Criminal jury instruction amendments.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following:

2.13--PRIOR INCONSISTENT STATEMENT AS IMPEACHMENT

3.9(c)--EYEWITNESS IDENTIFICATION

5.1--ATTEMPT TO COMMIT CRIME

8.3--BATTERY

8.4--AGGRAVATED BATTERY

8.4(a)--AGGRAVTED BATTERY (PREGNANT VICTIM)

8.5--FELONY BATTERY

8.11--BATTERY ON A LAW ENFORCEMENT OFFICER, ETC.

8.13--AGGRAVATED BATTERY ON A LAW ENFORCEMT OFFICER, ETC.

8.14--AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

8.16--BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

8.20--BATTERY ON FACILITY EMPLOYEE

8.26--SEXUAL CYBERHARASSMENT

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before October 15. The committee will review all comments received in response to the above proposals at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instructions, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel's Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

2.13 PRIOR INCONSISTENT STATEMENT AS IMPEACHMENT

To be given if requested.

The evidence that a witness may have made a prior statement that is inconsistent with [his] [her] testimony in court should be considered only for the purpose of weighing the credibility of the witness's testimony and should not be considered as evidence or proof of the truth of the prior statement or for any other purpose.

Comment

This instruction was adopted in 2018.

3.9(c) EYEWITNESS IDENTIFICATION

Give if eyewitness identification is a disputed issue and if requested.

You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may consider the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also consider:

1. The capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance.

2. Whether the identification was the product of the eyewitness's own recollection or was the result of influence or suggestiveness.

3. The circumstances under which the defendant was presented to the eyewitness for identification.

4. Any inconsistent identifications made by the eyewitness.

5. Any instance in which the eyewitness did not make an identification when given the opportunity to do so.

6. The witness's familiarity with the subject identified.

7. Lapses of time between the event and the identification^].

8. Whether the eyewitness and the offender are of different races or ethnic groups, and whether this may have affected the accuracy of the identification.

9. The totality of circumstances surrounding the eyewitness's identification.

   Lineup Requirements. Give if applicable. [section] 92.70, Fla. Stat.

   You have heard testimony concerning a [live] [photo] lineup conducted by a law enforcement agency. Florida law requires that the person conducting the lineup must not have participated in the investigation of the crime alleged and must not have been aware of which person in the lineup was the suspect.

   When an independent administrator was not used. Give as applicable.

   As an alternative, it is permissible under Florida law if

   [an automated computer program automatically administered the photo lineup directly to an eyewitness and prevented the person conducting the lineup from seeing which photograph the eyewitness viewed until after the procedure was completed.]

   [photographs were placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the person conducting the lineup did not see or did not track which photograph was presented to the eyewitness until after the procedure was completed.]

   [the lineup procedure achieved neutral administration and prevented the person conducting the lineup from knowing which photograph was presented to the eyewitness during the identification procedure.]

   Give in all cases involving a lineup.

   Also, before conducting a lineup, the eyewitness must be instructed that:

1. The perpetrator might or might not be in the lineup;

   Give #2 only when an independent administrator was used.

2. The person conducting the lineup does not know the suspect's identity;

3. The eyewitness should not feel compelled to make an identification:

4. It is as important to exclude innocent persons as it is to identify the perpetrator; and

5. The investigation will continue with or without an identification.

   The eyewitness must acknowledge, in writing, that he or she received a copy of the lineup instructions. If the eyewitness refused to sign a document acknowledging receipt of the instructions, the person conducting the lineup must document the refusal of the eyewitness to sign a document acknowledging receipt of the instructions, and the person conducting the lineup must sign the acknowledgment document himself or herself.

   You may consider compliance or noncompliance with these requirements to determine the reliability of an eyewitness identification made during a lineup procedure.

   Comment

   This instruction was adopted in 20123 [141 So. 3d 132] and amended in 2013 [122 So. 3d 302], and 2018.

   5.1 ATTEMPT TO COMMIT CRIME

   [section] 777.04(1), Fla. Stat.

   Use when attempt is charged or is a lesser included offense.

   [begin strikethrough][ [end strikethrough]To prove the crime of Attempted [begin strikethrough]to Commit[end strikethrough] (crime [begin strikethrough]charged[end strikethrough] attempted), the State must prove the following two elements beyond a reasonable doubt:][endin strikethrough]

   Use when necessary to define "attempt" as an element of another crime.

   [begin strikethrough][In order to prove that the defendant attempted to commit the crime of (crime charged attempted), the State must prove the following beyond a reasonable doubt:][end strikethrough]

1. (Defendant) did some act toward committing the crime of (crime attempted) that went beyond just thinking or talking about it.

2. [He] [She] would have committed the crime except that

   1. [begin strikethrough][someone prevented [him] [her] from committing the crime of (crime charged attempted)][end strikethrough].

      [or]

   2. [begin strikethrough][[he] [she] failed.][end strikethrough]

      The crime of (crime attempted) is defined as (insert elements of crime attempted);

      Give if applicable. Affirmative Defense. [section] 777.04(5)(a), Fla. Stat. Carroll v. State, 680 So. 2d 1065 (Fla. 3dDCA 1996). Harriman v. State, 174 So. 3d 1044 (Fla. 1st DCA 2015).

      It is a defense to the crime of [begin strikethrough]attempt to commit[end strikethrough] Attempted (crime charged attempted) if the defendant abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

      Renunciation is not complete and voluntary where the defendant failed to complete the crime because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances known by the defendant that increased the probability of being apprehended.

      If you find that the defendant proved by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find

      [him] [her] not guilty of Attempted (crime attempted).

      If the defendant failed to prove by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit the offense or that [he] [she] otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] guilty of Attempted (crime attempted) if all the elements of the charge have been proven beyond a reasonable doubt.

      Lesser Included Offenses

      No lesser included offenses have been identified for this offense.

      Comments

      As of [begin strikethrough]November 2015[end strikethrough] August 2017, no case law addressed the issue of whether renunciation remains a defense to an attempt to commit a crime where some harm was done.

      This instruction was adopted in 1981 and amended in 2017 [213 So. 3d 680] and 2018.

      8.3 BATTERY [section] 784.03, Fla._Stat.

      To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

      Give 1 and/or 2 as [begin strikethrough]applicable[end strikethrough] depending on the charging document.

1. [begin strikethrough][(Defendant) actually and intentionally touched or struck (victim) against [his] [her] wifi.] [end strikethrough]

2. [begin strikethrough][(Defendant) intentionally caused bodily harm to (victim).][end strikethrough]

   Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

   An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

   Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).

   A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate...