MURDER IN THE FIRST DEGREE – WITNESS IN A CRIMINAL

MURDER IN THE FIRST DEGREE – WITNESS IN A CRIMINAL PROSECUTION: H.R.S. § 707-701(c) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Murder in the First Degree. A person commits the offense of Murder in the First Degree if he/she intentionally or knowingly causes the death of a witness in a criminal prosecution. There are three material elements of the offense of Murder in the First Degree, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant caused the death of a witness in a criminal prosecution;* and 2. That the Defendant did so intentionally or knowingly; and 3. That the Defendant knew, at that time, that the decedent was a witness in a criminal prosecution. Notes H.R.S. §§ 707-701(c), 702-206(1) and (2). For definition of states of mind, see instructions: *The statute, and therefore the instruction, do not state or require that the Defendant cause the death because the decedent is a witness in a criminal prosecution. However, this nexus appears to underlie the elevation of the conduct to Murder in the First Degree. If the court deems it appropriate the following language may be inserted into the first element of the instruction: "person because the person was a" before the word "witness". Cf. State v. Pinero, 75 Haw. 282, 859 P.2d 1369 (1993) (murder of a police officer requires proof that the accused engaged in the death causing conduct because of the officer's performance of official duties).