CO H:00 Comments on Chapter Use
Colorado Jury Instructions-Criminal (COLJI-Crim) (2014)
CHAPTER H. DEFENSES
SECTION I: DEFENSES THAT ARE GENERALLY APPLICABLE
H:00 Comments on Chapter Use
1. As reflected in the table of contents above, the chapter is divided into two sections. Within each section, the instructions are arranged sequentially according to the numbering of the underlying statutes.
2. The instructions for the affirmative defense of insanity are located in Chapter I.
3. In previous editions of COLJI-Crim., this chapter was captioned “Affirmative Defenses.” The Committee has retitled the chapter “Defenses” because it also contains instructions for element-negating traverses.
The supreme court has explained the distinction between these two types of defenses as follows:
There are, generally speaking, two types of defenses to criminal charges: (1) “affirmative” defenses that admit the defendant’s commission of the elements of the charged act, but seek to justify, excuse, or mitigate the commission of the act; and (2) “traverses” that effectively refute the possibility that the defendant committed the charged act by negating an element of the act. See People v. Huckleberry, 768 P.2d 1235, 1238 (Colo. 1989)(citations omitted) [(defense of alibi is not an affirmative defense requiring an instruction stating that the People bear the burden of refuting an alibi beyond a reasonable doubt)]; see also People v. Miller, 113 P.3d 743, 750 (Colo. 2005)(further explaining the distinction between affirmative defenses and traverses). In Colorado, if presented evidence raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element, and the trial court must instruct the jury that the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable. See § 18–1–407, C.R.S. (2010); Huckleberry, 768 P.2d at 1238 (citations omitted). If, on the other hand, the presented evidence raises the issue of an elemental traverse, the jury may consider the evidence in determining whether the prosecution has proven the element implicated by the traverse beyond a reasonable doubt, but the defendant is not entitled to an affirmative defense instruction. See Huckleberry, 768 P.2d at 1238.
People v. Pickering, 276 P.3d 553, 555 (Colo. 2011).
4. A defendant is entitled to an instruction concerning an affirmative defense if the trial court determines, as a matter of law, that there is some credible evidence in the record to support it. See O’Shaughnessy v. People, 269 P.3d 1233, 1236 (Colo. 2012); People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011)
5. The Committee has designed model affirmative defense instructions that are to be referenced by inclusion of the following language in an elemental instruction: “and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.”
However, when the jury is instructed concerning the affirmative defense of insanity, the following language should be included as the final element of the offense (and it should be numbered as a separate element, as shown in the example below, whether insanity is the only affirmative defense or an alternative to one of the other affirmative defenses which are to be referenced using the “was not legally authorized” language that appears within the final bracketed element of each model elemental instruction):
_. and that the defendant was not insane, as defined in Instruction ___.
6. Although the Committee has drafted an affirmative defense instruction for each generally applicable defense that is identified as an “affirmative defense” by statute, in a few instances the Committee has, consistent with past practice, included comments that question the correctness of the characterization. See, e.g., Instruction H:02, Comment 2(mistaken belief of law).
7. In COLJI-Crim. (2008), the third “Note on Chapter Use” stated that “[t]here may be other, non-statutory affirmative defenses.” However, in Oram v. People, 255 P.3d 1032 (Colo. 2011), the supreme court explicitly rejected this proposition and held that “all affirmative defenses to crimes must be defined by the General Assembly in the Colorado Revised Statutes.” Id. at 1036 (the common-law bonding agent’s privilege does not exist in Colorado as an affirmative defense to burglary).
8. This chapter does not include an instruction defining an affirmative defense based on the concept of an “intervening cause.” There is no statute establishing such an affirmative defense, and when the supreme court has likened the concept of an “intervening cause” to an affirmative defense it has done so only for a narrow purpose:
The quantum of evidence that must be offered by the defendant in order to be entitled to an instruction on a theory of defense is “a scintilla of evidence”. See People v. Lundy, 188 Colo. 194, 197, 533 P.2d 920, 921 (1975). “Some credible evidence”, an alternative statement of the “scintilla of evidence” standard, is necessary to present an affirmative defense. See People v. Dover, 790 P.2d 834, 836 (Colo. 1990). It merely requires some evidence to support the defense. See People v. Dillon, 655 P.2d 841, 845 (Colo. 1982). We hold that the intervening cause defense is treated like an affirmative defense or a theory of defense for the purpose of determining the quantum of evidence necessary to submit the issue to the jury. Therefore, a defendant must present a scintilla of evidence, or some evidence, [of an intervening cause] in order to be entitled to submit the issue to the jury. The court, not the jury, must make threshold determinations of whether an affirmative defense can be supported by the evidence.
