In re Standard Jury Instructions in Criminal Cases (No. 2004-1) (911 So. 2d 766, 2005)

Citations

911 So. 2d 766

Full opinion text

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions (Criminal) petitions this Court to amend the Florida Standard Jury Instructions in Criminal Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The proposed amendments were published in The Florida Bar News, and comments were received in response to proposals one and two only. The proposed amendments are as follows:

Proposal 1: Revised instruction for justifiable use of deadly force.

Proposal 2: Revised instruction for justifiable use of non-deadly force.

Proposal 3: Revised instruction for rules of deliberation.

Proposal 4: Revised instruction for aggravated child abuse.

Proposal 5: Revised instruction for bribery offenses.

Proposal 6: Revised instruction for theft offenses.

Proposal 7: Revised grand jury handbook and grand jury instructions.

We hereby authorize the publication and use of the revised instructions as to Proposal 3, Proposal 4, Proposal 5, Proposal 6 and Proposal 7 as set forth in the appendix attached to this opinion. In light of recent legislation related to the use of deadly force, which will require a complete rewriting of these instructions related to the use of force, we do not approve the publication of the revised instructions as to Proposal 1 and Proposal 2. See ch. 2005-27, Laws of Fla. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions or contesting the legal correctness of these instructions. We further caution all interested parties that the notes and comments associated with the instructions reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

3.10 RULES FOR DELIBERATION

These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

1. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.

2. This case must be decided only upon the evidence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instructions.

3. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone.

4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case.

When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5.

5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a proper sentence if the defendant is found guilty.

6. Whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.

Give 7 if applicable

7. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his][her] testimony.

8. Your verdict should not be influenced by feelings of prejudice, bias or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions.

16.1 AGGRAVATED CHILD ABUSE

§ 827.03(2), Fla. Stat.

To prove the crime of aggravated child-abuse Aggravated Child Abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable

a. committed aggravated battery upon (victim).

b. willfully tortured (victim).

c. maliciously punished (victim).

d. willfully and unlawfully caged (victim).

e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement.

2. (Victim) was under the age of 18 years.

Definitions: Give as applicable

In order to prove that an aggravated battery was committed, the stateState must prove the following:

1. (Defendant) intentionally

Give as applicable

a. touched or struck (victim) against the will of (victim).

b. caused bodily harm to (victim).

2. In so doing, (defendant) intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] or [used a deadly weapon].

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

“Willfully” means knowingly, intentionally, and purposely.

will, hatred, spite, or an evil intent wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

Give in all cases if 1(e) is alleged

“Child Abuse” means [the intentional infliction of physical or mental injury upon a child] [an intentional act that could reasonably be expected to result in physical or mental injury to a child] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child].

19.1 BRIBERY OF PUBLIC SERVANT

§ 838.015(1), Fla. Stat.

To prove the crime of Bribery of a Public Servant, the State must prove the following four elements beyond a reasonable doubt:

1. (Person bribed) was a (office of person bribed).

2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge).

3. The (read from charge) was something of value, benefit, or advantage to [(person bribed)] [a person in whose welfare (person bribed) was interested] not authorized by law.

4. The [gift] [offer] [promise] was made for the purpose of corruptly influencing (person bribed) in the performance of some act or omission that

Give ba or fb as applicable

a. [(defendant) believed to be

[within the official discretion of (person bribed)].]»

[in violation of a public duty of (person bribed)].]»

[in performance of a public duty of (person bribed)].]»

b. [ (person bribed) represented as being

[within [his][her] official discretion].]»

[in violation of [his][her] public duty].]»

[in performance of [his][her] public duty].]»

Definition

§ 838.014(6), Fla. Stat.

“Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and-for-the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the-[his][her] public duties.

The court now instructs you that a (office of person bribed) is a public servant.

§ 888.015(2), Fla. Stat

In order for the defendant to be guilty, it is not necessary that the act with respect to which the bribe was [given] [offered] [promised] was properly pending before (person bribed), or that by law it might be properly brought before [him][her], or that [he][she] was qualified to act in the desired way, or that [he][she] had jurisdiction over the matter, or that [his][her] official action was necessary to achieve the purpose of the defendant.

Give if applicable § 888.01k(h), Fla. Stat.

For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office.

19.2 BRIBERY BY PUBLIC SERVANT

§ 838.015(1), Fla. Stat.

To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was a (office of defendant).

2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge).

3. The (read from charge) was something of value, benefit or advantage to [(defendant)] [a person in whose welfare (defendant) was interested] not authorized by law.

4. The [request] [solicitation] [acceptance] [agreement to accept] was made with intent of corruptly being influenced in the performance of some act or omission that

Give b.a or fb as applicable

a. [(person making bribe) believed to be

[within the official discretion of (defendant)].]»

[in violation of a public duty of (defendant)].]»

[in performance of a public duty of (defendant)].]»

b. [ (defendant) represented as being

[within [his][her] official discretion].]»

