Wis JI-Criminal 1023

Crimes to Consider

The defendant in this case is charged with first degree reckless homicide, and you

must first consider whether the defendant is guilty of that offense. If you are not satisfied

that the defendant is guilty of first degree reckless homicide, you must consider whether

or not the defendant is guilty of second degree reckless homicide which is a less serious

degree of criminal homicide. If you are not satisfied that the defendant is guilty of

second degree reckless homicide, you must consider whether or not the defendant is

guilty of homicide by negligent handling of a dangerous weapon which is also a less

serious degree of criminal homicide.

The crimes referred to as first degree reckless homicide, second degree reckless

homicide, and homicide by negligent handling of a dangerous weapon are varying

degrees of homicide. Homicide is the taking of the life of another human being. The

degree of homicide defined by the law depends on the facts and circumstances of each

particular case.

Reckless Homicide

While the law separates reckless homicides into two degrees, there are certain

elements which are common to each crime. Both first and second degree reckless

homicide require that the defendant caused the death of the victim by criminally reckless

conduct. First degree reckless homicide requires the State to prove the additional fact

that the circumstances of the defendant’s conduct showed utter disregard for human life.

Homicide by negligent handling of a dangerous weapon requires that the defendant

caused the death of the victim by criminally negligent conduct in the operation or

handling of a dangerous weapon.

It is for you to decide of what degree of homicide the defendant is guilty, if guilty at

all, according to the instructions which define these offenses.

Statutory Definition of First Degree Reckless Homicide

First degree reckless homicide, as defined in § 940.02(1) of the Criminal Code of

Wisconsin, is committed by one who recklessly causes the death of another human being

under circumstances that show utter disregard for human life.

State’s Burden of Proof

Before you may find the defendant guilty of first degree reckless homicide, the State

must prove by evidence which satisfies you beyond a reasonable doubt that the following

three elements were present.

Elements of First Degree Reckless Homicide That the State Must Prove

1. The defendant caused the death of (name of victim).

“Cause” means that the defendant’s act was a substantial factor in producing

the death. 1

2. The defendant caused the death by criminally reckless conduct.

“Criminally reckless conduct” means: 2

• the conduct created a risk of death or great bodily harm to another

person; and

• the risk of death or great bodily harm was unreasonable and

substantial; and

• the defendant was aware that (his) (her) conduct created the

unreasonable and substantial risk of death or great bodily harm. 3

3. The circumstances of the defendant’s conduct showed utter disregard 4 for human

life.

In determining whether the circumstances of the conduct showed utter

disregard for human life, consider these factors: what the defendant was doing;

why the defendant was engaged in that conduct; how dangerous the conduct was;

how obvious the danger was; whether the conduct showed any regard for life; 5

and, all other facts and circumstances relating to the conduct.

ADD THE FOLLOWING IF EVIDENCE OF THE DEFENDANT’S AFTER-THE-

FACT CONDUCT HAS BEEN ADMITTED. 6

[Consider also the defendant’s 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

the death occurred.]

Jury’s Decision

If you are satisfied beyond a reasonable doubt that the defendant caused the death of

(name of victim) by criminally reckless conduct and that the circumstances of the

conduct showed utter disregard for human life, you should find the defendant guilty of

first degree reckless homicide.

If you are not so satisfied, you must not find the defendant guilty of first degree

reckless homicide, and you should consider whether the defendant is guilty of second

degree reckless homicide in violation of § 940.06 of the Criminal Code of Wisconsin,

which is a lesser included offense of first degree reckless homicide.

Make Every Reasonable Effort To Agree

You should make every reasonable effort to agree unanimously on the charge of first

degree reckless homicide before considering the offense of second degree reckless

homicide. 7 However, if after full and complete consideration of the evidence, you

conclude that further deliberation would not result in unanimous agreement on the charge

of first degree reckless homicide, you should consider whether the defendant is guilty of

second degree reckless homicide.

