death of another. because means the defendant's act was a substantial factor in producing the death. second, that the defendant caused the death by criminally reckless conduct, criminally reckless conduct means that conduct created a risk of death or great bodily harm to another person and if that the risk of death or great bodily harm was unreasonable and substantial. and that the defendant was aware that his conduct created a reasonable and substantial risk of death or great bodily harm. the circumstances and -- of the defendant's conduct showed utter disregard for human life in determining whether the circumstances of the conduct showed utter disregard for human life, you should consider these factors. what the defendant was doing,

why he was engaged in that conduct, how dangerous the conduct was, how obvious was the danger, whether the conduct showed any regard for human life and all the facts and circumstances related to the conduct. if as to the first count, you are satisfied beyond a reasonable doubt that both elements of this crime have been proved and that the defendant was not acting lawfully in self-defense, as i have instructed you on the law of self-defense, then you should find at the defendant guilty of reckless homicide in the first degree is charged on the information. if you are not so satisfied, then you must find that the defendant not guilty on this count. counts two and three of the information it gives the defendant of the crimes of recklessly endangering safety, although the elements of each of these charges are identical, the rules of self-defense which

applied to them or not. the information charges that at the same time and place, the defendant recklessly endangered the safety of richard mcginnis which, under the circumstances, so reckless disregard for human life. the third count charges that are the same time and place the defendant recklessly endangered the safety of an unknown male. under circumstances which show utter disregard for human life. first degree reckless again, endangerment as defined in the criminal code is defined as one who recklessly endangers the safety of another human being under circumstances which show utter disregard for human life. before you may find that defendant guilty of every reckless endangerment of the first degree, the state must prove by evidence which satisfies you beyond a reasonable doubt that the

following three elements were present. first, that the defendant recklessly -- excuse me, for us that the defendant endangered the safety of another human being and the risk of death or great bodily harm was unreasonable and substantial, and at that the defendant was aware that his conduct created the unreasonable and substantial risk of death or great bodily harm. great bodily harm means injury which creates a substantial risk of death or causes serious in in and permanent disfigurement or causes a permanent or protracted loss or impairment of the function of any bodily member or organ or any serious bodily injury. the third element is that the circumstances of the defendant's conduct showed utter disregard for human life. again, in determining the circumstances, whether the circumstances of the conduct showed utter disregard for human life, you should consider these factors. what the defendant was doing, why the defendant was engaged in

the conduct, how dangerous was the conduct, how obvious was a danger, was a conduct showing any regard for human life, and all over facts and circumstances related to the conduct.

when i was instructing you a moment ago on reckless homicide, i indicated there were two elements. if they are actually three. i did read all of the ingredients but i'm just going to reread a portion of that instruction so it's clear that there are three elements of that crime. i also used the word of both ofy three. so i apologize for that mistake. we will stop with the reckless endangerment for a moment and return to the reckless homicide.

in the elements of reckless homicide are that the defendant caused the death of another. at that he did so by criminally reckless conduct and at the third element which i read as part of the second is that the circumstances of the defendant's conduct showed utter disregard for human life. and what tipped me off other than causing death, the reckless endangerment which i've been reading now has the same three elements. i'm so utter disregard for human life is one of the elements of both crimes. in order to convict on the first count you must find the precedence of all three of the elements of first degree reckless homicide and also find the unreasonable doubt that the defendant was not privileged and

self-defense. is that clear? thanks very much. getting back to the reckless and endangerment charge, there is evidence in this case the defendant was acting in self-defense as to joseph rosenbaum. the fact that the law may have allowed the defendant to use force in self-defense as to joseph rosenbaum does not necessarily mean that recklessly endangering the safety of richard mcginnis was lawful. you must consider the law of self-defense in deciding whether the defendant's conduct as to richard mcginnis was reckless conduct which showed utter disregard for human life, but the defendant does not have a privilege of self-defense with respect to mr. mcginnis. so the defendant would enjoy a privilege of self-defense with respect to mr. rosenbaum if you find of the factual ingredients of that. but that doesn't mean that if he

endangered the safety of mr. mcginnis was privileged under the law of self-defense because mr. mcginnis was not attacking him. however, you must consider the law of self-defense in deciding whether the defendant's conduct as to richard mcginnis was criminally reckless conduct with utter disregard for human life but he does not have a privilege of self-defense as to richard mcginnis. the law of self-defense allows a defendant to threaten or intentionally use force against another only if the defendant believed that the dash imminent with another person and he believes the amount of force he used or threatened to use was necessary to prevent or terminate the interference, and that his beliefs are reasonable.

the defendant may intentionally use force which is intended to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily injury to himself. the belief may be reasonable even the mistaken in determining whether there defendant's beliefs were reasonable, the stand standard is what an ordinary prudence would believe the circumstances the defendant believed were existing at the time of the alleged offense. the reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now. you should consider the evidence relating to self-defense along with all the other evidence in the case in deciding whether the defendant's conduct created on

the unreasonable risk of death or great bodily harm to richard mcginnis. if the defendant was acting lawfully in self-defense with respect to joseph rosenbaum, his conduct did not create an unreasonable risk to another. the burden is on the state to prove -- excuse me. that burden is on the state to prove beyond a reasonable doubt that the defendant did not act lawfully in self-defense. and it you must be satisfied beyond a reasonable doubt from all of the evidence in this case that the risk was unreasonable. you should consider the evidence related to self-defense and deciding whether the circumstances of the defendant's conduct showed utter disregard for human life. at the burden is on the state to prove beyond a reasonable doubt that the defendant did not act lawfully in self-defense and you must be satisfied beyond a reasonable doubt from all of the evidence in this case that if the circumstances of the

defendant's conduct showed utter disregard for human life. if, as to each of these counts, you are satisfied beyond a reasonable doubt that the elements have been proved, and that the defendant was not acting lawfully in self-defense, you should find at the defendant guilty of reckless homicide of the first degree. if you are not so satisfied then you must find the defendant not guilty. the fourth count of the information charges that at the same time and place the defendant caused the death of another human being, anthony huber, with intent to kill that person. this is a charge of intentional homicide of the first degree and you must consider first whether the defendant is guilty of that offense. if you are not satisfied that the defendant is guilty of first-degree intentional homicide, you may consider whether or not the defendant is guilty of second-degree attention homicide or first degree reckless homicide which are less serious degrees of criminal homicide.

the crimes referred to as first and second degree intentional homicide and a reckless homicide are different degrees of homicide. homicide is the taking of a life of another human being. the degree of homicide defined by law depends on the facts and circumstances of each particular case. while the law separates homicides into different types and at degrees there are certain elements which are common to each crime, both intentional and reckless homicide to require that the defendant has caused the death of another. first and second degree intentional homicide require the state to prove the additional fact that the defendant had acted with the intent to kill. first degree reckless homicide requires that the defendant acted recklessly and that the circumstances of his conduct showed utter disregard for human life. it will also be important for you to consider the privilege of self-defense in deciding which crime, if any, the defendant has

committed. the criminal code of wisconsin provides that a person is privileged to intentionally use force against another for the purpose of preventing or terminating what he reasonably believes to be an unlawful interference with his own person by the other person. however he may only intentionally use such force as he reasonably believes is necessary to prevent or terminate the interference. he may not intentionally use force unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. as applied to this case, the effect of the law of self-defense is, the defendant is not guilty of any homicide offense if the defendant reasonably believed that he was preventing or terminating an unlawful interference with his own person or reasonably believes the force used by him -- and reasonably believes the force used by him was necessary to prevent imminent

death or great bodily harm. for himself. the defendant is guilty of second degree intentional homicide if he caused the death of another human being with intent to kill, and actually believed the force used was necessary to prevent imminent death or great bodily harm to himself with the belief or the amount of force used was unreasonable. the defendant is guilty of first-degree intentional homicide if he intended to cause the death of another with the intent to kill, and did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself. the defendant is guilty of first-degree reckless homicide if the defendant caused the death of an thereby criminally reckless conduct and the circumstances of the conduct showed utter disregard for human life. you will be asked to consider the privilege of self-defense in

deciding whether the elements of first-degree reckless homicide are present. because the law provides that it is the state's burden to prove all facts necessary to constitute a crime beyond a reasonable doubt, you will not be asked to make a separate finding on whether the defendant acted in self-defense. instead, you will be asked to determine whether or the state has disestablished the necessary facts to justify a finding of guilty or first or second degree intentional homicide or first-degree reckless homicide. if the state does not satisfy you with whether those facts are to established by the evidence you will be instructed to find the defendant not guilty. the facts necessary to constitute each crime will now be defined for you in greater detail. the first degree intentional homicide is defined in the criminal code as one who causes the death of another human being with the intent to kill that person or another.

in this case, first-degree intentional homicide also requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself. before we find the defendant guilty of first-degree intentional homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. first, is the defendant caused the death of another, because meaning his acts were a substantial factor in producing the death. second, that the defendant acted with the intent to kill the other. third, the defendant did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself. the third element of the first degree section of intentional homicide it requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself. at this requires the state to

prove either that the defendant did not actually believe he was in imminent danger of death or great bodily harm, or, that the defendant did not actually believe that the force used was necessary to prevent imminent danger of death or great bodily harm to himself. when first-degree intentional homicide is considered, the reasonableness -- excuse me, when earth's degree intentional homicide is considered the reasonableness of the defendant's belief is not an issue. you are to be concerned with only with that defendant actually believed come up with are those beliefs is important only if you later consider whether the defendant is guilty of second degree intentional homicide. if after the fourth count you are satisfied beyond a reasonable doubt that the defendant caused the death of another, with the intent to

kill, this is mr. huber, with the intent to kill, and the defendant did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of first-degree intentional homicide. if you are not so satisfied then you must not find it defendant guilty of first-degree intentional home and homicide and -- as defined in the criminal code which is a lesser included offense of the first degree intentional homicide. there are hierarchies of cases in the law. typically, first-degree is the highest offense and lesser included are crimes that are of the same nature with many common elements, but some differences. so there is a sequence of words that will be submitted for this account and that's what we are

going through at this time. so we will take on now -- but let me advise you, you should make every reasonable effort to agree unanimously on the charge of intentional homicide of the first degree before considering the offense of second degree intentional homicide. however, if, after a full and complete consideration of the others you conclude that further deliberation would not result in unanimous agreement on the charge of first-degree intentional homicide, you should consider whether the defendant is guilty of second degree intentional homicide. before you may find of the defendant guilty of intentional homicide of the second degree, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements of this crime were present. first that the defendant caused the death of another. second that he acted with intent to kill another human being and third that he did not reasonably believe that he was preventing or terminating an unlawful

interference with his own person or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm to himself. you have already been instructed on the definitions of causing death and with an intent to kill. the same definitions apply to consideration of second degree intentional homicide. the third element of second degree intentional homicide requires that the defendant did not reasonably believe that he was preventing or terminating an unlawful interference with his own person or did not reasonably believe that the force that was used was necessary to prevent imminent death or great bodily harm to himself. this requires that the state approves one of the following. first, that a reasonable person in the circumstances of the defendant would not have believed that he was preventing or terminating an unlawful

interference with his own person or, that a reasonable person the circumstances of the defendant would not have believed he was in danger of imminent death or great bodily harm, or that the reasonable person in the circumstances of the defendant would not have believed that the amount of force used was necessary to prevent imminent death or great bodily harm for himself. the reasonableness of the defendant's beliefs must be determined for the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now. the standard is when a person of ordinary intelligence and prudence would have believed in the position of the defendant under the circumstances of the time of the alleged offense. if, after the fourth count you are satisfied beyond a reasonable doubt that the defendant caused the death of another human being with intent to kill and did not reasonably

believe he was preventing or terminating unlawful interference with his own person or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of second degree intentional homicide. if you are not so satisfied then you must not find the defendant guilty of second degree intentional homicide and you should consider whether the defendant is guilty of first degree reckless homicide as defined in the criminal code which is also a lesser included offense of first-degree intentional homicide. again, you should make every reasonable effort to agree unanimously on the charge of second degree intentional homicide before considering the offense up first degree reckless homicide. however if after a full and complete consideration of the evidence you conclude that further deliberation would not result in unanimous agreement on the charge of second-degree intentional homicide, you should consider whether the defendant is guilty of first degree reckless homicide.

it's a crime committed by one with other circumstances which show utter disregard for human life. for the defendant may be guilty of a reckless homicide in the first degree, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements are present. first of the defendant caused the death of another human being. because means that the defendant's act with a substantial factor in producing the death. at second that the defendant caused the death by criminally reckless conduct which means that, conduct community risk of death and the risk of death but or great bodily harm is unreasonable and substantial in the defendant was available to mike aware that his conduct created the unreasonable or substantial risk of death or great bodily harm. you should consider the elements related to self-defense in deciding whether the defendant's conduct created the unreasonable

risk to another. if the defendant was acting lawfully in self-defense, and his conduct did not create unreasonable risk to another. the burden was on the state to establish ground reasonable doubt that the defendant did not act lawfully in self-defense and you must be satisfied beyond a reasonable doubt from all the elements in this case that the risk was unreasonable. the third element is the circumstances of the defendant's conduct showed utter disregard for human life, again in determining whether the circumstances of the conduct showed utter disregard for human life. you should consider these factors. whether while he was doing it how dangerous the conduct was, the obviousness of the danger, whether the conduct showed any regard for life and others facts and circumstances related to the conduct. you should consider the evidence

related to self-defense and showed utter disregard for human life. the burden is on the state which satisfies you beyond a reasonable doubt that the defendant not act lawfully in self-defense. andy you must be satisfied beyond a reasonable doubt from all of the elements in the case of the circumstances of the defendant's conduct showed utter disregard dream in life. consider also the defendant's conduct after the desk, so consider also that defendants conduct after the death to the extent that it helps you decide whether or not the circumstances showed utter disregard for human life at the time of the death occurred. if as to the first account you are -- fourth count you are satisfied beyond a reasonable doubt that the defendant because of that the death of another human being by criminally reckless conduct, and that the circumstances of the conduct showed utter disregard for human life, and that the defendant's conduct was not privileged under the law of self-defense, then

you should find at the defendant guilty of reckless homicide of the first degree and submit. if you are not so satisfied then you must find the defendant not guilty on the fourth count. the fifth count of the information charges that come at the same time and place, the defendant attempted to cause the death of gaige grosskreutz with intent to kill that person. a crime of attempted first-degree intentional homicide. with respect to this charge you must first consider whether the defendant is guilty of that offense. if you are satisfied that the defendant of his guilty of attempted first-degree intentional homicide, you must consider whether or not he's guilty of vacant degree attempted homicide of first degree reckless endangerment, which are less serious degrees of criminal homicide. the crimes referred to as attempted first and second degree intentional homicide are different degrees of homicide. again that's taking the life of

a human being, and the degree of attempted homicide is defined by law defending on the facts and circumstances of each particular case. at while the law separates intentional homicides and to 2 degrees there are certain elements that come to each both attempted and second degree intended. both attempted first and second degree intentional homicide require that the defendant had intended to kill another, and he did ask acted toward the commission of the crime which determined unequivocal ability that -- would have caused the death of another except for the intervention of another person or some other extraneous factor. it would also be important for you to determine the privilege of self-defense in deciding which crime the defense has committed. criminal court of wisconsin provides a person's privilege to intentionally used force against another, under the following circumstances. force is used for the purpose of

