Rust and Related Lawsuits

[Frater I*I]

What kind of dumbass doesn't know in this day and age that jailhouse calls a recorded and can come back to haunt you....

[raison de arizona]

[zekeb]

It's too bad the clueless don't always have someone telling them what is and what is not a good idea.

[Tiredretiredlawyer]

Her Attorney's paralegal told her during a call that these calls were recorded. Hannah seems way to self a absorbed to understand how the real world works.

[andersweinstein]

For anyone interested, NM courts created a "high profile cases" page, which has docket items for cases stemming from the Rust shooting (the only "high profile" cases so far):
https://nmcourts.gov/news/high-profile-cases/

There are now multiple motions to dismiss from Team Baldwin: one based on Grand Jury improprieties and prosecutorial misconduct; one based on destruction of evidence (the gun), and one -- which I find a philosophically interesting -- based on failure to allege an offense at all under NM law due to lack of any evidence of the requisite mens rea for involuntary manslaughter. The last requires criminal negligence = subjective awareness of creating a risk to others, per NM case law. Beyond facts in the indictment, the last also ppeals to commitments made by the state in the Guitierrez trial.

There is a hearing set for May 17, I believe to deal with the first motion to dismiss, which is fully briefed. Other motions are more recent, state's responses have not yet appeared as I post.

A little amused by the level of back and forth sniping that leads to DEFENDANT ALEC BALDWINS' MOTION TO STRIKE THE STATE'S REPLY TO THE DEFENDANTS' RESPONSE TO THE STATE'S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS THE INDICTMENT.

[RVInit]

The hearing for dismissal took place last week, it took a little over 2 hours. The judge said she will issue a ruling "next week", which would be this week, as I'm posting this on the Monday following the week of the hearing. I listened to most of this, it was interesting. I kind of doubt it will be dismissed, but the judge did have some questions for the prosecutor. One of the more interesting items of complaint has to do with the prosecutor paying one of their witnesses to appear on the Sean Hannity show and bash Baldwin. That seems a little sketchy to me. The prosecutor didn't even attempt to claim she did not do this, unless I missed that part. I probably missed about 10 minutes of the prosecution part of it and I haven't gone back to try to locate the exact time I missed so I can catch up. So, I guess it's possible she did address this. Another interesting thing is that she elicited certain testimony from a witness during the grand jury and used that to indict Baldwin, but then same witness testified different on same question during Hanna's trial.

This prosecutor has several narratives that just aren't true. For instance she is constantly drumming the refrain that Baldwin was in charge of everything and everybody and the proof of that is that in between two takes he was expressing irritation at the armorer for not having his second gun already loaded and ready to go for the second take. Well, I've seen coworkers complain to and about other coworkers during times of high stress, but those who were complaining were not "in charge" or supervising in any way. People will be people, and when stressed lots of people vocalize and it doesn't mean they are "in charge of everything". Of course reading the comments (bad idea) of people who are watching the trial shows they just automatically agree with that. I don't participate in comment sections on YouTube, or should say very rarely do I particpate in any comment section of YouTube, but sometimes read them out of curiosity to see what people are thinking (more often not actually thinking).

[andersweinstein]

The hearing for dismissal took place last week, it took a little over 2 hours. The judge said she will issue a ruling "next week", which would be this week, as I'm posting this on the Monday following the week of the hearing.

Motion to dismiss based on grand jury improprieties denied. The promised Ruling went up at end of the week, Friday at 4 PM.
The court did not find bad faith from prosecutors, which NM case law apparently requires for certain sorts of review of pre-indictment proceedings. Other arguments rejected on other grounds.

Baldwin still has two other motions to dismiss pending, which now have gotten responses by the State. One is based on destruction of the evidence (the gun). The second based on failure to allege a criminal offense (arguing no evidence Baldwin had reason to be aware of risk of live round in gun given alleged facts plus State commitments from Gutierrez trial, e.g. that armorer has sole responsibility for safety).

[andersweinstein]

If interested, full motion day June 21. The use immunity item concerns prosecution's attempt to compel Hannah Gutierrez to testify. She would otherwise assert her fifth amendment privilege in light of her pending appeal. One report here.

[andersweinstein]

State wants to use evidence of other acts of Baldwin on the set showing pattern of recklessness with firearms. State Motion argues this to be admissable as intrinsic evidence essential to the context of crime charged, or in the alternative, other acts evidence that is more probative than prejudicial.

[Maybenaut]

State wants to use evidence of other acts of Baldwin on the set showing pattern of recklessness with firearms. State Motion argues this to be admissable as intrinsic evidence essential to the context of crime charged, or in the alternative, other acts evidence that is offered to prove absence of accident or mistake and is more probative than prejudicial.

FIFY

[RTH10260]

What other "acts on stage" are they thinking of? Wouldn't they also have to show that those acts were bad in light of "industry standards" of behavior on the stage / plot/ set ? What "standards" would they find?

[sugar magnolia]

Did the Hannah woman offer any evidence of Baldwin being careless or reckless with the weapons used? Wouldn't that have been something they would have brought up as a defense for her? "well I fucked up and put live rounds in it, be he was fucking around like he always does."

[p0rtia]

I hate this case.

[andersweinstein]

What other "acts on stage" are they thinking of? Wouldn't they also have to show that those acts were bad in light of "industry standards" of behavior on the stage / plot/ set ? What "standards" would they find?

I believe the industry standards are not necessarily relevant, because industry standards have no backing in law. Industry standards might license actions the law deems reckless. The state has argued explicitly that Baldwin violated NM law regardless of whether he violated industry standards.

But in fact, it does seem Baldwin did violate industry standards he presumably knew about. In this way the standards can hurt him, but not really help him. It's true that industry standards don't put a duty on him to verify the load. But everyone involved with firearms has a role to play in ensuring gun safety on the set, and SAG guidelines do contain the standard items: never point a gun at anyone, treat all guns as if they were loaded, never put your finger on the trigger until you are ready to shoot, all things he apparently violated.

ETA: the behavior listed in the filing:

► Show Spoiler

1) used his gun as a pointer directing crew members; 2) discharged
the revolver after the filming was over and “cut” was called, in violation of rules governing the
safe handling of firearms on set; 3) the defendant shot several scenes wherein he placed his finger
on the trigger of the revolver where the scene did not require any shooting of the firearm; 4) rushed
the armorer to reload and crew members to work at a faster pace; 5) was inattentive during the
firearms training conducted by Ms. Gutierrez and was distracted by texting/face timing family
members and making videos for his family’s enjoyment (the evidence to support this is witness
testimony and the video evidence in the last bulleted paragraph below); 6) engaged in horseplay
with the revolver while making videos during his firearms training while using pull load blanks; 7)
displayed erratic and aggressive behavior during the filming of Rust that created potential safety
concerns; 8) displayed reckless behavior as it related to the use of a firearm, such as pointing it and
firing a blank round at a crew member while using that crew member as a line of site as his
perceived target; and 9) after October 21, 2021 was insistent that he not be required to follow
safety recommendations made by film set safety experts on the continuation of the filming of Rust
in Montana.

[andersweinstein]

Did the Hannah woman offer any evidence of Baldwin being careless or reckless with the weapons used? Wouldn't that have been something they would have brought up as a defense for her? "well I fucked up and put live rounds in it, be he was fucking around like he always does."

She did not testify in her trial. But the state is trying to compel Gutierrez to testify at Baldwin's by giving her use immunity (defense opposes, it will be argued Friday). One item I know she might testify to is that Baldwin "was inattentive during the firearms training conducted by Ms. Gutierrez and was distracted by texting/face timing family members and making videos for his family’s enjoyment". And there was also video evidence introduced at her trial of Baldwin rushing people on the set.

The state's theory is that both were criminally negligent and both at fault.

