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WPIC 2.24 Threat—Definition

11 WAPRAC WPIC 2.24Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 2.24 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Washington State Supreme Court Committee on Jury Instructions
Part I. General Instructions
WPIC CHAPTER 2. Definitions
WPIC 2.24 Threat—Definition
Threat means to communicate, directly or indirectly, the intent
[to cause bodily injury in the future to the person threatened or to any other person] [or]
[to cause physical damage to the property of a person other than the actor] [or]
[to subject the person threatened or any other person to physical confinement or restraint] [or]
[to accuse any person of a crime or cause criminal charges to be instituted against any person] [or]
[to expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule] [or]
[to reveal any information sought to be concealed by the person threatened] [or]
[to testify or provide information, or withhold testimony or information, with respect to another's legal claim or defense] [or]
[to take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding] [or]
[to bring about or continue a strike, boycott, or other similar collective action to obtain property that is not demanded or received for the benefit of the group which the actor purports to represent] [or]
[to do any [other] act that is intended to harm substantially the person threatened or another with respect to that person's health, safety, business, financial condition, or personal relationships].
To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in [jest or idle talk] [jest, idle talk, or political argument].
Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction). Select from among the bracketed phrases so as to use only those that apply to the particular case. With regard to the bracketed clause relating to political argument, see the Comment below.
Use WPIC 2.03 (Bodily Injury—Physical Injury—Definition), as applicable, with this instruction.
Portions of this instruction may be used with, or as an alternative to, WPIC 115.52 (Intimidating a Witness—Threat—Definition), in combination with WPIC 115.51 (Intimidating a Witness—Threat to Former Witness—Elements). See the Comments to those instructions.
RCW 9A.04.110.
Threat. Several statutes supplement RCW 9A.04.110 with an additional definition of threat: “to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time.” See RCW 9A.76.180(3)(a) (intimidating a public servant); RCW 9A.72.160 (intimidating a judge); RCW 9A.72.130 (intimidating a juror); and RCW 9A.72.110 (intimidating a witness).
A speaker need not actually intend to carry out a threat in order for the communication to constitute a threat, as long as the speaker objectively knows that the communication constitutes a threat. State v. Kilburn, 151 Wn.2d 36, 48, 84 P.3d 1215 (2004); see also State v. Side, 105 Wn.App. 787, 790, 21 P.3d 321 (2001). A statement may constitute a threat even if it does not actually reach the victim. State v. Hansen, 122 Wn.2d 712, 717–18, 862 P.2d 117 (1993); State v. Side, 105 Wn.App. at 790.
Use of the second bracketed phrase is proper in a prosecution under RCW 9.61.160, threatening to bomb or injure property. State v. Edwards, 84 Wn.App. 5, 924 P.2d 397 (1996). A conditional threat to injure property in the future is within this definition. State v. Edwards, 84 Wn.App. at 11–12. See the Comment to WPIC 86.02 (Threatening to Bomb or Injure Property—Elements).
Use of the first bracketed phrase, which is the language of RCW 9A.04.110(27)(a), is error in a robbery case because that statutory definition refers to threat to do injury in the future. State v. Gallaher, 24 Wn.App. 819, 604 P.2d 185 (1979).
True threat. The constitution requires the prosecution to prove a true threat for many offenses, including: felony harassment involving a threat to kill (see cases cited earlier in this section); threats to bomb or injure property (see State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006)); threats involved in intimidating a judge (State v. Hansen, 122 Wn.2d 712, 862 P.2d 117 (1993)); threats to bomb a government building (State v. Smith, 93 Wn.App. 45, 966 P.2d 411 (1998)); and threats involved in intimidating a public servant (State v. Stephenson, 89 Wn.App. 794, 966 P.2d 411 (1997)); see also State v. King, 135 Wn.App. 662, 145 P.3d 1224 (2006) (holding that an instruction defining “true threat” is not needed for the crime of intimidating a former witness, RCW 9A.72.110; the crime's elements are such that they limit the statute's application to true threats and exclude constitutionally protected speech). An indirect threat may also constitute a true threat. State v. Locke, 175 Wn.App. 779, 789, 307 P.3d 771 (2013). The true threat requirement is imposed so that criminal statutes prohibiting threats do not target constitutionally protected speech. See State v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001).
The requirement, however, is not an essential element of a harassment statute. State v. Allen, 176 Wn.2d 611, 628, 294 P.3d 679 (2013); State v. Tellez, 141 Wn.App. 479, 170 P.3d 75 (2007). Instead, the constitutional requirement of “true threat” merely defines and limits the scope of the essential threat element. State v. Allen, 176 Wn.2d at 630. The Allen court further stated that the current pattern instruction's definition of “threat” matches the definition of “true threat” and that the definition meets the requirements for establishing the constitutional mens rea in harassment cases. State v. Allen, 176 Wn.2d at 629. See also State v. Boyle, 183 Wn.App. 1, 7–8, 335 P.3d 954 (2014).
The pattern instruction does not use the term “true threat.” Instructing jurors using this term could unnecessarily confuse the issues by causing jurors to speculate about “false” threats. Accordingly, the WPI Committee incorporated the constitutional concepts into the instruction's final paragraph without directly referring to the legal term of art.
A true threat is defined as
a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted … as a serious expression of intention to inflict bodily harm upon or to take the life of another person. A true threat is a serious threat, not one said in jest, idle talk, or political argument. Under this standard, whether a true threat has been made is determined under an objective standard that focuses on the speaker.
State v. Kilburn, 151 Wn.2d at 43–44 (citations omitted). See also State v. J.M., 144 Wn.2d 472, 481–82, 28 P.3d 720 (2001).
A true threat can be found even when there is no actual intent to carry out the threat. State v. Kilburn, 151 Wn.2d at 44–48.
The instruction directs jurors to consider foreseeability from the standpoint of a reasonable person in the position of the speaker. This language incorporates the requirement that true threats be evaluated using an “objective standard that focuses on the speaker.” See, e.g., State v. Kilburn, 151 Wn.2d at 44.
True threat—political advocacy. The case law establishes that true threats are to be distinguished from constitutionally protected speech, including not only statements made in jest and idle talk, but also political arguments. See State v. Kilburn, 151 Wn.2d at 43; State v. J.M., 144 Wn.2d at 477–78.
The context of political advocacy raises special considerations with regard to constitutionally protected speech. See, e.g., Watts v. U.S., 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (holding that the statement “if they ever make me carry a rifle the first man I want in my sights is L.B.J.” in a political speech did not amount to a threat against the life of the President). For cases involving political speech, some additional instructions may be necessary to address these issues. For cases that do not involve political speech, practitioners may avoid these issues by omitting the bracketed reference to political arguments.
[Current as of November 2018.]
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