The 2022 supplement to the Uniform Criminal Jury Instructions is now available for preorder. The Uniform Criminal Jury Instructions Committee had its work cut out for it in 2022, resulting in 35 amended instructions and two new instructions. Culpable mental states and delivery of controlled substances were just two of the topics the Committee tackled in response to appellate case law. Legal Publications Attorney Editor Dean Land, who is OSB’s liaison to the Committee, has provided the following insight into the Committee’s work.
Culpable Mental States
The Uniform Criminal Jury Instructions Committee is scrambling to keep up with the Oregon appellate courts as they continue to refine their jurisprudence regarding what culpable mental states apply to what elements of a crime. See, e.g., State v. Owen, 369 Or 288 (2022); State v. Krigbaum, 320 Or App 281 (2022); State v. Waterman, 319 Or App 695 (2022); State v. M.A.W.S., 319 Or App 426 (2022). The law is complex, and issues abound about how to draft instructions in conformity with these opinions. Just ask the Committee members who sat through hours of debate over one second-degree assault instruction. The outcome of that debate is the new version of UCrJI 1409, which applies the Owen opinion to the crime of second-degree assault with a dangerous or deadly weapon.
Other instructions remain in need of revision. In the meantime, judges and attorneys must stay up to date on relevant case law. If a uniform instruction hasn’t been updated to reflect a recent opinion, the parties will have to draft an instruction that accurately describes the current state of the law.
Delivery of Controlled Substances
In response to the Oregon Court of Appeals opinion in State v. Hubbell, 314 Or App 844 (2021), the Uniform Criminal Jury Instructions Committee has revised its instructions related to delivery of a controlled substance. The court overruled its longstanding opinion in State v. Boyd, 92 Or App 51 (1988), and now distinguishes the crime of unlawful delivery of a controlled substance based on an “attempted transfer” theory from the crime of attempted unlawful delivery of a controlled substance. The Committee has modified the delivery instructions to clarify this distinction, and it added a new instruction on attempted unlawful delivery.
Judges and attorneys handling such cases will have to take care in explaining this distinction to jurors. The Committee has provided some recommendations to that end. See UCrJI 2641. Note that the Oregon Supreme Court has allowed review in Hubbell, so further changes could be coming.