[andersweinstein]

I find the issue of mens rea in this case philosophically interesting. As this Eugene Volokh post explains, NM case law is clear that conviction for involuntary manslaughter requires a finding of criminal negligence. And many, perhaps most, definitions of criminal negligence involve objective standards, such as New York State's's: "failure to perceive a substantial and unjustifiable risk ... that constitutes a gross deviation from the standard of care that a reasonable person would observe." But NM case law says criminal negligence requires subjective knowledge of the risk posed to others, so is essentially the same as recklessness (see Volokh piece for cites).

Volokh suggests this requirement poses a serious hurdle for the prosecution:

It wouldn't be enough to show that Baldwin was careless, negligent, lacked due caution in the ordinary sense of the word—or even that he was acting extremely foolishly in not recognizing the risk of pointing a gun at someone without personally checking that it was unloaded. It wouldn't be enough to show that any reasonable gun owner would have performed such a personal check, rather than relying on the assumption that the armorer would have done it.

The prosecution would have to prove, beyond a reasonable doubt, that he was subjectively aware of the danger: that he actually thought about the possibility that the gun might be loaded, and proceeded to point it and pull the trigger despite that.

This corresponds to my provisional model of Baldwin's mental state: focused on his task, acting habitually as he had in all past situtations when given a "cold gun", thus plausibly completely oblivious to the idea he was creating any risk, so lacking the reckless mens rea required (in NM, though not elsewhere) for this charge.

But it seems to me that a couple of things make it really hard to mount a successful defense along these lines. First, here are the portions of the NM Uniform Jury Instructions that supposedly embody this essential element:

2.  __________ (name of defendant) should have known of the danger involved by __________’s (name of defendant) actions;

3.  __________ (name of defendant) acted with a willful disregard for the safety of others;

I think point 2, that defendant should have known of danger, strongly focuses the jury's attention on an objective standard. (And what is it even doing there if subjective awareness is required?) The requirement of subjective awareness is captured only in 3, the "willful disregard for the safety of others".

But it seems to me that phrase hardly gives a jury a vivid sense of the requirement as Volokh characterizes it, so that they might agree he was oblivious and easily acquit on those grounds. "Willful" just means intentional, and "disregard for safety of others" can mean something more objective, failure to follow safety guidelines he knew about. But that is not the same as awareness one is creating risk! One might sincerely believe the guidelines are excessive and unnecessary in the circumtances, for example. Yet these instructions are explicitly blessed in some of the NM case law.

It looks to me like everything about this process is steering towards applying a more objective standard. Judge Sommer denied a pre-trial motion to dismiss, predictably, because there were still fact questions for the jury about Baldwin's mental state. But in doing so she said it seeemed to her the core of the offense was 2, that he should have known of the danger.

In the armorer trial, the same judge lambasted Gutierrez for being reckless. But it is very far from clear to me there was strong evidence Guttierez met the requirement of subjective awareness of creating substantial risk either (in Volokh's sense: thought about risk she was creating and did it anyway). In an interview, juror said she was responsible for safety and didn't do her job, end of story.

But if a jury convicts by applying an objective, "should have known" standard, there will be no way to review it because an appellate court doesn't see jury's reasoning and can't rule out that a jury made a circumstantial inference from the trial evidence to the required reckless state of mind. (Unless facts about mental state of defendant were stipulated, but that seems far-fetched.)

Because of this, I tend to think Baldwin's goose is cooked, though it ought not to be according to NM law. On an objective standard he doesn't seem to have much of a defense. He violated gun safety rules and someone died as a result. Just like Gutierrez, he didn't do his part in ensuring safety on the set.

[andersweinstein]

Another problem for this lack of mens rea defense is that it looks to me like the mens rea requirement simply isn't applied in practice in the way Volokh interprets it. Think about it: If you took it seriously that way, then shouldn't "I was sure the gun was unloaded" always be sufficient defense, end of story, even for incredibly stupid things like pointing a gun at someone and pulling the trigger as a joke? Because to say such a person did not have good enough grounds for their certainty would be to apply an objective standard of what care a reasonable person would take. Subjectively, they were oblivious to creating a risk. Thoughtless, stupid, grossly negligent, whatever. Those should all be ordinary negligence, not criminal negligence in NM if this requirement is taken seriously that way.