[in violation [his][her] public duty].]*

[in performance of [his][her] public duty].]*

Definition

§ 838.014(6), Fla. Stat.

“Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit-resulting--from some-act or omission of a public servant that is inconsistent with-the proper performance of the-public servant’s public duties.

The court now instructs you that a (office of defendant) is a public servant. § 838.015(2), Fla. Stat.

In order for the defendant to be guilty, it is not necessary that the act with respect to which [the bribe was [requested] [solicited] [accepted]] [an agreement was reached for the bribe] was properly pending before the defendant, or that by law it might be properly brought before [him] [her], or that [he][she] was qualified to act in the desired way, or that [he][she] had jurisdiction over the matter, or that [his][her] official action was necessary to achieve the purpose of the person making the bribe.

Give if applicable § 838.014(4), Fla. Stat.

19.3 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT

§ 838.016(1), Fla. Stat.

To prove the crime of Bribery Unlawful Compensation or Reward of a Public Servant, the State must prove the following four elements beyond a reasonable doubt:

1. (Person bribed) was a (office of person bribed).

2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge).

3. The (read from charge) was something of value, benefit, or advantage to [(person bribed)] [a person in whose welfare (person bribed) was interested] not authorized by law.

4. The [gift] [offer] [promise] was corruptly made for the past, present, or future performance, nonperformance, or violation of any act or omission of (person bribed) that

Give 4a or 4b as applicable

a. [(defendant) believed to be [within the official discretion

of (person bribed)].]*

[in violation of a public duty of (person bribed)].],

[in performance of a public duty of (person bribed)].]*

b. [(person bribed) represented as being

[within [his][her] official discretion].]*

[in violation of [his][her] public duty].]*

[in performance of [his][her] public duty].]

Definition

§ 838.014(6) Fla. Stat.

“Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and-for-the purpose-of compensating or paying-for any benefit resulting from-some act or omission of a-public servant that is inconsistent with the proper performance of [his][her] public duties.

The court now instructs you that a (office of person bribed) is a public servant.

§ 838.016(3), Fla. Stat.

In order for the defendant to be guilty, it is not necessary that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was [given] [offered] [promised] was accomplished or was within the official discretion or public duty of the public servant whose action or omission was sought to be rewarded or compensated.

Give if applicable

§ 838.0UU), Fla. Stat.

§ 838.016(1), Fla. Stat.

There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given.

19.4 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT

§ 838.016(1), Fla. Stat.

To prove the crime of Bribery Unlawful Compensation or Reward by a Public Servant, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was a (office of defendant).

2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge).

3. The (read from charge) was something of value, benefit or advantage to [(defendant)] [a person in whose welfare (defendant) was interested] not authorized by law.

4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future performance, nonperformance or violation of any act or omission of (defendant) that

Give ka or fb as applicable

a. [(person making bribe) believed to be

[within the official discretion of (defendant)].].

[in violation of a public duty of (defendant)].].

[in performance of a public duty of (defendant)].].

b. [(defendant) represented as being

[within [his] [her] official discretion].].

[in violation of [his][her] public duty].].

[in performance of [his] [her] public duty].],

Definition

§ 888.014.(6), Fla. Stat.

“Corruptly” means acting knowingly and dishonestly for a wrongful purpose done-with -a-wrongful-intent-and for the pur-pose-of-obtaining-or-receiving-com-pensation-for-ani^-benefit-resulting-from some act or omission of a public servant formance-of-[-his-][-her-]-the-public--serv-ant’s public duties.

The court now instructs you that a (office of defendant) is a public servant. § 888.016(3), Fla. Stat.

In order for the defendant to be guilty, it is not necessary that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was requested or solicited was accomplished or was within the official discretion or public duty of the defendant.

Give if applicable

§ 838.014(4), Fla. Stat.

§ 838.016(1), Fla. Stat.

19.5 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT

§ 838.016(2), Fla. Stat.

To prove the crime of Bribery Unlawful Compensation or Reward of a Public Servant, the State must prove the following four elements beyond a reasonable doubt:

1. (Person bribed) was a (office of person bribed).

2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge).

3. The (read from charge) was something of value, benefit, or advantage to [(person bribed)] [a person in whose welfare (person bribed) was interested] not authorized by law.

4. The [gift] [offer] [promise] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission that

Give 4a or 4b as applicable

a. [(defendant) believed to be

[within the official discretion of (person sought to be influenced)].],

[in violation of a public duty of (person sought to be influenced)].],

[in performance of a public duty of (person sought to be influenced)].],

b. [was represented to (defendant) as being

[within the official discretion of (person sought to be influenced)].],

[in violation of the public duty of (person sought to be influenced)].],

[in performance of the public duty of (person sought to be influenced)].]»

Definition

§ 8S8.0U(6), Fla. Stat.

“Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating-or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with-the proper performance of [his-][her] public duties.

The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant.

§ 888.016(3), Fla. Stat.

In order for the defendant to be guilty, it is not necessary that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated.

Give if applicable § 838.01k.(f), Fla. Stat..

