CO H:09 CHOICE OF EVILS
Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)
H:09 CHOICE OF EVILS
The evidence presented in this case has raised the affirmative defense of “choice of evils,” as a defense to [insert name(s) of offense(s)].
The defendant’s conduct was legally authorized if:
1. it was necessary as an emergency measure to avoid an imminent public or private injury, which was about to occur because of a situation occasioned or developed through no conduct of the defendant, and
2. the injury was of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweighed the desirability of avoiding the injury sought to be prevented by the statute defining [insert name(s) of offense(s)].
The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.
After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s].
After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s].
1. See § 18-1-702, C.R.S. 2016 (stating that this affirmative defense is available unless inconsistent with other provisions of sections 18-1-703 to 707, defining the justifiable use of physical force, or with some other provision of law).
2. “When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.” § 18-1-702(2), C.R.S. 2016.
3. The statute defining the defense of duress, section 18-1-708, C.R.S. 2016, states: “The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.”
4. In People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990), a division of the Court of Appeals relied on dictionary definitions of three terms that appear in the statutory definition of the choice of evils defense: “emergency,” “imminent,” and “urgency.” However, the division cited these definitions for the limited purpose of disapproving a trial court’s decision to instruct the jury concerning the choice of evils defense (specifically, the division held that a kidnapping victim’s mere affiliation with the Unification Church was insufficient to warrant an instruction in a case where the defendant asserted a need to “deprogram” the victim). Accordingly, because the Committee has concluded that all three terms are commonly understood, the dictionary definitions referenced in Brandyberry are not included in Chapter F.
5. A defendant is not entitled to a choice of evils instruction based on mere speculation. See People v. Brante, 232 P.3d 204, 210 (Colo. App. 2009) (defendant’s speculative fears did not rise to the level of an impending injury demanding immediate action).
6. A division of the Court of Appeals has questioned whether the choice of evils defense applies to nonintentional conduct, and has suggested that an instruction may not be necessary where the concept is sufficiently embodied in a self-defense instruction. See People v. Roberts, 983 P.2d 11, 15 (Colo. App. 1998).
7. The choice of evils defense is not available as a justification for behavior that attempts to bring about social and political change outside the democratic governmental process. See Andrews v. People, 800 P.2d 607, 609 (Colo. 1990) (choice of evils defense unavailable to protesters charged with public order offenses committed during a protest at nuclear weapons plant).
8. See also People v. Dover, 790 P.2d 834, 834-35 (Colo. 1990) (attorney charged with driving eighty miles per hour in a fifty-five mile per hour zone who claimed he was late for a court hearing was not entitled to assert an emergency defense under a provision of the traffic code, now codified as section 42-4-1101(9), C.R.S. 2016, that is a corollary to the choice of evils defense); People v. McKnight, 626 P.2d 678, 681 (Colo. 1981) (defendant charged with escape from prison not entitled to assert choice of evils defense based on normal conditions of confinement).
9. See also Instruction H:64 (affirmative defense of “possession of a weapon by a previous offender—choice of evils”).