in preventing

the escape after arrest or detention] of another person; and

2. A reasonable person in the situation would have believed that using or threatening

physical force was immediately necessary [to effect the arrest or detention] [to

prevent the escape]; and

3. [The defendant made known to the other person the purpose of the arrest or

detention] [The defendant believed that the other person knew the purpose of the

arrest or detention] [The defendant could not have reasonably made known to the

person to be arrested or detained, the purpose of the arrest or detention]; and

4. A reasonable person would have believed that the arrest or detention was lawful.

The use of physical force in law enforcement is justified only while the danger continues,

and it ends when the danger ends. The force used may not be greater than reasonably

necessary to defend against the danger.

Actual danger is not necessary to justify the use of physical force in law enforcement.

The use of physical force is justified if a reasonable person in the situation would have

reasonably believed that there was immediate physical danger. You must measure the

defendant’s belief against what a reasonable person in the situation would have believed.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-409 (statutory language as of October 1, 1978) and 13-205 (statutory

language as of April 24, 2006; State v. Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995).

SE NOTE: Use the language in brackets as appropriate to the facts.

“Physical Force” is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0528).

4.10(1) − Justification for Threatened Deadly Physical Force in Law Enforcement

A defendant was justified in threatening deadly physical force against another if:

1. The defendant was [making an arrest or detention] [assisting in making an arrest or

detention] [preventing the escape after arrest or detention] [assisting in preventing

the escape after arrest or detention] of another person; and

2. A reasonable person would have believed that threatening deadly physical force was

immediately necessary [to effect the arrest or detention] [to prevent the escape]; and

3. [The defendant made known to the other person the purpose of the arrest or

detention] [The defendant believed that the other person knew the purpose of the

CHAPTER 4

arrest or detention] [The defendant could not have reasonably made known to the

person to be arrested or detained, the purpose of the arrest or detention]; and

4. A reasonable person effecting the arrest or detention would have believed that the

arrest or detention was lawful; and

5. A reasonable person effecting the arrest or detention would have believed that the

person [being arrested] [escaping] was:

[Actually resisting the discharge of a legal duty with deadly physical force.]

[Actually resisting the discharge of a legal duty with the apparent capacity to use

deadly physical force.]

[A felon who had escaped from lawful confinement.]

[A felon who was fleeing from justice.]

[A felon who was resisting arrest with physical force.]

A person is justified in threatening deadly physical force only while the [flight] [escape]

[resisting] continues, and the justification ends when the [flight] [escape] [resisting] ends.

You must measure the defendant’s belief against what a reasonable person in the

situation would have believed.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-410(A) (statutory language as of 1989) and 13-205 (statutory language

as of April 24, 2006); State v. Olsen, 157 Ariz. 603, 610, 760 P.2d 603, 610 (App. 1988); State v.

Barr, 115 Ariz. 346, 349-50, 565 P.2d 526, 529-30 (App. 1977).

SE NOTE: Use the language in brackets as appropriate to the facts.

If the defendant is a peace officer, Statutory Criminal Instruction 4.10(4) should be used

instead of this instruction when the peace officer threatened deadly physical force in

response to the potential use of physical or deadly physical force against the peace officer.

See A.R.S. § 13-410(D).

[“Physical Force” is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0528).

“Felon” is not a defined statutory term. “Felon” for purposes of this statute should be

defined as someone who has committed a felony or is suspected of having committed a

felony. See Tennessee v. Garner, 471 U.S. 1, 11-15(1985); Olsen, supra.

“Felony” is defined in A.R.S. § 13-105 (Statutory Definition Instruction 1.0516).

OMMENT: The underlying factual prerequisites are identical to Statutory Criminal

Instruction 4.09, because A.R.S. § 13-410 predicates the threatened use of deadly force on

the prerequisites countenanced under A.R.S. § 13-409.

