SEQ CHAPTER \h \r 1CR07-251 06/18/03

DEFENSE OF SAFE RELEASE FROM KIDNAPPING -- 13 V.S.A. § 2405(b)

In this case there is an additional issue regarding the defense of safe release.  If you find that the State has proven all of the essential elements of kidnapping, beyond a reasonable doubt, you will need to consider this defense.  But, if the State has not proven all of the essential elements of kidnapping, then you must return a verdict of “not guilty,” and your job is done.

(Def)_______________ bears the burden of proving safe release, by a preponderance of the evidence.  This means that the evidence must show that the elements of the defense are more likely true than not true.  This burden of proof is less than proof beyond a reasonable doubt.

[For a fuller instruction on Proof by a Preponderance of the Evidence, insert CR04-121.]

“Safe release,” if proven, means that (Def)_______________ reduces the degree of a kidnapping by proving the safe release.  But, proof of a safe release will not relieve (Def)_______________ of all criminal responsibility for the kidnapping.

In order to prove the defense of safe release, (Def)_______________ must have proven the following elements, by a preponderance of the evidence:

(1) that (Def)_______________;

(2) caused (victim)_______________ to be released, alive and in a safe place; and

(3) that (Def)_______________’s acts did not cause (victim)_______________ to suffer serious bodily injury; and

(4) that the release took place before (Def)_______________ was arraigned on this charge.

The first element of the defense is the identity of (Def)_______________ as the person who caused (victim)_______________ to be released.  Second, (Def)_______________ must have taken some action that brought about (victim)_______________’s release in a safe place.  (Victim)_______________ must have been released alive, and (victim)_______________ must not have suffered serious bodily injury.

Serious bodily injury means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement.  The term bodily injury means physical pain, illness or any impairment of physical condition.

Finally, the release must have taken place before (Def)_______________ was arraigned.  An arraignment is the court procedure when a person is formally charged with an offense and comes before the court to enter a plea.  [In this case (Def)_______________ was arraigned on (date)_______________.]

To summarize, if you find that the State has not proven all of the essential elements of the charge of kidnapping beyond a reasonable doubt, then you must find (Def)_______________ not guilty.  However, if you find that the State has proven all of the essential elements beyond a reasonable doubt, then you must decide whether (Def)_______________ has proven the elements of safe release, by a preponderance of the evidence.  Your verdict will be one of the following:

! Not guilty of any crime; or

! Guilty of kidnapping, without a safe release of the victim; or

! Guilty of kidnapping, with a safe release of the victim.