Statutory Definition of Second Degree Reckless Homicide

Second degree reckless homicide, as defined in § 940.06 of the Criminal Code of

Wisconsin, is committed by one who recklessly causes the death of another human being.

Difference Between First and Second Degree Reckless Homicide

The difference between first and second degree reckless homicide is that the first

degree offense requires proof of one additional element: that the circumstances of the

defendant’s conduct showed utter disregard for human life. 8

Jury’s Decision

If you are satisfied beyond a reasonable doubt that all the elements of first degree

reckless homicide were present, except the element requiring that the circumstances of

the conduct showed utter disregard for human life, you should find the defendant guilty

of second degree reckless homicide.

In other words, if you are satisfied beyond a reasonable doubt that the defendant

caused the death of (name of victim) by criminally reckless conduct, you should find the

defendant guilty of second degree reckless homicide.

If you are not so satisfied, you must not find the defendant guilty of second degree

reckless homicide, and you should consider whether the defendant is guilty of homicide

by negligent handling of a dangerous weapon in violation of § 940.08 of the Criminal

Code of Wisconsin, which is a lesser included offense of first and second degree reckless

homicide.

Make Every Reasonable Effort To Agree

You should make every reasonable effort to agree unanimously on the charge of

second degree reckless homicide before considering the offense of homicide by negligent

handling of a dangerous weapon. 9 However, if after full and complete consideration of

the evidence, you conclude that further deliberation would not result in unanimous

agreement on the charge of second degree reckless homicide, you should consider

whether the defendant is guilty of homicide by negligent handling of a dangerous

weapon.

Statutory Definition of Homicide By Negligent Handling Of A Dangerous Weapon

Homicide by negligent handling of a dangerous weapon, as defined in § 940.08 of the

Criminal Code of Wisconsin, is committed by one who causes the death of another

human being by the negligent operation or handling of a dangerous weapon.

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following three elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant operated or handled a dangerous weapon.

2. The defendant operated or handled a dangerous weapon in a manner constituting

criminal negligence.

3. The defendant’s operation or handling of a dangerous weapon in a manner

constituting criminal negligence caused the death of (name of victim).

“Cause” means that the defendant’s act was a substantial factor in producing

the death. 10

Meaning of “Dangerous Weapon”

“Dangerous weapon” means 11

[any firearm, whether loaded or unloaded. A firearm is a weapon that acts by force

of gunpowder.]

[any device designed as a weapon and capable of producing death or great bodily

harm. “Great bodily harm” means serious bodily injury. 12]

[any device or instrumentality which, in the manner it is used or intended to be used,

is likely to produce death or great bodily harm. 13 “Great bodily harm” means serious

bodily injury. 14]

[any electric weapon. An electric weapon is a device designed or used to immobilize

or incapacitate a person by the use of electric current.]

Meaning of “Criminal Negligence”

“Criminal negligence” means: 15

• the defendant’s operation or handling of a dangerous weapon created a risk

of death or great bodily harm; and

• the risk of death or great bodily harm was unreasonable and substantial; and

• the defendant should have been aware that (his) (her) operation or handling

of a dangerous weapon created the unreasonable and substantial risk of death

or great bodily harm.

IF REFERENCE TO ORDINARY NEGLIGENCE IS BELIEVED TO

BE HELPFUL OR NECESSARY SEE WIS JI-CRIMINAL 925. 16

The Difference Between Criminal Recklessness and Criminal Negligence

Criminal recklessness and criminal negligence both require conduct that creates an

unreasonable and substantial risk of death or great bodily harm. Criminal recklessness

requires that the person engaging in that conduct be aware of that risk, while criminal

negligence requires that the person engaging in that conduct should have been aware of

that risk.

Jury’s Decision

If you are satisfied beyond a reasonable doubt that the defendant caused the death of

(name of victim) by criminal negligence in the operation or handling of a dangerous

weapon, you should find the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.

You are not, in any event, to find the defendant guilty of more than one offense.