Model Jury Instructions on Homicide: VIII. Supplemental instructions

Part VIII of the Model Jury Instructions on Homicide

A. Charging a minor with murder

The Massachusetts Legislature has determined that all persons fourteen years of age or older who are charged with murder are to be tried as adults. That the defendant is being tried as an adult has nothing to do with this individual defendant, his alleged role in this case, or the strength of the evidence.

B. Definition of death

Death occurs when the heart has stopped long enough to result in complete and permanent loss of brain function. This complete and permanent loss of brain function occurs when, in the opinion of a licensed physician based on ordinary and accepted standards of medical practice, there has been a total and irreversible cessation of spontaneous brain functions and further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such functions.^[240]

C. Object of killing must be a human being

A killing is not murder unless a human being has been killed. A viable fetus is a human being under the common law of homicide.^[241]

D. Use of dangerous weapon

[Where the judge determines from the evidence at trial that the nature of the dangerous weapon used and the manner of its use reasonably supports the following inference, the judge may give the following instruction] As a general rule, you are permitted, but not required, to infer that a person who intentionally uses a dangerous weapon on another person intends to kill that person, or cause him grievous bodily harm, or intends to do an act which, in the circumstances known to him, a reasonable person would know creates a plain and strong likelihood that death would result.^[242]

[Note to Judge: It may not in all circumstances be reasonable to infer the intent required for murder in the first or second degree merely from the intentional use of a dangerous weapon. Before giving this instruction, a judge should consider the type of dangerous weapon and the manner in which it was used in the circumstances of the case, and should give this instruction only where the nature of the weapon and the manner of its use reasonably supports the inference.]

E. Questions from jury

1. Before supplemental instructions.

   Members of the jury, I am about to give you some additional instructions. In response to your question, I am going to further clarify some areas of the law for you. These new instruction(s) are no more or less important than the other instructions I gave you originally. When you [begin/resume] deliberations, you are to consider all of my instructions together as a whole.^[243]

2. After supplemental instructions.

   Remember in your deliberations you are to consider all of my instructions together as a whole—those I gave you before and those I have just given you.

F. Jury's obligation on guilt or innocence

If the evidence convinces you beyond a reasonable doubt that the defendant is guilty of a criminal offense, you have a duty to find the defendant guilty of the most serious offense that the Commonwealth has proved beyond a reasonable doubt.^[244] If the evidence does not prove beyond a reasonable doubt that the defendant is guilty of any offense charged, you must find him not guilty.

G. After jury reports deadlock on murder in the first degree

[Note to Judge: This instruction should be given only when the jury explicitly reports that they are deadlocked on murder in the first degree, and not, for instance, when they simply state that they are deadlocked.]

Your present inability to reach agreement as to murder in the first degree does not mean that you are a hung jury. If, after all reasonable efforts, you are unable to reach agreement as to murder in the first degree, or if you reach agreement that the defendant is not guilty of murder in the first degree, you should move on to consider murder in the second degree.^[245] 

Footnotes

[240] Commonwealth v. Golston, 373 Mass. 249, 252 (1977), cert. denied, 434 U.S. 1039 (1978) (affirming instruction on "brain death" that "occurs when, in the opinion of a licensed physician, based on ordinary and accepted standards of medical practice, there has been a total and irreversible cessation of spontaneous brain functions and further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such functions").

[241] Commonwealth v. Crawford, 430 Mass. 683, 689 (2000) ("killing a 'viable fetus,' as defined in the common law, is a punishable offense"); Commonwealth v. Lawrence, 404 Mass. 378, 383-384 (1989) (viable fetus is human being for purposes of crime of murder); Commonwealth v. Cass, 392 Mass. 799, 807 (1984) ("We think that the better rule is that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide").  See Commonwealth v. Ronchi, 491 Mass. 284, 296 (2023) (defendant liable where viable fetus did not suffer direct wounds but died as result of loss of maternal blood supply).

[242] See Commonwealth v. Odgren, 483 Mass. 41, 46-47 (2019) (permissive inference of malice including intent to kill from use of dangerous weapon); Commonwealth v. Tu Trinh, 458 Mass. 776, 784 & nn.12, 13 (2011) (instruction that "[a]s a general rule you are permitted to infer that a person who intentionally uses a dangerous weapon on another person is acting with malice" was "proper," but noting that "[b]ecause a firearm is inherently dangerous, we do not need to decide whether such an instruction permitting an inference of malice to be drawn would be proper if the weapon at issue were less dangerous -– a shod foot, for example").  See also Commonwealth v. Colas, 486 Mass. 831, 842-843 (2021) (inference of intent to kill from use of dangerous weapon implies "a defendant used the dangerous weapon to attack another person"; not enough that defendant pointed firearm at another without firing).

[243] Commonwealth v. Green, 55 Mass. App. Ct. 376, 383 n.8 (2002) ("As we have previously noted, the better practice is to remind the jury that the supplemental instructions are to be considered as a whole in conjunction with the main charge"); Commonwealth v. Hicks, 22 Mass. App. Ct. 139, 144-145 (1986) ("At the beginning and again at the end of the supplemental instructions, the judge should advise the jurors that all of the instructions are to be considered as a whole and that the supplemental instructions are to be considered along with the main charge, unless, of course, the supplemental instructions are given to correct an error in the main charge").

[244] Commonwealth v. Sifa Lee, 483 Mass. 531, 549 (2019) ("It is well settled that a judge may, in the exercise of discretion, inform the jury of their duty to return a verdict for the most serious crime proved against the defendant beyond a reasonable doubt"); Commonwealth v. Nelson, 468 Mass. 1, 16 (2014) (no error where judge reinstructed jury on duty to find defendant guilty of most serious offense proved beyond reasonable doubt); Commonwealth v. Rivera, 445 Mass. 119, 131 (2005) (jury required by law to return verdict of highest degree of murder proved beyond reasonable doubt); Commonwealth v. Anderson, 408 Mass. 803, 808 (1990) (judge entitled to inform jury of duty to return guilty verdict for highest crime proved beyond reasonable doubt).

[245] Commonwealth v. Figueroa, 468 Mass. 204, 228-229 (2014) (upon receiving note that jury were deadlocked as to murder in first degree, "the judge should have instructed the jury that they were not a hung jury and that if, after all reasonable efforts, they were unable to reach agreement as to murder in the first degree [or if they reached agreement that the defendant was not guilty of murder in the first degree], they should move on to consider murder in the second degree").

Date published:	March 30, 2026