HAWAI’I JURY INSTRUCTIONS

HI 7.11 CHOICE OF EVILS — ESCAPE

The defendant has raised the affirmative defense of “choice of evils.” Before you may consider “choice of evils,” you must first determine whether the prosecution has proven all of the elements of escape beyond a reasonable doubt. If you unanimously find that the prosecution has not proven all of the elements of escape beyond a reasonable doubt, then you must find the defendant not guilty of escape without considering “choice of evils.” If you unanimously find that the prosecution has proven all of the elements of escape beyond a reasonable doubt, then you must consider “choice of evils.” “Choice of evils” is an affirmative defense to the charge of escape.

“Choice of evils” has five elements. These five elements are:

1. The defendant received a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack and the threatened harm was imminent;

2. A complaint to the proper prison authorities was either impossible under the circumstances or there exists a history of futile complaints;

3. Under the circumstances, there was no time or opportunity to resort to the courts;

4. No force or violence was used against prison personnel or other innocent persons; and

5. The defendant promptly reported to the proper authorities when the defendant had attained a position of safety from the immediate threat.

The defendant must prove an affirmative defense by a preponderance of the evidence. This means that the defendant must prove that it is more likely than not, or more probable than not, that each element of “choice of evils” occurred. In determining whether the defendant has proven “choice of evils” by a preponderance of the evidence, you must consider all of the evidence that has been presented to you regardless of who presented it.

If you unanimously find that the defendant has proven the five elements of the “choice of evils” defense by a preponderance of the evidence, then you must find the defendant not guilty of escape. If you unanimously find that the defendant has not proven the five elements of “choice of evils” by a preponderance of the evidence, then you must find the defendant guilty of escape.* If you are unable to reach a unanimous agreement as to whether “choice of evils” has been proved or not been proved, then a verdict may not be returned on escape.

*Modification of this sentence is required if any defense in addition to “choice of evils” is submitted to the jury.