Haw. Pattern Jury Instr. (Criminal) 7.11

The defendant has raised the affirmative defense of “choice

of evils.” Before you may consider “choice of evils,” you must

first determine whether the prosecution has proven all of the

elements of escape beyond a reasonable doubt. If you

unanimously find that the prosecution has not proven all of the

elements of escape beyond a reasonable doubt, then you must find

the defendant not guilty of escape without considering “choice

of evils.” If you unanimously find that the prosecution has

proven all of the elements of escape beyond a reasonable doubt,

then you must consider “choice of evils.” “Choice of evils” is

an affirmative defense to the charge of escape.

“Choice of evils” has five elements.

These five elements are:

1. The defendant received a threat, express or implied,

of death, substantial bodily injury, or forcible

sexual attack and the threatened harm was imminent;

2. A complaint to the proper prison authorities was

either impossible under the circumstances or there

exists a history of futile complaints;

3. Under the circumstances, there was no time or

opportunity to resort to the courts;

4. No force or violence was used against prison personnel

or other innocent persons; and

5. The defendant promptly reported to the proper

authorities when the defendant had attained a position

of safety from the immediate threat.

The defendant must prove an affirmative defense by a

preponderance of the evidence. This means that the defendant

must prove that it is more likely than not, or more probable

than not, that each element of “choice of evils” occurred. In

determining whether the defendant has proven “choice of evils”

by a preponderance of the evidence, you must consider all of the

evidence that has been presented to you regardless of who

presented it.

If you unanimously find that the defendant has proven the

five elements of the “choice of evils” defense by a

preponderance of the evidence, then you must find the defendant

not guilty of escape. If you unanimously find that the

defendant has not proven the five elements of “choice of evils”

by a preponderance of the evidence, then you must find the

defendant guilty of escape.*

If you are unable to reach a unanimous agreement as to

whether “choice of evils” has been proved or not been proved,

then a verdict may not be returned on escape.

*Modification of this sentence is required if any defense in

addition to “choice of evils” is submitted to the jury.