19.6 BRIBERY- UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT

§ 838.016(2), Fla. Stat.

To prove the crime of Bribery Unlawful Compensation or Reward by a Public Servant, the State must prove the following four elements beyond a reasonable doubt:

1. (Person bribed) was a (office of person bribed).

2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge).

3. The (read from charge) was something of value, benefit, or advantage to [(defendant)] [a person in whose welfare (defendant) was interested] not authorized by law.

4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission which

Give ka or fb as applicable

a. [(Person making bribe) believed to be

[within the official discretion of (person sought to be influenced)].]»

[in violation of a public duty of (person sought to be influenced)].]»

[in performance of a public duty of (person sought to be influenced)].]»

b. [was represénted to (person making bribe) as being

[within the official discretion of (person sought to be influenced)].]»

[in violation of the public duty of (person sought to be influenced)].]»

[in performance of the public duty of (person sought to be influenced)].]»

Definition

§ 8S8.0U(6), Fla. Stat.

“Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining-or — receiving-compensation for any-benefit-resulting'-from some act or omission-oFa-public-servant that is inconsistent-w-ith-the-proper performance of [his][-her-j-publie--duties.

The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant.

§ 838.016(3), Fla. Stat.

Give if applicable § 838.01fU), Fla. Stat.

14.1 THEFT

§ 812.014, Fla. Stat.

To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim).

2. [He][She] did so with intent to, either temporarily or permanently, [deprive (victim) of [his][her] right to the property or any benefit from it.]

[appropriate the property of (victim) to [his][her] own use or to the use of any person not entitled to it.]

Degrees; give if property is of monetary value up to extent of charge

If you find the defendant guilty of theft, you must determine by your verdict whether:

a. [The value of the property taken was $100,000 or more.]

b. [The property taken was cargo valued at $50,000 or more that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.]

c. [The property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.]

d. [The property taken was emergency medical equipment valued at $300 or more that was taken from a licensed facility or from an emergency medical aircraft or vehicle.]

e. [The value of the property taken was $20,000 or more but less than $100,000.]

f. [The value of the property taken was $300 or more but less than $20,-000.]

g. [The value of the property taken was less than $300.]

Give if applicable

h. [The property was [a will, codicil, or other testamentary instrument.] [a firearm.] [a motor vehicle.] [a commercially farmed animal.] [an aquaculture species raised at a permitted aquaculture facility.] [a fire extinguisher.] [2,000 or more pieces of fruit.] [taken from a posted construction site.] [a stop sign.] [anhydrous ammonia.]]

i. [The value of the property taken was $100 or more but less than $300, and was taken from [a dwelling] [the enclosed curtilage of a dwelling].]

Inferences; give if applicable § 812.022(1), Fla. Stat.

Proof that a person presented false identification not current in respect to name, address, place of employment, or other material aspect in connection with the leasing of personal property, or failed to return leased property within 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with unlawful intent to commit theft.

Inferences; give if applicable § 812.022(2), Fla. Stat.

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Definitions; give if applicable

§ 812.012(1), Fla. Stat.

“Cargo” means partial or entire shipments, containers, or cartons of property which are contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight consolidation facility, or air navigation facility.

§ 812.011(2)(b)3, Fla. Stat.

“Emergency medical equipment” means mechanical or electronic apparatus used to provide emergency service and care or to treat medical emergencies.

§ 895.002(10), Fla. Stat.

“Emergency service and care” means medical screening, examination, and evaluation by a physician, or other medically appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists, and if it does, the care, treatment or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

§ 895.002(17), Fla. Stat.

“Licensed facility” means a hospital, ambulatory surgical center, or mobile surgical facility licensed by the Florida Agency for Health Care Administration. See Ch. 895, Fla. Stat.

§ 812.011(2)(b)3, Fla. Stat.

“Emergency medical aircraft or vehicle” means any aircraft, ambulance or other vehicle used as an emergency medical service vehicle that has been issued a permit in accordance with Florida law.

§ 812.012(8), Fla. Stat.

“Obtains or uses” means any manner of

(a) Taking or exercising control over property.

(b) Making any unauthorized use, disposition, or transfer of property.

(d) (1) Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, deception; or

(2) Other conduct similar in nature. “Endeavor” means to attempt or try.

§ 812.012(h), Fla. Stat.

“Property” means anything of value, and includes:

real property, including things growing on, affixed to and found in land;

tangible or intangible personal property, including rights, privileges, interests, and claims; and services.

§ 812.012(6), Fla. Stat.

“Services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes:

repairs or improvements to property;

professional services; private, public or government communication, transportation, power, water, or sanitation services; lodging accommodations; and admissions to places of exhibition or entertainment.

§ 812.012(10), Fla. Stat.

“Value” means:

The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible.

In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege, or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret.

If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $300.

Amounts of value of separate properties, involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several persons, may be totaled in determining the grade of the offense.