The justification for threatening deadly physical force against a fleeing felon ends when

the fleeing felon has stopped fleeing. State v. Bojorquez, 138 Ariz. 495, 498, 675 P.2d 1314,

1317 (1984); State v. Gendron, 166 Ariz. 562, 566, 804 P.2d 95, 99 (App. 1990), vacated in part

on other grounds, State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

4.10(2) − Justification for Using Deadly Physical Force in Law Enforcement by a

Non-Peace Officer

A defendant who was not a peace officer was justified in using deadly physical force

against another if:

1. The defendant was [making an arrest or detention] [assisting in making an arrest or

detention] [preventing the escape after arrest or detention] [assisting in preventing

the escape after arrest or detention] of another person; and

2. A reasonable person would have believed that the other person was actually resisting

the discharge of a legal duty with [physical force] [the apparent capacity to use deadly

physical force]; and

3. [The defendant made known to the other person the purpose of the arrest or

detention] [The defendant believed that the other person knew the purpose of the

arrest or detention] [The defendant could not have reasonably made known to the

person to be arrested or detained, the purpose of the arrest or detention]; and

4. A reasonable person would have believed that the arrest or detention was lawful.

The use of deadly physical force is justified only while the danger continues, and the

justification ends when the danger ends. The force used may not be greater than reasonably

necessary to defend against the danger.

Actual danger is not necessary to justify the use of physical force or deadly physical force

in law enforcement. The use of deadly physical force is justified if a reasonable person in the

situation would have reasonably believed that immediate physical danger was present. You

must measure the defendant’s belief against what a reasonable person in the situation would

have believed.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-410(B) (statutory language as of 1989) and 13-205 (statutory language

as of April 24, 2006); Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); State v. Grannis, 183 Ariz.

52, 60-61, 900 P.2d 1, 9-10 (1995); State v. Olsen, 157 Ariz. 603, 610, 760 P.2d 603, 610 (App.

1988); State v. Barr, 115 Ariz. 346, 349-50, 565 P.2d 526, 529-30 (App. 1977).

SE NOTE: This instruction is available to defendants who raise a factual issue as to

resisting excessive police force. State v. Gendron, 166 Ariz. 562, 566, 804 P.2d 95, 99 (App.

1990), vacated in part on other grounds, State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991).

Use the language in brackets as appropriate to the facts.

“Peace officer,” “physical force,” “serious physical injury,” and “deadly physical force”

are defined in A.R.S. § 13-105 (Statutory Definition Instructions 1.0525, 1.0528, 1.0534 and

1.059).

OMMENT: This instruction tracks the statutory language. In Tennessee v. Garner, 471 U.S. 1,

11-12 (1985), the Court, in a civil damage action, held that deadly physical force may not be

used unless it is necessary to prevent the escape and the officer has probable cause to believe

CHAPTER 4

that the suspect poses a significant threat of death or serious physical injury to the officer or

others. The Arizona statute arguably conflicts with Garner because in paragraph 2 above, the

statute allows use of physical force by a civilian when the danger did not involve the use of

deadly physical force. The impact of this possible conflict has not been decided in Arizona.

The underlying factual prerequisites are identical to Statutory Criminal Instruction 4.09,

except that it has been changed to comply with the deadly force language in A.R.S. § 13-

410(B), because A.R.S. § 13-410(B) predicates the use of deadly force by a non-peace officer

on the underlying factual prerequisites countenanced under A.R.S. § 13-409.

A.R.S. § 13-410(B) creates a limited right for members of the public to resist excessive

police force. State v. Bojorquez, 138 Ariz. 495, 498, 675 P.2d 1314, 1317 (1984); State v.

Gendron, 166 Ariz. 562, 566, 804 P.2d 95, 99 (App. 1990), vacated in part on other grounds, State v.

Gendron, 168 Ariz. 153, 812 P.2d 626 (1991).

4.10(3a) − Justification for Using Deadly Physical Force in Law Enforcement by a

Peace Officer

A defendant who was a peace officer was justified in using deadly physical force against

another if:

1. The defendant was [making an arrest or detention] [assisting in making an arrest or

detention] [preventing the escape after arrest or detention] [assisting in preventing

the escape after arrest or detention] of another person; and

2. A reasonable person would have believed that using deadly physical force was

immediately necessary [to effect the arrest or detention] [to prevent the escape]; and

3. [The defendant made known to the other person the purpose of the arrest or

detention] [The defendant believed that the other person knew the purpose of the

arrest or detention] [The defendant could not have reasonably made known to the

person to be arrested or detained, the purpose of the arrest or detention]; and

4. A reasonable person would have believed that the arrest or detention was lawful; and

5. The defendant reasonably believed it necessary to defend himself/herself or a third

person from what the defendant believed to be the [use] [imminent use] of deadly

physical force.