Yet Baldwin's crtics point out that this not-unheard-of fact pattern is standardly involuntary manslaughter. Admittedly in states other than NM, but there are a couple of cases like that in NM too (though they perhaps precede NM court's clarification of the mens rea requirement for this offense). Intuitively just doesn't look to me like this is getting treated as a defense that is going to fly.

The counter argument I've encountered is this: Any normal adult knows that guns are dangerous weapons. If such a person was aware they were holding a real gun, then it can simply never be plausible to say they didn't know they were creating a risk with an action like pointing it and pulling the trigger. Defendant had to have known that guns are dangerous in this way. No further evidence is required to meet the mens rea requirement.

I think this argument involves a bit of a fudge on what it means to have "subjective knowledge". Because you can have a set of propositions in your background knowledge that collectively entail some consequence p, but not be aware of the conclusion p until someone brings it to your attention, perhaps by Socratic questioning to elicit it, or by showing you a proof, or other means. So Baldwin had background knowledge that he's holding a real gun that's capable of firing a bullet, that dummies look identical to real rounds, that it's possible the inexperienced-looking armorer allowed real ammo to be conmingled with the dumies, that he didn't observe the gun being loaded himself. All this background maybe entails the conclusion that there is some risk if he causes the gun to be pointed at someone with finger on trigger and cocks hammer. So in SOME sense, he knows this (it's implicit in his background knowledge). But that in no way entails that he made an evil choice to do something he was consciously aware was putting people at risk. The conclusion p might not have ever bubbled up into his awareness. Again, this kind of argument seems to lead only to "he ought to have been aware" he was creating a risk.

But that seems to be all that the law in practice is requiring here. I think most people are happy with the policy of promoting compliance with safety rules by applying a kind of strict liability for any violations of them, regardless of whether the defendant explicitly thought about and ignored the risk as Volokh had it. I almost think the NM courts are a bit dishonest on this, officially maintaining the pretense that they have a subjective mens rea requirement for this offense, but in fact allowing objective standards to be used because people are happy with that policy.

[andersweinstein]

Also: trial scheduled to start this coming Tuesday July 9. Monday is scheduled to deal with lots of remaining motions in limine. Docket available here:https://nmcourts.gov/news/high-profile-cases/

Among the paper is an order to transport Gutierrez to the trial, even though the state's motion to grant her use immunity was denied.

[Maybenaut]

It’s not either/or; the state has to prove both.

If the state fails to prove that he “should have known” of the danger, it’s game over for the state. The jury would only get to willful disregard if the objective standard is met.

[andersweinstein]

It’s not either/or; the state has to prove both.

If the state fails to prove that he “should have known” of the danger, it’s game over for the state. The jury would only get to willful disregard if the objective standard is met.

OK, that answers my question as to why 2 is in the instructions. And I suppose the defense can argue there is no reason he should have known of any danger because he relied on the armorer whose job it was to ensure safety and in particular keep live rounds from ever getting near the set (roughly the argument in their motion to dismiss).

My bigger concern is that it seems too easy for the jury to wind up convicting on a should-have-known standard (because the phrase "willful disregard" is not clear enough about what is required according to the more vivid verbiage in the case law.)

[andersweinstein]

Defense submited proposed jury instructions that address the issue I mentioned, citing case law mentioning the possibility of conviction on a standard for civil rather than criminal negligence and other related issues:
https://nmcourts.gov/wp-content/uploads ... -1201a.pdf
Excerpts:

For you to find the defendant guilty of Involuntary Manslaughter (Without Due Caution or Circumspection) as charged in Count I in the alternative, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. Alec Baldwin, through a purposeful and volitional act, fired a gun at another person while rehearsing a scene during the production of a movie.
2. Alec Baldwin should have known of the danger involved from his actions. To find that Alec Baldwin should have known of the danger, you must find that he had subjective knowledge of the danger or risk to others posed by his actions.
3. Alec Baldwin acted with a willful disregard for the safety of others. To find that Alec Baldwin acted with willful disregard, you must find that his conduct was more than merely negligent or careless. Rather, you must find that he consciously disregarded a substantial and unjustifiable risk of harm to others. A substantial and unjustifiable risk is one that any lawabiding person would recognize under similar circumstances and that would cause any lawabiding person to behave differently than Alec Baldwin out of concern for the safety of others. Further, to find that that Alec Baldwin acted with willful disregard, you must find that he was subjectively aware of the risk caused by his conduct and continued to act.

