West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the West Virginia University College of Law [Spring][2006]


Jury Instruction Resources


Student Assignments

Revision Protocol

Background on the Project

Revised Homicide Jury Instructions for West Virginia

Background: In the spring semester, 2006, I taught Advanced Criminal Law at the College of Law, West Virginia University. The course focused on recommended jury instructions in homicide cases in West Virginia. The idea for the course originated with the case of State v. Schrader, 172 W.Va. 1, 302 S.E. 2d 70, a 1982 case in which the West Virginia Supreme Court, in an opinion by former Justice Richard Neely, now a Charleston lawyer, set about to define--actually, to define out of existence--the element of premeditation and deliberation in 1st degree murder cases. My first reaction on reading State v. Schrader, with students in my Criminal Law course, was one of utter amazement. Who could imagine, after several hundred years of court decisions numbering in the hundreds, if not thousands, finding a 1st degree murder cases in which a court struggles to "define" one of the basic--the basic?--elements of 1st degree murder. One might take encouragement in the idea that, after so many years and so many cases, the court is still trying to get it right. Or, one might, with some discouragement, see State v. Schrader as an instance of the fact that we--lawyers and judges--still don't know exactly what we're doing after all these years. [I might add, as a footnote, that State v. Schrader, was revisited (and for all practical purposes, overturned) in State v. Guthrie, 194 W.Va. 657, 461 S.E. 2d 163 (1995)]

Thinking about State v. Schrader and State v. Guthrie, the role of jury instructions in criminal cases, and the woeful state of the present commonly used jury instructions in West Virginia I decided to undertake the "West Virginia Homicide Jury Instruction Project."

West Virginia's Standard Jury Instructions: On December 13, 2000, the West Virginia Supreme Court of Appeals entered an order provisionally accepting proposed model jury instructions for civil and criminal cases drafted by committees previously established by the Court. The order further provided that after a six-month trial period, the "proposed" jury instructions be placed on the Court's website. [In Re: Proposed Model Jury Instructions, previously posted on the Court's website.] The Court order, In Re: Proposed Model Jury Instructions, contained the following disclaimer: "[T]he provisional adoption . . . of the proposed pattern instructions . . . is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit." The disclaimer was repeated on the website page which served as an index to the "proposed" instructions.

In 2009, the Court unceremoniously removed the "Proposed" jury instructions from its website. No explanation for the removal was provided on the Court's website. Rory L. Perry, the Clerk of the West Virginia Supreme Court of Appeals, informed us that the "proposed" jury instructions were removed from the website pending review and revision. In these web pages, we refer to the formerly approved jury instructions as Standard jury instructions. In the use of this designation we refer to the jury instruction formely found on the website of the West Virginia Supreme Court of Appeals and, we assume, still be given to juries throughout West Virginia.

The student proposals for revisions of the standard jury instructions are presented on this website and are referred to as Proposed jury instructions.

Project participants: James R. Elkins (instructor). Students: Erin Adams, Brandy Barcia, Aaron Campbell, Kevin Cimino, Jarrell Clifton, Stephanie Concodora, James (Bill) Flanigan, Corinna Foreman, Ryan Gum, Jessica Haun, Nicholas James, Julie Jaquay, Harry Montoro, Rebecca Petit, Katy Ratai, George Sidiropolis, Shannon Smith, Nora Sydow

Revised Jury Instructions for Use in Homicide Cases in West Virginia

Premeditation & Deliberation Malice Intent to Kill

Permissible Inferences Use of a Deadly Weapon

2nd Degree Murder Depraved Heart Murder (2nd Degree)

Voluntary Manslaughter Provocation Involuntary Manslaughter

Voluntary Intoxication Diminished Capacity Insanity Defense

Self Defense Battered Spouse Syndrome Aiding & Abetting

Unlawfully Kill

Standard West Virginia Jury Instructions

[The jury instructions previously "proposed" by order of the West Virginia Supreme Court are no longer being made publically available by the Court on its website. To date, we have received no news concerning court-ordered revisions of the jury instructions.]

West Virginia Cases

Supreme Court of Appeals Case Opinions

Criminal Cases Jury Instructions (Jurisdictions other than West Virginia): Alaska | Connecticut | Florida | Idaho | Iowa | New Jersey | New York | Oklahoma | Tennessee |

Federal Circuit Courts: 1st Circuit | 3rd Circuit | 5th Circuit | 6th Circuit | 7th Circuit | 8th Circuit | 9th Circuit | 11th Circuit

Bibliography: Compilation of Articles

Disclaimer: While the revised jury instructions presented here have been carefully researched, there is no guarantee they will past muster on review by the West Virginia Supreme Court of Appeals. If in the review and use of these instructions, mistakes or misinterpretations of West Virginia law are found, please let us know so appropriate corrections can be made. Contact: james r. elkins