30 GRAND JURY HANDBOOK INTRODUCTION

“Jury service is one of the highest duties of citizenship, for by it the citizen participates in the administration of justice .... ”

Harlan Fisk Stone

Chief Justice

United States Supreme Court

You are one of those citizens who have been selected to perform this “highest duty of citizenship.”

In time of peace there is no higher duty a citizen can perform than that of jury service; however, few citizens when called to serve have any understanding of the principles that control the actions of the grand juror.

This handbook is intended only to give the juror a better understanding of the general nature of his or her functions, together with some suggestions as how best to carry them out. The court itself will be the final authority in its instructions to the grand jury. This handbook is not intended in any manner whatever as a substitute for the instructions given by the presiding judge.

WHAT IS A GRAND JURY

A grand jury is an investigative, reporting and accusing agency of the circuit court (or of the Florida Supreme Court in the case of the statewide grand jury). It consists of citizens of a specified number who have been summoned and empaneled by a judge of the circuit court (or by a judge appointed by the Florida Supreme Court, in the case of the statewide grand jury). The grand jury is an agency and an arm of the circuit court (or the Florida Supreme Court in the case of the statewide grand jury) and is uniquely independent.

The grand jury is answerable to no person or agency of government except the court that empanels it and, even then, only to the extent that it may exceed its authority and privileges.

TERM OF THE GRAND JURY

At least two terms of court are held each year and once the grand jury is empaneled, it will serve for the balance of the term of court. In exceptional cases, its term may be extended. (The statewide grand jury’s term is for a period of 12 months, but may be extended for up to 18 months.) The grand jury will not be in constant session but will be called in from time to time as necessary.

WHO ARE GRAND JURORS

Grand jurors are United States citizens and Florida legal residents of this state and their respective counties who are at least 18 years of age and who possess a driver’s license or identification card issued by the Department of Highway Safety and Motor Vehicles, or who execute an affidavit indicating a desire to serve as a juror.

All jurors are selected at random and their names are taken from lists prepared by the clerk of the circuit court.

The process of selecting jurors is done in most counties by the county commissioners and in some counties by a specially constituted jury commission. The process of selecting the statewide grand jury is handled by the State Court Administrator for the Florida Supreme Court.

When making up the jury list, the officers compiling it are required to select only citizens they believe to be law-abiding, and of proven integrity, good character, sound judgment and intelligence, and who are neither physically nor mentally infirm.

DISQUALIFICATION TO SERVE AS A GRAND OR PETIT JUROR

Any person who has been convicted of a felony or bribery, forgery, perjury, or larceny is disqualified to sit as a juror, unless his or her civil rights have been restored.

A person under prosecution for any crime is disqualified.

Most government officials are disqualified to serve on a jury. An elected public official is not eligible to be a grand juror.

FREQUENTLY USED WORDS AND PHRASES

Throughout this handbook and during your term as a grand juror certain terms will occur frequently. Some of these are:

Capital Crime. A capital crime is any crime for which the maximum punishment is death.

Circuit Court. The State of Florida is divided into 20 judicial “circuits.” Each circuit covers one or more counties. The circuit court is the highest trial court in the circuit.

Defendant. A “defendant” is a person who has been accused of a crime and is defending himself or herself in a court against the criminal charge. The words “defendant” and “accused” are used interchangeably.

Felony. A “felony” is any crime which is punishable by imprisonment in a state penitentiary for a term in excess of one year. A “misdemeanor” is any crime which is punishable by imprisonment in a county correctional facility for a term of not more than one year.

Indictment; True Bill. A “true bill” is a charge brought by the grand jury accusing a person of a crime. A true bill, when it is filed in court, then becomes an “indictment.”

Judge. The judge presiding over the trial is often called or referred to as “the court.”

No True Bill. A “no true bill” is a finding by the grand jury that on a given charge no indictment should be filed.

Presentment. A “presentment” is a presentation to the court of a grand jury’s report of its actions and recommendations.

State Attorney. Each circuit in the State of Florida has a “state attorney” who, together with assistants, prosecutes all crimes and offenses in the circuit and county courts in the circuit. Some other states refer to this officer as a “district attorney” or “prosecuting attorney.”

Statewide Prosecutor. The statewide prosecutor is appointed by the Attorney General of the State of Florida to investigate and prosecute certain multi-circuit criminal activity.

GRAND JURY AND PETIT JURY DISTINGUISHED

There are two kind of juries: grand juries and petit juries.

The grand jury consists of up to-23 not fewer than 15 nor more than 21 (or 18 for statewide grand jury) members. A petit jury, depending upon the type of trial, consists of either 6 or 12 members.

The grand jury and the petit jury have entirely different purposes and functions. A petit jury actually tries a case and renders a verdict of guilty or not guilty after hearing both sides. A grand jury does not try a case on the issue of guilt or innocence. The grand jury rarely hears both sides. Its function is simply to hear witnesses as to a charge of crime, by the State, and to determine whether the person, or persons, so charged should be brought to trial. The grand jury has been called both a sword and shield of justice — • a sword because it is a terror to criminals, a shield because it is protection of the innocent against unjust prosecution.