preventing or terminating what the person really believes to be unlawful in interference, and he uses only that amount of force which he reasonably believes is necessary to terminate the interference and the person may not intentionally use force which is intended or likely to cause death unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. if you find that the elements of attempted first or second degree homicide have been proven in this case, the effect of the of self-defense is thus follows. the defendant is not guilty of either attempted first or second degree intentional homicide, if he reasonably believed that he wasn't preventing or terminating in unlawful interference with his own person and he reasonably

believed that the force used was necessary to prevent death or great bodily harm to himself. he's guilty of attempted second degree intentional homicide if he actually believed at the force used was necessary to prevent imminent death or great bodily harm to himself, but the belief or amount of force used was unreasonable. the defendant is guilty of attempted first-degree intentional homicide if the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to him. because the law provides that it is the state's burden to prove all the facts necessary to constitute a guilty beyond a reasonable doubt you will not be asked to give a separate finding on whether the defense acted in self-defense. instead you will be asked to determine whether the state has approved the necessary facts to justify a finding of guilty for attempted first or second degree

intentional homicide. if the state does not satisfy you that those facts are stopped by the evidence, you will be instructed to find defendant not guilty. the elements of each crime will be now be defined for you in greater detail. before you may find of the defendant guilty of attempted first-degree intentional homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt the following three elements were present. first, that the defendant intended to kill another. second, that he did demonstrate unequivocally under all the circumstances that he had formed the intense and would have caused the death of another, except for the intervention of another person or some other extraneous factor. unequivocally means that no other inference or conclusion can reasonably and fairly be drawn from the defendants acts under the circumstances. another person means anyone other than the defendant which may include the intended victim, and an extraneous factor is

something outside of the knowledge of the defendant or outside of his control. the third element is that the defendant did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself. at the third element of attempted first-degree intentional homicide requires that the defendant did not actually believe the amount of force was necessary to prevent imminent death or great bodily harm to himself. this requires a state to prove either that the defendant did not actually believe that he was in imminent danger of death or great bodily harm or that the defendant did not actually believe that the amount of force used was necessary to prevent imminent danger or death or great bodily harm to himself. when an attempted intentional first-degree homicide is considered the reasonableness of the defendant's belief is not -- defendant actually believed.

whether these beliefs are reasonable is important only if you later consider whether the defendant is guilty of attempted second degree intentional homicide. if as to the fifth count your satisfied beyond a reason without the defendant intended to kill another human being and that is asked to demonstrate unequivocably that the defendant intended to kill and would have killed the other except for the intervention of another person or some other extraneous factor, and that he did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find of the defendant of attempted first-degree intentional homicide. if you are not so satisfied then you must find the defendant not guilty of attempted first-degree intentional homicide and you must consider whether the defendant is guilty of second-degree homicide intentional and which a lesser included offense then intentional of the first degree. again you should make every

reasonable effort to agree unanimously on the charge of attempted first-degree intentional homicide before considering the offense by the second degree intentional homicide. however, if after a full and complete consideration of the elements you conclude that further deliberation would not result in the unanimous agreement on the charge of attempted first-degree intentional homicide, you should consider whether the defendant is guilty of attempted second degree intentional homicide. before you may find that the defendant guilty of second-degree intentional homicide the statements proved by evidence which satisfies you beyond a reasonable doubt that the following three ailments were present. for us to come up with the defendant intended to kill another. second that he did actually demonstrate unequivocally under all the circumstances that he had formed that intent and would've caused the death of another human being. except for the intervention of another person or another extraneous factor. the third element is that the defendant did not reasonably

