“I write separately to express my concern that our present jury instructions create a risk of wrongful conviction where the charge is aiding and abetting a felony murder. Both the felony murder and aiding and abetting instructions allow for conviction under a complex, and arguably relaxed, intent standard. The jury instructions for felony murder and aiding and abetting were written generally, so as to apply to all such cases. Given the general nature of their construction, there is, in my view, a significant risk that when these two instructions are both given in the same case, the jury may find it difficult to understand what level of intent the defendant must have actually had, or that the defendant understood that his co‑perpetrator had, in order to be convicted. I believe this can be remedied by the adoption of a separate and specific instruction to be used in cases where felony murder is charged on an aiding and abetting theory. While the law presumes that jurors follow their instructions, People v Graves, 458 Mich. 476, 486, 581 N.W.2d 229 (1998), it seems imprudent to accept as sufficient a set of instructions that, even to the experienced student of law, seems confusing. The need for a clear instruction is even more vital where, as here, the sentence is mandatory life without parole.” [NOTICE: This opinion is UNPUBLISHED.]
For subscription based briefing and sample instructions on this and related issues see:
Forecite NationalÔ
The Shellow Instructions
Forecite CaliforniaÔ
CG 3.7 - Failure To Tailor Elements To The Facts And Charge