The tremendous power of the grand jury obviously creates grave and solemn responsibilities to see that these powers are not perverted or abused. A grand jury,

being possessed with these tremendous powers and unless motivated by the highest sense of justice, might find indictments not warranted by the evidence and thus become a source of oppression to the citizenry.

Conversely, a misguided grand jury might dismiss charges against those who should be prosecuted. The importance of the grand jury’s power is emphasized by the fact that it is one of the most independent bodies known to the law.

HISTORY OF THE GRAND JURY

The grand jury originated more than seven centuries ago in England. It was recognized in the Magna Charta granted by King John of England upon the demand of the people in 1215 A.D. Its present form evolved in the period 1327 to 1377. Its origins can be traced back even further. As early as 997 A.D. a Danish king, “Ethelred the Unready,” charged an investigative body of his reign that it should go about its duty by accusing no innocent person, and sheltering no guilty one.

This high principle is echoed in the oath that you took as a grand juror:

“You, as grand jurors for_County (or the statewide grand jury) do solemnly swear (or affirm) that you will diligently inquire into all matters put in your charge and you will make true presentments of your findings; unless ordered by a court, you will not disclose the nature or substance of the deliberations of the grand jury, the nature or substance of any testimony or other evidence, the vote of the grand jury, or the statements of the state attorney (or the statewide prosecutor); you shall not make a presentment against a person because of envy, hatred, or malice, and you shall not fail to make a presentment against a person because of love, fear, or reward. So help you God.”

The early colonists brought the grand jury system to this country from England. It has been with us ever since. It is recognized in the Constitution of the United States and in the Constitution of Florida.

(The Statewide Grand Jury was created in 1973 to “strengthen the grand jury system and enhance the ability of the State to detect and eliminate organized criminal activity by improving the evidence gathering process in matters which transpire or have significance in more than one county.” Section 905.32, Florida Statutes.)

THE GRAND JURY AS AN ACCUSING AND INVESTIGATIVE BODY

Our constitution provides that no person shall be brought to trial for a capital crime except upon indictment of a grand jury. This means that no one may be prosecuted for a capital crime except by a vote of the grand jury. Except for capital crimes, the state attorney (or the statewide prosecutor) may initiate all other criminal charges. The grand jury of course may indict for any crime that the evidence justifies.

The wisdom of leaving to the state attorney (or the statewide prosecutor) the bringing of charges as to crimes less than capital crimes and traffic violations is readily apparent. If the grand jury was required to initiate the prosecution of less serious crimes through indictment, the grand jury would be so overwhelmed with complaints that it could not perform its more important duties.

Charges of crime may be brought to your attention in several ways: by the court; by the state attorney (or the statewide prosecutor); from personal knowledge brought to your body by any member of the grand jury; and, lastly, by private citizens who have a right to be heard by a grand jury in formal session and with the grand jury’s consent. The bulk of the grand jury’s work probably will be concerned with cases brought to its attention by the state attorney (or the statewide prosecutor). In most instances a person being considered for indictment by the grand jury will have been held preliminarily on a charge brought before a judge sitting as a committing magistrate, who bound that person over for action by the grand jury. The accused will be either in custody or on bail. Your action, therefore, should be reasonably prompt in either voting an indictment as to the charge or returning a “no true bill.”

The grand jury should consult with the state attorney (or the statewide prosecutor) or an assistant state attorney (or the assistant statewide prosecutor) in advance of undertaking a formal investigation on the grand jury’s own initiative.

A grand juror may not be subject to partisan secret influences. Consequently, no one has the right to approach a juror in order to persuade that juror that an indictment should or should not be found. Any individual who wishes to be heard by the grand jury should be referred to the state attorney (or the statewide prosecutor) or to the foreperson of the grand jury, and thereafter be heard only in formal session of the grand jury.

It is imperative that you always keep in mind that as a grand juror you are a public official, with the duty of protecting the public by enforcing the law of the land. Therefore, even though you may think a certain law to be unduly harsh or illogical, that should not influence your judgment in carrying out your duties as a grand juror. A citizen has the right to endeavor to change the law. A grand juror, being a public official, has a duty to enforce the law as it exists despite any personal inclinations to the contrary.

The grand jury in addition to the duty of formally indicting those charged with crime has the further important duty of making investigations on its own initiative, which it will report as a “presentment.” This duty permits investigation of how public officials are conducting their offices and discharging their public trusts. The grand jury may investigate as to whether public institutions are being properly administered and conducted. It has the power to inspect those institutions and, if necessary, may call before the grand jury those in charge of the operations of public institutions as well as any other person who has information and can testify concerning them. If the grand jury finds that an unlawful, improper or corrupt condition exists, it may recommend a remedy.

The grand jury may not act arbitrarily. Investigations shall not be based upon street rumor, gossip or whim, and the investigations cannot be the subject of a grand jury presentment. The grand jury can only investigate those matters that are within its jurisdiction, geographic and otherwise. The limitations of the grand jury’s jurisdiction have been set forth for you by the court in its instructions.