believe that he was preventing or terminating in unlawful interference with his own person or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm. if you have already been instructed on definitions of intent to kill unequivocally in the same definitions apply to your consideration of second-degree intentional homicide. the third element of second-degree intentional homicide requires that the defendant, and preventing imminent death and great bodily harm for himself. this requires a state has proved any one of the following. the circumstances of the development would not have believed that he was preventing or terminating unlawful interference with his own person

or that a reasonable person in the circumstances of the defendant and the imminent death of great bodily harm. or, the reasonable person in the circumstances of the defendant would not have believed that the amount of force used was necessary to prevent imminent death or great bodily harm. we must believe from the standpoint of the defendant and not from the viewpoint of the jury now, it's a is when a person of ordinary intelligence and prudence would have believed in the position of the defendant of the circumstances existing at the time of the alleged conduct. if as to the fifth count your satisfied beyond a reasonable doubt that the infinite comic defendant intended to kill and that the events demonstrated unequivocally that the defendant would have killed another except with the intervention of another person or some other extraneous factor at work and that the

defendant did not reasonably believe that he was preventing or terminating in unlawful interference with his own person and you should find them guilty of second-degree intentional homicide. you must determine whether the defendant is guilty of the lesser included offense, recklessly endangering safety, as defined in the criminal code which is a lesser included offense of attempted first and second degree and tension. first-degree reckless recklessly endangering safety as defined in the criminal code is committed by one who recklessly endangers the safety of another human being which show utter disregard for human life. before you may find of the

defendant guilty of first-degree reckless endangerment of the state must evidence, at the following three elements are present. first is that the defendant endanger the safety of another human being and second that he did so by criminally reckless conduct which means that this conduct created a risk of death or great bodily harm to another and that the risk of death or great bodily harm is unreasonable and substantial and he was aware that this conduct created the unreasonable and substantial risk of death or great bodily harm. great bodily harm means injury which creates a substantial risk of death or which causes permanent serious disfigurement or a serious and protracted loss, and the circumstances of the defendant's conduct showed utter disregard for human life and determining whether the circumstances of the conduct showed utter disregard for human

life, you should consider these factors. what the defendant was doing, why he was doing it, how dangerous was the conduct and how obvious was the danger, whether the conduct showed any regard for life and all the facts and circumstances relating to the conduct. if you are satisfied that all three elements of this offense have been proven beyond a reasonable doubt. and that the state has proved beyond a reasonable doubt that the defendant was not acting lawfully in self-defense, then you should find the defendant guilty of reckless endangerment as submitted. if you are not so satisfied then you must find the defendant not guilty. you are not in any event from the defendant defendant guilty of more than one note of any sequence of offenses. so you can return only one verdict per account and you should consider the charged offense first, if you find unanimously that the defendant is guilty of the highest degree

of crime. that you to consider a lesser included offenses and if you decide unanimously that the defendant did not commit the greater crime. and, was acting lawfully in self-defense. i got myself into a mid sentence, i don't like it.

>> harris: i want to be very careful here because we don't want to step on them once they turn the microphone's back on in the courtroom and at that silence that you hear is because they don't want us to hear what they are saying obviously. but this will change momentarily and we don't want to miss this. i'm harris faulkner and you are watching "the faulkner focus" now. a continuing coverage inside the courtroom in kenosha, wisconsin. up to your right top box there is the defendant, 18-year-old kyle rittenhouse. you know it was less than a week ago that we heard from him testifying, i did not do anything wrong. i defended myself. on that night of august 252020,

