The defendant has raised the affirmative defense of (specify the affirmative defense). Before you may consider

The defendant has raised the affirmative defense of (specify the affirmative defense). Before you may consider (specify the affirmative defense), you must first determine whether the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt. If you unanimously find that the prosecution has not proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must find the defendant not guilty of that offense(s) without considering the affirmative defense. If you unanimously find that the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must consider the affirmative defense of (specify the affirmative defense). (Specify the affirmative defense) is an affirmative defense to the charge(s) of (specify in the disjunctive charge(s) and any instructed included offense(s)). (Provide a general statement of the affirmative defense). (Specify the affirmative defense) has (specify number) elements. These (specify number) elements are: (particularize the affirmative defense into its elements). 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 (specify the affirmative defense) occurred. In determining whether the defendant has proven an affirmative defense 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 elements of the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of (specify in the disjunctive charge(s) and any instructed included offense(s)). If you unanimously find that the defendant has not proven the elements of the affirmative defense by a preponderance of the evidence, then you must find the defendant guilty of (specify charge(s) or any instructed offense(s)).* If you are unable to reach a unanimous agreement as to whether the affirmative defense has been proved or not been proved, then a verdict may not be returned on (specify in the disjunctive charge(s) and any instructed included offense(s)). * Modification of this sentence is required if any defense in addition to the affirmative defense is submitted to the jury. Commentary While HRS § 702-205 provides that the prosecution must negative ordinary defenses "beyond a reasonable doubt," HRS § 701- 115(2)(b) provides that "[i]f the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability." See State v. Anderson, 58 Haw. 479, 484, 572 P.2d 159, 162 (1977) ("[t]he legislature clearly intended to provide for affirmative defenses by enacting Section 701-115, and we do not construe Section 702-205 in a manner that would nullify the provisions of Section 701-115"). HRS § 701-115(3) provides that "[a] defense is an affirmative defense if (a) [i]t is specifically so designated by the Code or another statute; or (b) [i]f the Code or another statute plainly requires the defendant to prove the defense by a preponderance of the evidence." Affirmative defenses "specifically so designated" include duress (HRS § 702-231), insanity (HRS § 704-402), entrapment (HRS § 702-237), military orders (HRS § 702-232), choice of evils -- escape (HRS § 703-302) and mistake of law (HRS § 702- 220). The alibi defense, i.e., evidence that the defendant was not present at the time of the crime, is not an affirmative defense. State v. Gabrillo, 10 Haw.App. 448, 877 P.2d 891 (1994). The constitutionality of affirmative defenses was upheld in State v. Kelsey, 58 Haw. 234, 566 P.2d 1370 (1977) ("there is no constitutional due process violation"); see also Anderson, 58 Haw. at 482, 572 P.2d at 161 ("does not in any way lessen the requisite number of the elements to be proven by the state or the degree of the quantum of proof"). The form of the generic affirmative defense instruction is derived from State v. Miyashiro, 90 Hawai’i 489, 979 P.2d 85 (1999).