It is important to keep in mind that no individual should be unjustly criticized or held up to scorn or public resentment, particularly when it is remembered that the individuals who may be criticized had no opportunity to defend themselves or give reply to the charges. A grand juror must keep in mind that the grand jury is the ultimate instrument of justice and should never be subverted to become the vehicle for harassment or oppression.

OFFICERS OF THE GRAND JURY

The judge who presided over the empaneling of the grand jury in the “charge to the grand jury” advised you formally and in great detail as to how the grand jury is organized and functions. In summary, the grand jury consists of 18-oiy4n some places, of 23 15 but not more than 21 members. Its officers are the foreperson, who will preside over the grand jury deliberations to make sure they are carried on in an orderly fashion including overseeing the examination of the witnesses; a vice-foreperson, who will preside in the absence of the foreperson or if for any reason the foreperson is not able to carry out his or her duty; and the clerk, who will keep a record of the proceedings had before the grand jury and formally make return of these records to the clerk of the circuit court (or clerk of the Supreme Court in the case of the statewide grand jury) for safekeeping. The foreperson and vice-foreperson are appointed by the judge and the clerk is appointed by the foreperson (or in the case of the statewide grand jury, may be selected by the group). The state attorney (or the statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutors) will act as the legal advisers to the grand jury. The grand jury also will be provided an official court reporter or recorder to record the testimony before the grand jury.

If the grand jury has its own budget, a treasurer of the grand jury may also be appointed to keep account of all receipts and disbursements made to or from the grand jury budget.

If any question should arise concerning how the grand jury shall operate or function, you may apply to the judge, who will advise you.

PROCEDURES

Not less than 18 15 members of a 28 member grand jury, and 15 of an 18-member-statewide grand jury must always be present to constitute a quorum. If less than a quorum exists, the proceedings of the grand jury must be halted until a quorum is present. Grand jurors, who, because of an emergency, find that they will be unable to attend a grand jury session should advise the grand jury clerk or foreperson immediately.

An affirmative vote of at least 12 members of the grand jury is necessary to the return of a true bill or indictment. Therefore, even though a quorum is present it still requires at least 12 votes of individual members, rather than a mere majority of those present, in order to return a true bill.

PROCEEDINGS OF THE GRAND JURY

Most of the work of the grand jury involves hearing witnesses and determining the sufficiency of evidence on the issue of whether that evidence, without regard to possible defenses, justifies indictment. Generally, the state attorney (or statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutors) will present and explain the charge to the grand jury and advise as to the witnesses who will be presented, either voluntarily or upon being summoned on the request of the state attorney (or statewide prosecutor) or the grand jury itself. The grand jury may call any witness it deems appropriate and necessary.

The witnesses will be called one by one and placed under oath to tell the truth. Generally, the state attorney (or statewide prosecutor) will administer the oath. This oath should be administered in a solemn, dignified and deliberate manner in order to impress upon the witness the seriousness of the situation and the duty to be truthful. The state attorney (or the statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutor) ordinarily will undertake to question the witnesses first. If the foreperson, or any member of the grand jury desires to do so, they then also may propound questions. It is suggested, however, that any question first be submitted to the state attorney (or statewide prosecutor), who will determine whether the question is appropriate.

Grand jurors should keep in mind that they are acting in a judicial capacity and sitting in judgment of evidence before them. For this reason all questioning should be done in a calm, impartial and objective manner without indicating the personal feelings of the person asking the questions.

Occasionally, a witness when brought before the grand jury refuses to testify or answer questions. If this occurs, both the question the witness has refused to answer and the fact of refusal should be carefully recorded. The matter then should be brought before the court, with a complete copy of the record, in order to obtain from the court a ruling on whether the witness may be compelled to answer the question. In most instances a refusal to answer is based upon the claim of the witness that the answer will violate the constitutional right against self-incrimination. If the answer does tend to incriminate the witness, the witness cannot be made to answer. If it does not, however, the witness will be ordered to answer under penalty of contempt.

An accused person cannot be compelled to testify before a grand jury although one under investigation by the grand jury may appear voluntarily to testify. In that event, however, the grand jury should proceed with great caution and should not permit one under investigation to testify until after first conferring with the state attorney (or the statewide prosecutor). If an accused, or any person under investigation, is permitted to testify before the grand jury without waiving the constitutional right against self-incrimination, any indictment or presentment would be null and void.

It is clear that the matter of forcing a witness to testify or of giving the accused an opportunity to testify raises complicated legal questions. The advice of the state attorney (or the statewide prosecutor) and, when necessary, a ruling from the court, therefore, always should be sought when these questions arise.

A witness is permitted to be represented before the grand jury by one attorney. The attorney may be present for the purpose of advising and consulting with the witness, but may not address the grand jurors, raise objections, or make arguments. (This provision does not apply to proceedings of the Statewide Grand Jury.)