3 people were shot by kyle rittenhouse and he said that on the stand. it was self-defense. wisconsin law does allow for deadly force when you think that you are under such threat. two of those people shot, died. one did in fact testify in this trial. so what we are doing today now that both the prosecution and defense rested, we are listening to the jury instructions from judge schroeder right now, then we anticipate that the prosecution's closing arguments will begin. they are given about an hour or two hours, then it will break for lunch and then will come back and have the defense, closing arguments, and so on and so forth. then there will be a rebuttal and this could go, we are told to anticipate until 8:00 p.m. eastern. we'll see if that microphone is coming back on as the instructions continue. >> i still have worked with the

instructions all weekend, and we discussed them by email, and then i'm reading them and little things are striking me as i read them. but the jurors are never told to discuss self-defense except in the context of charged offenses. and what i was about to say to the jury and decided i better talk to you people before and is, the jury gets into discussion of any charged offense, but yet glitzy as this one an example. and they decide that the elements are there and he wasn't acting lawfully in self-defense, they are done. they never discuss the letters. >> what if -- was not acting lawfully? >> let's say they decide elements are there but he was

known to act doing lawfully in self-defense are done. then they find him guilty of the charged crime. what if they discuss count one, or count five, i should say, and decide the elements are there but they all decide it was privileged under the law of self-defense. is there anywhere that they are being told, you're done? see under the old law, we did do that. is that in here anywhere? i used to construct these from scratch and i would tell the jury, which i was just doing now, that once you have exhausted this, you're done. as opposed to having them needlessly going through these lesser is if they have already concluded -- and this is the case where it could happen. i'm not saying it should or would, but i'm saying it could. they would decide the elements

are there and they make a decision and if all of them vote not guilty on the basis of valid self-defense, then they really should not be considering lesser included. >> so if we find perfect self-defense on the charged count, they should be told. >> yeah, i'm sorry. >> i understand where the court is coming from and i guess they consider the other ones in 30 seconds and find it to be not guilty. >> there are so complicated as it is. i feel terrible about giving this kind of stuff. it's just so -- well, anyway. you will see what the instruction is telling them that, kind of, it says if, after

a full discussion -- it says, if, after a full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of second-degree intentional homicide -- i'm

going back to a different count -- you should consider whether the defendant is guilty. so it is telling them, it is telling them -- >> yeah, i think it's just kind of unclear. >> it's very unclear. what you're saying is wrong. they all agree if the elements are meant in this privilege, you don't go any further. >> pardon me? >> i believe the pattern of instruction makes that clear enough. if they can't unanimously agree that there is privilege, then they are done. they don't have to go for the comic forward. >> it says you should make every reasonable effort to agree unanimously on the charge of second-degree intentional homicide before considering the offense of first-degree reckless homicide. however, if after a full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of second-degree homicide, you should consider

whether the defendant is guilty of first-degree reckless homicide. so, they are -- i don't think it's, it's not the way a person would speak if you wanted to make things clear. and i'm not saying anyone deliberately is trying to make things unclear but -- >> -- all 31 some pages. >> [laughs] don't do that, people will find out all your secrets. >> i think it's clear the instructions, if the court did wish to me be cleared up and say, just explain if you are unanimous either way, on the first count there's no need to go to others. >> that's a good way of doing it. i will tell them if any sequence, if lessers are submitted to them, once they discussed the highest count, if they are unanimous, either way, then they are done. does that make sense?

mr. binger has a problem with that, let's see what he -- actually, i don't like the way i said that, either.

how about this. in any count where there are multiple verdicts submitted to you, if at any point in your deliberations you are unanimous as to both the elements, presence or absence of the elements of the crime and that the presence or absence of the right of self-defense, you need to go no further. >> the reason i was shaking my head your honor is because, let's take anthony huber's accounts, for example. if the jury is unanimous that he is guilty first-degree intentional homicide, they go no further. if they are unanimous that he's not guilty of first-degree intentional homicide, than they are instructed to consider second-degree intentional homicide. >> only if they are not satisfied that it was done in

self-defense. if in your example they discuss it and say, the elements are there, then it's on the table and they say it's in self-defense then guilty. and actually if they all say, we don't think of self-defense then it's not guilty. and with the jury is being told is if we can't agree unanimously then consider these lesser is but i because as clear as it should be. >> it's as if you are not so satisfied. and i think what the court was originally proposing was telling the jury that if you are unanimous, the charge count one way or the other, then you go no further. that's not the law. >> if you are inanimate, get

