Conn. Crim. Jury Instr. 2.2-8

The defendant claims that (his/her) prosecution for <identify applicable charge(s)> is barred by

the first amendment of the United States constitution because it is based solely on (his/her)

speech. The state contends that the defendant’s speech is not protected by the first amendment

because it constituted a “true threat.” When a person’s speech is a true threat, it is not entitled to

first amendment protection. The state has the burden of proving beyond a reasonable doubt that

the defendant’s speech constituted a true threat and that the defendant was aware of the

threatening nature of (his/her) words but nonetheless delivered them.

True Threat

A true threat is a serious expression conveying that a speaker means to commit an act of

unlawful violence. Statements that seek to communicate a belief or an idea, such as political

hyperbole or a mere joke, are not true threats and are protected by the first amendment.

2 True

threats, on the other hand, encompass those statements where the speaker means to

communicate, to one or more individuals, a serious expression of an intent to commit an act of

unlawful violence. The speaker need not actually intend to carry out the threat.

3 In fact, the

existence of a true threat depends not on the mental state of the speaker but on what the

statement conveys to the other person(s).4

In assessing whether the defendant’s statements were a true threat, you must determine whether

the statements would readily be interpreted by a reasonable listener, familiar with the

accompanying circumstances, as a serious expression of intent to commit an unlawful act of

violence. You should consider the actual language used by the defendant as well as the entire

factual context of the alleged threat, including the parties’ prior relationship, the surrounding

events, the defendant’s contemporaneous actions and the reaction of the listener(s).

[<Include as appropriate:> The threatened violence need not be imminent or unconditional for

the statements to constitute a true threat. Furthermore, to constitute a true threat, the statement

does not require language that is explicitly threatening. What matters is whether the alleged

threat conveyed a gravity of purpose and likelihood of execution.

6]

Mens Rea

Next, the state must show that the defendant had some subjective understanding of the

threatening nature of (his/her) statements. It must prove beyond a reasonable doubt that the

defendant was aware that others could regard (his/her) statements as threats of violence but

nonetheless delivered them anyway. Thus, you must consider the defendant’s subjective state of

mind at the time (he/she) made the statements. You may not find that the statements were a true

threat unless you determine that the defendant was aware of and consciously disregarded a

substantial and unjustifiable risk that <identify addressee(s)> could interpret them as a serious

expression of an intent to commit an unlawful act of violence.

If, after considering the defendant’s statements and all of the surrounding circumstances in which

they were spoken, you conclude that the state has proven beyond a reasonable doubt that a

reasonable person in the position of <identify addressee(s)> readily would interpret the

statements as a serious expression of an intent to commit an unlawful act of violence, and not as

mere puffery, bluster, jest or hyperbole, and further, that the defendant was aware of and

consciously disregarded a substantial and unjustifiable risk that (his/her) statements could be

interpreted in this manner, then the statements are true threats that are not protected by the first

amendment.

If the statements are true threats and you unanimously find that the state has proved beyond a

reasonable doubt each of the elements of <identify applicable charge(s)>, then you shall find the

defendant guilty of (that/those) charge(s). On the other hand, if you unanimously find that the

state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the

defendant not guilty.

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1 State v. Krijger, 313 Conn. 434, 448 (2014) (“the state was required to prove beyond a

reasonable doubt that [the defendant’s] statements represented a true threat”).

2 The qualifier “true” distinguishes what is at issue from jests, hyperbole, or other statements that

when taken in context do not convey a real possibility that violence will follow (e.g., “I am going

to kill you for showing up late”). See Watts v. United States, 394 U.S. 705, 708 (1969).

3 Virginia v. Black, 538 U.S. 343, 359-60 (2003); State v. Taveras, 342 Conn. 563, 571-72

(2022); State v. Pelella, 327 Conn. 1, 10 (2017).

4 Counterman v. Colorado, 600 U.S. 66, 74 (2023).

5 State v. Taveras, 342 Conn. 562, 572 (2022); State v. Taupier, supra, 330 Conn. 190; State v.

Baccala, 326 Conn. 232, 246, cert. denied, 583 U.S. 1026 (2017); State v. Krijger, supra, 313

Conn. 450, 453-54. “When . . . a statement is susceptible of varying interpretations, at least one

of which is nonthreatening, the proper standard to apply is whether an objective listener would

readily interpret the statement as a real or true threat.” (Internal quotation marks omitted.) State

v. Taveras, supra, 572. Thus, the state is “required to present evidence demonstrating that a

reasonable listener, familiar with the entire factual context of the defendant’s statements, would

be highly likely to interpret them as communicating a genuine threat of violence rather than

protected expression, however offensive or repugnant.” (Emphasis in original; internal quotation

marks omitted.) Id.

6 State v. Pelella, supra, 327 Conn. 11-17; see also State v. Taveras, supra, 342 Conn. 576

(“Although the phrase ‘you better watch your back’ can, in some contexts, be used to sincerely

caution an addressee of an impending threat from some external source, it can also be used as a

veiled or conditional threat of violence.”); State v. Krijger, supra, 313 Conn. 453 (2014) (“the

absence of explicitly threatening language does not preclude the finding of a threat” [internal

quotation marks omitted]); State v. DeLoreto, 265 Conn. 145, 158-59 (2003) (defendant’s

statement to armed, on-duty police officer that he was going to “kick [officer’s] ass” was true

threat; circumstances “[did] not lessen the impact of the threat; it just made it more difficult for

the defendant to carry out his threat immediately”).

7 Counterman v. Colorado, supra, 600 U.S. 79. At a minimum, the defendant must have acted

recklessly in making the statements. Id., 78-82.