Marijuana-Related Jury Instructions under Construction

By Dean Land, Attorney Editor

At first glance, Oregon’s new marijuana laws seem simple—recreational marijuana is now legal. But a more in-depth look reveals some very complex legislation. Together, Ballot Measure 91 (2014) and House Bill 3400 (2015) take up 99 pages in Oregon Laws.

The legislation’s effect on the jury instructions is something that the Uniform Criminal Jury Instructions Committee is still working to untangle. For example, ORS 475.864 (2013), which criminalized the possession of a certain amount of marijuana, was not simply repealed. Instead, the new version of the statute criminalizes possession of marijuana under certain circumstances, based on criteria including the age of the possessor, the location of the possession, and the amount and form of the marijuana. Furthermore, the statute does not apply to licensed growers, processors, and sellers “acting in accordance with” Measure 91. ORS 475.864(6) (2015). This raises questions. Does a district attorney who charges unlawful possession of marijuana have to prove beyond a reasonable doubt that the defendant did not act in accordance with Measure 91? Or is acting in accordance with Measure 91 an affirmative defense? And perhaps most perplexing of all, how should that element of the crime be phrased for the jury?

These are among the many questions confronting the committee as it works to update the instructions for marijuana crimes. Although the committee was unable to revise these instructions in time for the 2015 UCrJI Supplement, it alerted practitioners to the issue by adding notes to the potentially affected instructions. The committee expects to have revised marijuana-crime instructions ready for the 2016 Supplement. In the meantime, judges, defense attorneys, and prosecutors are encouraged to contact committee members with any suggestions.

New Look for Criminal Jury Instructions

By Dean Land, Legal Publications Attorney Editor

Although no one has been keeping track, State v. Mills, 354 Or 350, 312 P3d 515 (2013), probably holds the record for the case that necessitated changes to the most jury instructions. Mills is the Oregon Supreme Court case holding that venue is no longer an issue for the jury. And, as anyone familiar with Oregon’s Uniform Criminal Jury Instructions knows, most of the instructions list the elements of particular crimes, beginning with the venue element: “The act occurred in _______ County, Oregon.”

After Mills came down, the Uniform Criminal Jury Instructions Committee had to remove the venue element from 381 instructions. It also withdrew three other instructions that addressed specific venue situations. So Mills accounted for changes to 63% of the instructions in the book (and a headache for a certain staff member of the Legal Publications department).

Rest assured, all those changes and more are incorporated in the 2013 Supplement to the Uniform Criminal Jury Instructions. The supplement is available for preorder at a discounted price through January 24 (and at full price thereafter), and the updated instructions will be posted on BarBooks™ by the end of January.

Jury Instructions Demystified

Here in Legal Pubs we get a lot of questions about the Oregon Uniform Civil and Criminal Jury Instructions. People want to know whether the set they have is up-to-date or how to put a kit together. This post will answer those questions and more so that jury instructions will finally be demystified.

Jury instructions are written and revised by the Uniform Civil Jury Instructions Committee and the Uniform Criminal Jury Instructions Committee. Each committee has 15 or 16 members, each serving a 3-year term.

The committees work throughout the year on instructions to be included in a supplement released each year in January (or sometimes early February). It can be a little confusing because the supplement released in January 2013, for example, is dated 2012 because it includes the instructions worked on during 2012.

What do I need to have a full set of the Uniform Civil Jury Instructions or the Uniform Criminal Jury Instructions?

A full set of the Uniform Civil Jury Instructions includes the 2005 revision with 2006-2009 annual supplements (shrink-wrapped in one package), plus the annual supplements released in 2010, 2011, and 2012. In January 2014, the 2013 annual supplement will be added to this set.

A full set of the Uniform Criminal Jury Instructions includes the 2009 revision plus the annual supplements released in 2010, 2011, and 2012. In January 2014, the 2013 annual supplement will be added to this set.

You can preorder a copy of either of the 2013 supplements now from the Bar’s online bookstore. You will be billed when your order ships.

I’m missing the 2011 and 2012 supplements. Can I just buy the 2013 supplement in January 2014 and be caught up?

No. Each supplement contains a different set of instructions. If you don’t get the 2011 and 2012 supplements, then you will be missing any instructions that were new or revised in those years. You can purchase prior supplements by contacting the Legal Publications Administrative Assistant Jenni Abalan at 503-431-6345.

How can I avoid missing supplements in the future?

If you know you want to get either the Uniform Civil or Criminal Jury Instructions every year, you can ask to be added to our Standing Order list. Just send us an email at [email protected] with your name, bar number or firm name, which jury instructions you want on Standing Order, and the number of copies you want. We’ll take care of the rest and bill you when each supplement is shipped.

How do I assemble a set of jury instructions if I’m just getting started with a whole new set?

You must always assemble the jury instructions in date order. In other words, first put the revision (or, in the case of the civil instructions, the 2005 revision w/2006-2009 supplements shrink-wrapped set) into your binder. Then start with the next annual supplement, which would be the 2010 supplement for both books, and follow the Directions in the front of the supplement regarding what to remove from the binder and what to add. Then move to the 2011 supplement and again, following the Directions provided, remove and add instructions. Continue with the remaining supplements in date order.

You may find that as you insert later supplements you are removing instructions you just put in. This happens when the committee works on and finalizes the same instruction during more than one committee year.

Do I have to wait until a supplement is released to get all of the instructions that one of the committees completes each year?

No, you don’t have to wait. Each new or revised instruction that one of the committees completes is posted to the BarBooks™ online library shortly after it is approved by the committee. Notice of newly posted instructions will be posted here on our blog and on the homepage of BarBooks™. You can download the individual new instructions one at a time or download the zip file of all of the most current instructions from the table of contents page for either the Uniform Civil or Criminal Jury Instructions.

I often need a certain jury instruction that isn’t included in the uniform instructions book. How can I suggest that the committee add this instruction?

If you know of a jury instruction that is needed but not included in either the Uniform Civil or Criminal Jury Instructions book, send us an email at [email protected]. We will pass your suggestion on to the current chair of the relevant committee for consideration by the committee.