unanimous on the legal question, intentional -- well, you are right because it could be an element issue. maybe the construction committee was right. >> the jury only goes to a lesser included if they are either unable to agree on the charge count or if they are unanimous not guilty on the charge count. then they go to lesser included. so there is no requirement that they be unanimous on the charge count to move to the lesser. >> no, they shouldn't be unanimous. if they are unanimous, than they are done. that's what i tried to tell them but i don't have to say it. >> that's not true because if they are unanimous on an intentional homicide, then they conclude that either the elements are meant, or the defendant actually believes that deadly force is necessary. they would still then have to consider the second-degree intentional because it changes the self-defense into the

objective, reasonable one. so they can be unanimous on count one. let's take huber for example, they can be unanimous for intentional homicide. they can be unanimous on that. and then they still have to move to the second element, or to the lesser included. >> you might be right. >> if it's perfect self-defense, as perfect self defense but -- first degree intentional homicide. >> you are right. he is right. >> they are not untold second-degree intentional homicide. the instructions are pattern instructions and i understand your point that if we had to redraft them today from scratch, maybe we could do better. i'm sure we could. but we need to follow them and i don't think mediation is

appropriate. >> i think you are right. they are certainly correct in what they say, but maybe they are not clear. maybe they are, i don't know. see how damp, much damage i have done already in my last paragraph. can you go back to what i said to the jury?

>> if you find unanimously that the defendant is guilty of the highest degree of crime, you need not consider a lesser included offenses. if you decide unanimously the defendant did not commit the greater crime and was acting lawfully in self-defense, and of then, that's when you stopped in midsentence. >> so the first part was right. did not commit the greater crime and was acting lawfully in self-defense. you know, if he was acting lawfully in self-defense, the ball game is. i think that's correct. your suggestion is seductive, but they are not asked to

consider that and that's where i'm having the problem. they even make reference to it. i think, right off the bat, was a defendant acting lawfully in self-defense? we have it interlaced in all these comments and instructions. does anyone have any objection to what i have already told the jury? >> tell them that. >> tell them what? >> what we said. if you find perfect self defense and you don't go onto the next count, it's over. >> i understand with the term perfects up defense means but we haven't put the jury what that means. we are deviating from standard

instructions on the words perfect self defense don't have a meaning the ordinary people which would require from the court and i also have a problem with the wording, if you find that the defendant is justified in self-defense because we have instructed them on his own subjective self-defense belief witches first-degree intentional homicide in the given him the instruction on what the law considers to be objective self-defense, is what a reasonable person would think. when the wording that wes just read by madame court reporter doesn't delineate between those two things, and i think as i said, and i've repeated several times, the more we deviate from the standard instructions the more confusion it causes.

they are already being told on each count that you are to consider -- the final thing is the objective of self-defense and if you find out that he's not guilty. to say across the board that defined self-defense is self-defense everything is not technically true because our different self-defense claims as to the different counts. so for example he may be justified self-defense for rosenbaum but not asked to huber. a blanket statement that says anytime you find self-defense he's not guilty is not technically true. >> it does if you are talking about an individual account. and i think what i'm going to tell them in addition to what i've already said is, if they are discussing any count, because it has multiple possible verdicts. >> i think that the standard instruction already spells it

out you're on. i agree if we did it from scratch we could do it better but i don't agree should deviate any better because of think it's causing confusion. what madame court reporter just read back, for example, could be construed as saying, any time with regard to any count you find it justified self-defense, he walks on all five counts. >> that's not what i intended to tell them at all. >> i know you don't intend to tell that both already been said is that implication and i just worry the more we deviate from these instructions the more we get into the issues. i think we should stick with what you drafted which has been sent to the parties, we've all agreed on them, and i'm leery of any additional language that hasn't been cleared by the parties and could cause further confusion. >> i can say that whenever i've dealt with lesser included, i could give a little talk about how they should