For you to find that the defendant should have known of the danger involved from his actions as required for the second element of Involuntary Manslaughter, you must find that the State has proved to your satisfaction beyond a reasonable doubt that the defendant had subjective knowledge of the danger or risk to others posed by his actions.

Note they also spell out the requirement for an intentional, volitional act. I think this pertains to the disputed question of whether he pulled the trigger. I was not sure the offense requires intentionally pulling the trigger: couldn't it be criminal negligence to fumble a gun while not taking care to keep it pointed in a safe direction? The question is only whether one intentionally handled a gun in any way that created a risk to others.

I suppose it's normal negotiating procedure to ask for more than one expects to get, but it does look to my eyes like defense is asking rather a lot, e.g. this one, which I would have thought overly specific and not supported by the law. (Defense view is that this is the only way the gun could have presented a substantial risk, the risk of having been loaded with real ammo. At hearing prosecution argued there were other risks than gun containing real ammo, e.g the accident that killed Brandon Lee came from blank rounds + barrel obstruction.)

An issue in this case is whether the defendant believed he was handed a “cold gun” that contained no live ammunition, which had been verified by the armorer and/or the head of safety, such that the gun was unlikely to cause lethal harm. Another issue in this case is whether the defendant believed there was not a substantial risk that there could be live ammunition in the gun. The burden is on the State to prove beyond a reasonable doubt that the defendant did not have an honest and reasonable belief in the existence of either of those facts at the time of the alleged conduct. If you have a reasonable doubt as to whether the defendant’s alleged conduct resulted from a reasonable belief in either of those facts, you must find the defendant not guilty.

Very interested in how this will come out. The requirement of subjective knowledge of risk is well supported by case law -- instructions are just quoting from the decisions -- so one would think it should be unobjectionable to include more explicit verbiage on that, but it does require adding to the Uniform Jury Instructions for the charge.

[andersweinstein]

Other case news:
Judge disallowed arguments on Baldwin's role as producer:

Judge Sommer decided that jurors will not hear evidence about Baldwin’s dual role as producer of the film. She ruled that it would be too prejudicial to say Baldwin “was the boss” considering his contract stated he couldn’t make decisions, such as hiring someone, without getting approval first. “The probative value is not substantially outweighed by unfair prejudice and certainly confusion of issues to the jury. So I’m denying evidence of his status as a producer,” Judge Sommer ruled.

Judge disallowed some other acts evidence (e.g. Baldwin screaming and hurrying crew), but allowed evidence of him handling that gun.

She decided prosecutors will be allowed to play videos showing Baldwin using his replica revolver during filming at New Mexico’s Bonanza Creek Ranch leading up to the deadly shooting because they are “relevant” to the disputed questions of whether the gun was functioning properly and whether Baldwin was “handling the firearm safely.” She said the “probative value is substantially outweighed by unfair prejudice.”

“They’re showing that [the gun] did work because he’s shooting. Videos that show that he’s cocking the gun when he doesn’t need to cock the gun, goes to that, negligent use of a deadly weapon,” the judge ruled. But in siding with Baldwin’s defense, the judge said videos showing Baldwin swearing and rushing reloads will be off limits at trial. “Everything else regarding him yelling at the crew or telling people to hurry up, none of that is relevant, and that is propensity evidence,” Judge Sommer said.

https://www.rollingstone.com/tv-movies/ ... 235054800/

Jury + 4 alternates of 11 women, 5 men seated. In the initial pool of 70, there were only 3 who said they hadn't seen any news about the case.

Opening statements Wednesday Jul 10.