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-410(C)(1) (statutory language as of 1989) and 13-205 (statutory

language as of April 24, 2006); State v. Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995).

SE NOTE: Use the language in brackets as appropriate to the facts.

“Deadly Physical Force” is defined in A.R.S. § 13-105 (Statutory Definition Instruction

1.059).

REVISED ARIZONA JURY INSTRUCTIONS − CRIMINAL, 5TH

COMMENT: Unlike the language in A.R.S. §§ 13-410(A) and (B), which specifically requires a

“reasonable person” standard, or in A.R.S. § 13-410(D), which specifically requires a

“reasonable officer” standard, the language in A.R.S. § 13-410(C) is unclear as to whether the

legislature intended to require an objective or subjective standard. A plain reading of A.R.S.

§ 13-410(C) allows the use of deadly force by a peace officer based upon what the defendant

officer reasonably believes is necessary, thereby creating a subjective standard. However,

because § 13-410(C) relies upon § 13-409, which contains a reasonable person standard, it is

possible for a court to conclude that an objective standard should apply. In such case, the

court should include the following sentence in the text of the instruction: “You must

measure the defendant’s belief against what a reasonable [person] [peace officer] in the

situation would have believed.” See State v. Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10

(1995). There is no statutory definition of “reasonable peace officer” in A.R.S. § 13-410, and

the Committee was unable to locate any criminal cases providing such a definition. However,

the reader is directed to the following two cases that discuss reasonable police conduct: State

v. Superior Court, 185 Ariz. 47, 912 P.2d 51 (App. 1996); State v. Fortier, 113 Ariz. 332, 553

P.2d 1206 (1976).

The underlying factual prerequisites are identical to Statutory Criminal Instruction 4.09,

because A.R.S. § 13-410(C) predicates the use of deadly physical force by a peace officer on

the situations countenanced under A.R.S. § 13-409.

Notwithstanding, a peace officer may threaten deadly physical force at any time when

reasonably necessary to protect against another’s potential use of physical force or deadly

physical force. See A.R.S. § 13-410(D).

4.10(3b) − Justification for Using Deadly Physical Force in Law Enforcement by a

Peace Officer

A defendant who was a peace officer was justified in using deadly physical force against

another if:

1. The defendant was [making an arrest or detention] [assisting in making an arrest or

detention] [preventing the escape after arrest or detention] [assisting in preventing

the escape after arrest or detention] of another person; and

2. [The defendant made known to the other person the purpose of the arrest or

detention] [The defendant believed that the other person knew the purpose of the

arrest or detention] [The defendant could not have reasonably made known to the

person to be arrested or detained, the purpose of the arrest or detention]; and

3. A reasonable person would have believed that the arrest or detention was lawful; and

4. The defendant reasonably believed that the use of deadly physical force was

necessary to (effect an arrest) (prevent the escape from custody) of the (suspect)

(escapee) whom the peace officer reasonably believed:

[had (committed/attempted to commit/was committing/was attempting to

commit) a felony involving the use or threatened use of a deadly weapon.]

[was attempting to escape by use of a deadly weapon.]

CHAPTER 4

[through past or present conduct of the (suspect/escapee), which conduct

was known by the defendant that the (suspect/escapee) was likely to

endanger human life or inflict serious bodily injury to another unless

apprehended immediately.]

[was necessary to lawfully suppress a riot if the (suspect/escapee) or another

person participating in the riot was armed with a deadly weapon.]

The State has the burden of proving beyond a reasonable doubt that the defendant did

not act with such justification. If the State fails to carry this burden, then you must find the

defendant not guilty of the charge. [The user is directed to the Prefatory Use Note regarding the

applicability of this paragraph.]

SOURCE: A.R.S. §§ 13-410(C)(2) (statutory language as of 1989 and 13-205 (statutory

language as of April 24, 2006); State v. Grannis, 183 Ariz. 52, 60-61, 900 P.2d 1, 9-10 (1995).

SE NOTE: Use the language in brackets and slashes as appropriate to the facts.

“Deadly weapon,” “peace officer,” “physical force” and “deadly physical force” are

defined in A.R.S. § 13-105 (Statutory Definition Instructions 1.0510, 1.0525, 1.0528 and

1.059).

OMMENT: Unlike the language in A.R.S. § 13-410(A) and (B), which specifically requires a