WPIC 300.05 Aggravating Circumstance Procedure—Advance Oral Instruction for Bifurcated Trial
11A WAPRAC WPIC 300.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 300.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XVI. Exceptional Sentences—Aggravating Circumstances
WPIC CHAPTER 300. Exceptional Sentences—Aggravating Circumstances
WPIC 300.05 Aggravating Circumstance Procedure—Advance Oral Instruction for Bifurcated Trial
Based upon your verdict in this case, there are some additional issues that the law requires you to decide.
The prosecuting attorney has alleged the existence of certain additional facts related to [[this] [these] offense[s]] [and] [or] [this defendant]. Specifically, the prosecuting attorney alleges that (insert aggravating circumstances alleged in the notice required by RCW 9.94A.537(1)). [Repeat for each count.]
Keep in mind that [this allegation is] [these allegations are] not evidence that the additional fact[s] exist. Your decisions as jurors must be made solely upon the evidence presented during these proceedings.
To [these] [this] additional allegation[s], the defendant has entered a denial. This denial means that you, the jury, must decide whether the State has proved the additional allegation[s] beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists. The defendant has no duty to call witnesses, produce evidence, or testify.
The defendant is presumed to be innocent of the additional allegation[s]. The presumption of innocence continues throughout the entire trial. The presumption means that you may not find the existence of the additional allegation[s] unless you conclude at the end of your deliberations that the evidence has established the existence of the additional allegation[s] beyond a reasonable doubt.
I will now explain the procedure to be followed during this portion of the trial.
First: the prosecuting attorney may make an opening statement outlining the testimony of witnesses or other evidence that [he] [she] expects to be presented during this portion of the trial. The defense attorney may then make an opening statement or may choose to make an opening statement later.
Next: The prosecuting attorney will present the testimony of witnesses or other evidence to you. When the prosecuting attorney has finished, the defense attorney may, but need not, present the testimony of witnesses or other evidence. Each witness who testifies may be cross-examined by the lawyer for the other side.
Next: When all of the evidence has been presented to you, I will instruct you on what law applies to this portion of the case. I will read the instructions to you. You will have [individual copies of] the written instructions with you in the jury room during your deliberations.
Next: The lawyers will make closing arguments.
Until you are in the jury room for those deliberations, you must not discuss the case with the other jurors or with anyone else, or remain within hearing of anyone discussing it. “No discussion” also means no emailing, text messaging, blogging, or any other form of electronic communications.
It is your duty as a jury to decide the facts in this case based upon the evidence presented to you during the entire proceeding. During your deliberations, you should consider the evidence presented to you in the first phase of this case. You should also consider any evidence offered and received during this phase of the case.
[Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. If you become aware that you or another juror has been exposed to outside information, you must privately notify [the bailiff] [(insert other applicable staff person)]; do not discuss these matters with other jurors.
By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.]
NOTE ON USE
This is not one of the written instructions on the law. The instruction explains to the jury the procedure that will be followed during the aggravating circumstances portion of the trial.
This instruction should be used whenever the facts supporting the aggravating circumstances will not be presented to the jury during the trial of the alleged crime.
COMMENT
The statutory presumption is that the jury will generally consider the existence of aggravating circumstances at the same time that it deliberates on the question of guilt. There are four statutory exceptions to this general rule: major VUCSA offenses involving a highly ranked person within a drug distribution hierarchy; domestic violence offenses involving patterns of abuse; sex offenders not amenable to treatment; and rapid recidivism. RCW 9.94A.537(4). For these four circumstances, bifurcated proceedings are authorized if the following conditions are met:
RCW 9.94A.537(4).
In some cases, evidentiary rules, constitutional concerns, and practical considerations may require the court to bifurcate a trial despite a statutory presumption to the contrary. Cf. State v. Monschke, 133 Wn.App. 313, 135 P.3d 966 (2006) (addressing bifurcation in the context of an aggravated first degree murder prosecution). Practitioners should consider their own particular circumstances before deciding whether a unitary or a bifurcated trial is most appropriate.
[Current as of April 2019.]
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