[Maybenaut]

I don’t know how the judge is going to rule on the proposed jury instruction, but it appears to me that they’ve conflated the objective and subjective elements. And it will likely appear that way to the judge. They’re saying, in essence, that the only way the jury can find that he should have known is if they also find that he did know.

The pattern jury instruction requires them to find beyond a reasonable doubt that a reasonable person would have known of the danger. That, by the way, is an off-ramp for the defense and it’s surprising to me that they’re not taking it.

And the pattern instruction requires them to find beyond a reasonable doubt that he did know.

I don’t know where you’re getting confusing criminal and legal standards of proof. The jury will be instructed as nauseum that every element of every offense must be proved beyond a reasonable doubt.

[andersweinstein]

I don’t know where you’re getting confusing criminal and legal standards of proof. The jury will be instructed as nauseum that every element of every offense must be proved beyond a reasonable doubt.

The idea is that the pattern jury instructions as is leave it too easy for a jury to focus on the objective element alone because the meaning of the brief statement "willful disregard for the safety of others" is not elaborated and the other element (and prosecution argument) can lead them to focus on "should have known". Personally, I would think a jury could fully accept that he had zero awareness of the risk and STILL decide he acted in "willful disregard of the safety of others". Say because they view him as arrogantly believing safety rules didn't apply to him, so "willfully" failed to follow them.

But in any case from the defense's argument (in spoiler box because of length):

► Show Spoiler

As the Court is aware, much of the State’s case will turn on whether it can prove that Mr. Baldwin had the requisite knowledge
to establish criminal—not civil—negligence. The State pays lip service to the New Mexico
Supreme Court’s requirement that “[t]o be convicted of involuntary manslaughter, a defendant
must have been aware of the risk caused by his or her conduct.”...
However, in articulating its theory of the case, the State consistently falls back on the argument
that under the jury instructions, it simply must show that Mr. Baldwin “should have known” of the
danger—not that he was in fact aware or had the “subjective knowledge” required by Henley. See,
e.g., May 21, 2024 State’s Response to Defendant’s Motion to Dismiss the Indictment for Failure
to Allege a Criminal Offense at 3 (arguing that Mr. Baldwin’s motion “assumes that Ms. Gutierrez
was a qualified armorer who adhered to industry standard safety protocols,” but that “Mr. Baldwin
knew or should have known that Ms. Gutierrez was not to be entirely trusted”); see also id. at
13-14. The State appears poised to argue to the jury that Mr. Baldwin was criminally negligent
because he should have known that he could not rely on Ms. Gutierrez (or Mr. Halls) based on
evidence of other crew members’ descriptions of concerns about Ms. Gutierrez arising from
incidents there is no indication Mr. Baldwin was present for, was told about, or knew about at all.
This is a far cry from the awareness and subjective knowledge required by New Mexico law.

Both the State and the Court understand that these requirements articulated in Henley are intended
to be incorporated into the language of UJI 14-133 NMRA requiring the jury to find “willful
disregard.” An instruction simply quoting the seminal New Mexico case defining the criminal
negligence standard for involuntary manslaughter cannot be objectionable; all it can do is ensure
that in this case where the Defendant’s actual knowledge is a critical question, the jury does not
mistakenly latch onto the words “should have known” and fail to understand the import of the
word “willful” in context of the criminal negligence standard. Indeed, in context of other crimes
with a mens rea of criminal negligence, the New Mexico Uniform Jury Instructions have moved
away from the use of the phrase “should have known” for precisely this reason. Compare UJI
14-602 NMRA (1999) with UJI 14-621 NMRA; see also State v. Mascarenas, 2000-NMSC-017,
4 P.3d 1221 (reversing conviction, on review for fundamental error, for negligent child abuse based
on instruction that stated only that the defendant “knew or should have known of the danger” and
“acted with reckless disregard for the safety” because “to allow [the] conviction to stand when
there is a distinct possibility that he was convicted under a civil negligence standard and not the
proper criminal negligence standard would result in a miscarriage of justice”).