DETERMINATION WHETHER TO RETURN AN INDICTMENT OR A NO TRUE BILL

When the grand jury has heard all necessary or available witnesses and is prepared to deliberate on the issue whether to indict or return a no true bill, the foreperson must compel all persons to leave the grand jury room except the members of the grand jury themselves. No other person is permitted in the grand jury room during its deliberations, even including the state attorney (or the statewide prosecutor), court reporter and interpreter.

When the question of whether to indict or return a no true bill is presented, all grand jurors have the right to comment on the evidence and to express their views of the matter. Only when all members of the grand jury have expressed themselves and each has been given the opportunity to be heard should a vote be taken. A vote to return an indictment can be found only upon the affirmative vote of at least 12 members of the grand jury.

Similar proceedings should be taken when the matter to be discussed is not a criminal charge or indictment but a presentment, as noted above.

If all persons, except the grand jurors, are not removed from the grand jury room during its deliberations, any indictment or presentment would be nullified.

THE STATE ATTORNEY (OR THE STATEWIDE PROSECUTOR) AS LEGAL ADVISOR TO THE GRAND JURY

The court in its charge to the grand jury outlined the part that the state attorney (or the statewide prosecutor) will play in assisting the grand jury. The state attorney (or the statewide prosecutor) will assume responsibility for presenting witnesses and bringing testimony before the grand jury. The state attorney (or the statewide prosecutor) is a public official and is entitled to the confidence and cooperation of the grand jury.

It occurs sometimes, however, that even the best of advisors may be in error. If a difference of opinion arises between the state attorney (or the statewide prosecutor) and the grand jury and it cannot be resolved amicably, the matter should be brought before the presiding judge for a ruling.

SECRECY OF GRAND JURY PROCEEDINGS

Secrecy as to all grand jury proceedings is of the utmost importance. This includes not only the actions upon an indictment or a presentment but even the fact that any such matter was considered, or any witness was called. It is only in this manner that, the grand jurors themselves can be protected from pressure by persons who may be involved by the action of the grand jury. Secrecy also is the only protection that a witness may have before a grand jury, which will protect the witness from being tampered with or intimidated before testifying at the trial. Further, secrecy may prevent one under indictment, or subject to indictment, from escaping while the issue of indictment is under consideration. It also should be remembered that secrecy may encourage witnesses to give the grand jury frankly and candidly any knowledge they may have concerning crime or corruption. Lastly, and of equal importance to all other consideration of secrecy, is the fact that an innocent person who has been subjected to a charge but not indicted should be protected from the embarrassment and disgrace attendant upon the making of a charge before a grand jury.

The pledge of secrecy is paramount. It also is permanent.

A grand juror will not communicate to family, friends, associates or anyone concerning any matter that takes place in the grand jury room. The only time this veil of secrecy may be lifted is by order of the court after a full hearing, and then only in exceptional cases.

PROTECTION AND IMMUNITY OF GRAND JURORS

Grand jurors are fully protected from actions against them by being an independent body answerable to no one except the court that empanels it. No inquiry may be made to learn what grand jurors said or how they voted. The law gives the grand juror complete immunity for official acts. There is only one exception: if a grand juror testifies as a witness for the grand jury as to a commission of a crime and that testimony is perjured, the juror could be prosecuted for that perjury. This complete protection for the official acts obviously is vital to the operation of the grand jury and points up that grand jurors should be citizens of unquestionable integrity and high character.

ON BEING A GRAND JUROR — SOME PRACTICAL SUGGESTIONS

Attend all sessions of the grand jury. Your attendance should be regular and on time. If you are unable to attend a session and wish to be excused, obtain permission from the foreperson. The unexpected lack of a quorum could cause a great loss of money, as well as the time of the jurors, the authorities and. the witnesses. The public is depending on you.

Pay close attention to testimony given and the evidence presented.

Be courteous to the witnesses and your fellow jurors.

Fix the time and place of your meetings, keeping in mind the convenience of the public and the witnesses as well as yourselves and the state attorney (and the statewide prosecutor).

Do not interrupt until the state attorney (or the statewide prosecutor) has finished questioning the witness. In all probability the evidence you are interested in will be brought out by those questions.

Listen to the opinions of your fellow jurors, but maintain your own independent viewpoint.

Be independent, but not obstinate.

Be absolutely fair. You are acting as a judge. You therefore must be guided by your own good conscience and sense of justice.

All jurors have an equal voice in determining whether an indictment shall be returned. Each of you has a right to state your reasons.

Do not remain silent when the case is under discussion and then, after a decision has been made, criticize the acts of the grand jury.

A reckless grand jury is as bad as a weak grand jury.

Do not attempt to investigate matters beyond the province of the grand jury, or merely because someone suggested an investigation.

Above all, refrain from discussing grand jury matters with fellow jurors outside of the grand jury room.

Each juror has a duty and responsibility equal to yours. Each juror is entitled to be satisfied with the evidence. If others wish to pursue a matter further, no effort should be made to dismiss the witness or shut off proper discussion.