People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo. 1998)(emphasis added).
Significantly, although the court has, in dicta, referred to an “intervening cause” as an “affirmative defense,” see People v. Stewart, 55 P.3d 107, 119 (Colo. 2002)(“[w]hile it is possible that Stewart . . . wished to deemphasize intervening cause as an affirmative defense to first and second degree assault”); People v. Fite, 627 P.2d 761, 765 n.6 (Colo. 1981)(acknowledging that “[t]he issue of supervening cause was submitted to the jury as an affirmative defense,” but holding, as a matter of law, that there was no evidence of an intervening cause), it has never found error based on the absence of an instruction defining the concept of an intervening cause as an affirmative defense. Nor has it ever directed a trial court to instruct a jury in such a manner, even when it has concluded that an instruction was warranted. See People v. Bowman, 669 P.2d 1369, 1379 (Colo. 1983)(“We direct that, if the evidence presented on retrial warrants it, the jury should be fully instructed about the law concerning supervening causes as set forth in People v. Calvaresi, [188 Colo. 277, 534 P.2d 316 (1975)].”). Moreover, no earlier edition of COLJI-Crim. has included an instruction defining an “intervening cause” as an affirmative defense.
Accordingly, the Committee has concluded that, when a defendant makes the threshold showing necessary to obtain an intervening cause instruction, see People v. Stewart, 55 P.3d 107, 119; People v. Saavedra-Rodriguez, 971 P.2d at 228, the element-negating traverse should be explained in a separate instruction, or by adding language to an instruction that defines the term “cause.” The latter approach is consistent with CJI-Civ. 9:20 (2014)(defining “cause” with optional language discussing the concept of an intervening cause), and there is support for it in People v. Deadmond, 683 P.2d 763, 768 (Colo. 1984)(trial court did not err by rejecting the defendant’s proffered instruction defining “intervening cause” because the concept was explained in the instruction defining “proximate cause,” which “fully apprised the jury of the nature of the causal connection between conduct and result which the prosecution was required to establish beyond a reasonable doubt”). See also People v. Gentry, 738 P.2d 1188, 1189-90 (Colo. 1987)(both the defendant’s theory of defense instruction, which the supreme court disapproved because it did not state that only negligence rising to the level of “gross negligence” can constitute an “intervening cause,” and the prosecution’s tendered instruction, which the trial court rejected, described an “intervening cause” merely as a “defense,” and not as an affirmative defense); People v. Grassi, 192 P.3d 496, 499 (Colo. App. 2008)(instruction defining “proximate cause” was “an amalgam of both the civil and criminal jury instructions on proximate cause [that] was done to accommodate defendant’s defense that his conduct was not the proximate cause of the accident or the victim’s resulting death, but that the victim’s actions had been the intervening cause of both”); People v. Marquez, 107 P.3d 993, 997 (Colo. App. 2004)(“The instructions given by the court required the jurors to find that the prosecution had proved the causation element of vehicular homicide beyond a reasonable doubt, and they gave the jurors a correct definition of ‘proximate cause.’ The additional references to intervening cause and related concepts were superfluous. However, any error inured to defendant’s benefit, in that it suggested the existence of a defense to the causation element that was unwarranted in light of the evidence presented.”).
9. Citations to definitional instructions located in Chapter F are included in the comments that follow the defense instructions. However, citations to definitional instructions are not included for those terms that also appear in the corresponding elemental instructions (because citations to those definitional instructions are included as part of the comments for the elemental instructions). For example, the second comment for Instruction H:69(affirmative defense of “recreational marijuana”) includes numerous citations to definitional instructions in Chapter F, but it does not include a citation to Instruction F:208(defining “marijuana”), because a citation to that definitional instruction is included in a comment for each elemental instruction that defines a marijuana offense.
10. In COLJI-Crim. (2008), the first instruction in Chapter H, Instruction H:01, was captioned as: “Affirmative Defenses –Generally.” The instruction contained just two paragraphs which stated the prosecution’s burden of proof with respect to affirmative defenses, and a comment advised users that “[t]his language should now be included in the concluding paragraphs of affirmative defense instructions and not set forth in a separate instruction.”
In this edition of COLJI-Crim., the Committee has substantially revised the burden-of-proof language and, as in COLJI-Crim. 2008, included the burden-of-proof language in each of the model affirmative defense instructions in Chapter H. Because the Committee did not see a need to have a freestanding instruction that merely states the prosecution’s burden of proof (or, more accurately, its burden of disproof), Instruction H:01 now defines the first affirmative defense in the chapter (i.e., mistaken belief of fact).
When drafting an instruction to define a statutory affirmative defense for which there is no model instruction, use as a template one of the model instructions that includes the burden-of-proof language.