CR07-821 01/11/21

INABILITY TO CARRY OUT THREAT DEFENSE TO CRIMINAL THREATENING – 13 V.S.A. § 1702(f)

This case presents the defense that (Def)_______________ did not have the ability to carry out the threat. If you find that the State has proven all of the essential elements of criminal threatening, beyond a reasonable doubt, then you will need to consider this defense. If the State has not proven all of the essential elements of criminal threatening, then you must return a verdict of “not guilty.”

(Def)_______________ has the burden to prove this defense 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.

In order to prove this defense, (Def)_______________ must have proven that [he][she] did not have the ability to carry out the threat. When you consider this defense, you should consider all of the surrounding facts and circumstances proven by the evidence.

If the State has proven the essential elements of criminal threatening beyond a reasonable doubt, and if (Def)_______________ has failed to prove by a preponderance of the evidence that [he] [she] did not have the ability to carry out the threat, then you must find [him] [her] guilty of criminal threatening. However, if the State has not proven the essential elements of criminal threatening, or if (Def)_______________ has proven that [he] [she] did not have the ability to carry out the threat, then you must find (Def)_______________ not guilty.