CONCLUSION

Your membership on the grand jury is an honor. You are one of the few citizens who have been called upon to perform this service. Your service as a grand juror will be a source of pride and satisfaction to you if you devote to it the responsible participation and dedicated service that the grand jury is entitled to expect from its members.

31 FLORIDA GRAND JURY INSTRUCTIONS

1 PRELIMINARY STATEMENTS

1.1 LADIES AND GENTLEMEN, the oath you have just taken now constitutes you the grand jury for _ (county) (or the statewide grand jury) for this term of court. Your term begins today and will continue through the (date). You will not be expected to remain in continuous session, but you will be called from time to time when circumstances require your consideration. Your immediate duty will be to consider those matters to be presented to you at this time.

1.2 It is my duty to instruct you concerning your duties and it is your duty to follow these instructions as you understand them.

1.3 Your duties are those of an investigative body. You are authorized to inquire into and investigate both criminal and civil matters. You should be fully aware at all times of the enormous power vested in the grand jury. This power carries with it the profound responsibility to see that it is not abused. You are responsible only to the court.

1.4 No duty of citizenship is more important than service as a grand juror, for no other group of citizens has the opportunity to make a more valuable contribution to the administration of justice.

1.5 The grand jury system is of ancient vintage. History has proved its effectiveness in regulating the affairs of free people. The seven hundred years of its existence in its present form justifies it as a guardian of all that is comprehended in the police power of the state.

1.6 You always should keep in mind that the grand jury is both a sword and a shield ... a sword because the power of the grand jury has a chilling and deterrent effect on those who violate the law ... it is a shield because of its power and duty to protect the innocent against persecution.

1.7 Your service as a grand juror will be a satisfying and rewarding experience for by it you will participate directly in the administration of justice. You will have the opportunity, if circumstances justify it, to inquire into, examine and investigate not only violations of the criminal law but all phases of the civil administration of government. You should bring to your task your most wholehearted and conscientious efforts. The grand jury is one of the keystones of democracy. Grand jurors upon being called into service are expected to exercise their honest convictions and best judgment in the administration of justice. The grand jury operates freely, unhampered and subject only to the restraint fixed by the limitations and requirements of the law itself.

1.8The importance of your work as a grand juror of this county (or the statewide grand jury) and your grave responsibility must be realized by each of you and be kept in mind during all of your investigations and deliberations.

2 INSTRUCTIONS ON CRIMINAL MATTERS

2.1 The function of the grand jury in criminal matters is to investigate and determine whether there is sufficient evidence to justify an indictment against an accused.

2.2 It is not your province to try the case and determine the guilt or innocence of the accused, and you are not expected to do this.

2.3 The guilt or innocence of a person indicted by the grand jury is determined by a trial jury that will be the case. The trial jury hears all the evidence, on both sides, in an adversary proceeding under the supervision of a trial judge. Upon the trial based upon the indictment the accused is entitled to be present and have the assistance of counsel and a verdict is rendered only after the accused has had an opportunity to see and hear the witnesses, examine the evidence and have the case argued by counsel. The trial jury will be charged by the trial judge on the law applicable to the case. These safeguards are designed to protect and preserve the constitutional rights of an accused.

2.4 Your duty is only to ascertain whether there is “probable cause” a crime has been committed by the person so accused. If the evidence is sufficient to constitute “probable cause,” then it is your duty to find what is known as a “true bill.” If the grand jury does find a “true bill” and it is properly returned in open court, it then becomes the “indictment” on which the accused will be put to trial.

2.5 “Probable cause,” which must be shown to your satisfaction before you will be justified in returning a “true bill,” is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that a particular person is guilty of a particular crime.

2.6 You should vote to return a “true bill” if you find “probable cause” that a crime has been committed and that the accused probably did commit that crime. There may be instances when it seems probable that a crime has been committed and yet you feel that the accused is not guilty or you have a strong doubt in your mind as to guilt. In those cases you should vote not to return a “true bill,” for in those cases you should keep in mind that you have heard only one side of the case and have no knowledge of the defendant’s side of the case. Certainly, if there is considerable doubt in your minds of the accused, then it cannot be expected that the State could convince a trial jury of a defendant’s guilt beyond every reasonable doubt, when the State’s case will be vigorously attacked and the trial jury also will hear the defendant’s story. A state attorney (or a statewide prosecutor) will advise and counsel the grand jury as its legal advisor and while you do not have to follow that advice you should give it strong consideration. The state attorney (or the statewide prosecutor) also will be in a position to advise whether other evidence may be available at the time of trial if the accused is indicted.

2.7 When so justified it is your solemn duty to cause the accused person to be indicted; likewise, when an indictment is not justified, it is equally your solemn duty to clear the accused person by returning a “no true bill.”

2.8 Our state constitution provides that no person may be tried for a capital crime except on presentment and indictment by a grand jury. A capital crime is one that is punishable by death. Although you have the authority to do so, the court recommends that a grand jury not investigate criminal matters other than capital cases unless they are of such public importance that they justify the additional time and