The State argues that “[t]he facts are simple, guns kill and everyone, including Mr. Baldwin, knows
it.” May 21, 2024 State’s Response to Defendant’s Motion to Dismiss the Indictment for Failure
to Allege a Criminal Offense at 14. In this case, the key question is whether that rationale indeed
carries over to an actor rehearsing and filming on the set of a Western film. Given the unique facts
of this case, it is essential that the Court provide the jury a full and accurate understanding of the
awareness and knowledge required under New Mexico law. See UJI Crim. Gen. Use Note (“[A]n
elements instruction may only be altered when the alteration is adequately supported by binding
precedent or the unique circumstances of a particular case, and where the alteration is necessary
in order to accurately convey the law to the jury.”); ...
Without this understanding, the jury cannot adequately fulfill its role in
deciding the question of Mr. Baldwin’s “knowledge or intent” and “whether the Defendant had a
criminally negligent state of mind.”

[realist]

Defense submited proposed jury instructions that address the issue I mentioned, citing case law mentioning the possibility of conviction on a standard for civil rather than criminal negligence and other related issues:
https://nmcourts.gov/wp-content/uploads ... -1201a.pdf
Excerpts:

For you to find the defendant guilty of Involuntary Manslaughter (Without Due Caution or Circumspection) as charged in Count I in the alternative, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. Alec Baldwin, through a purposeful and volitional act, fired a gun at another person while rehearsing a scene during the production of a movie.
2. Alec Baldwin should have known of the danger involved from his actions. To find that Alec Baldwin should have known of the danger, you must find that he had subjective knowledge of the danger or risk to others posed by his actions.
3. Alec Baldwin acted with a willful disregard for the safety of others. To find that Alec Baldwin acted with willful disregard, you must find that his conduct was more than merely negligent or careless. Rather, you must find that he consciously disregarded a substantial and unjustifiable risk of harm to others. A substantial and unjustifiable risk is one that any lawabiding person would recognize under similar circumstances and that would cause any lawabiding person to behave differently than Alec Baldwin out of concern for the safety of others. Further, to find that that Alec Baldwin acted with willful disregard, you must find that he was subjectively aware of the risk caused by his conduct and continued to act.

For you to find that the defendant should have known of the danger involved from his actions as required for the second element of Involuntary Manslaughter, you must find that the State has proved to your satisfaction beyond a reasonable doubt that the defendant had subjective knowledge of the danger or risk to others posed by his actions.

Note they also spell out the requirement for an intentional, volitional act. I think this pertains to the disputed question of whether he pulled the trigger. I was not sure the offense requires intentionally pulling the trigger: couldn't it be criminal negligence to fumble a gun while not taking care to keep it pointed in a safe direction? The question is only whether one intentionally handled a gun in any way that created a risk to others.

I suppose it's normal negotiating procedure to ask for more than one expects to get, but it does look to my eyes like defense is asking rather a lot, e.g. this one, which I would have thought overly specific and not supported by the law. (Defense view is that this is the only way the gun could have presented a substantial risk, the risk of having been loaded with real ammo. At hearing prosecution argued there were other risks than gun containing real ammo, e.g the accident that killed Brandon Lee came from blank rounds + barrel obstruction.)

An issue in this case is whether the defendant believed he was handed a “cold gun” that contained no live ammunition, which had been verified by the armorer and/or the head of safety, such that the gun was unlikely to cause lethal harm. Another issue in this case is whether the defendant believed there was not a substantial risk that there could be live ammunition in the gun. The burden is on the State to prove beyond a reasonable doubt that the defendant did not have an honest and reasonable belief in the existence of either of those facts at the time of the alleged conduct. If you have a reasonable doubt as to whether the defendant’s alleged conduct resulted from a reasonable belief in either of those facts, you must find the defendant not guilty.

Very interested in how this will come out. The requirement of subjective knowledge of risk is well supported by case law -- instructions are just quoting from the decisions -- so one would think it should be unobjectionable to include more explicit verbiage on that, but it does require adding to the Uniform Jury Instructions for the charge.

Which happens all the time. In fact, it would be rare for that not to happen.