408.02	DEFENDANT'S CONVERSE
	[Insert one of the following. Omit brackets and number.  See Notes on Use 4 as to selection.]
[1]	Unless you find and believe from the evidence beyond a reasonable doubt that 
[2]	If you have a reasonable doubt as to 	whether
[3]	If you find and believe that
[Insert the element or elements to be covered in the converse instruction using the language from the verdict director; see Notes on Use for examples.], you must find the defendant not guilty (under Count _____) of [name of offense] as submitted in Instruction No. _____.

Notes on Use
	1.	This is a revision of MAI-CR 3d 308.02 (9-1-01).  This revision is to the Notes on Use only.
	2.	This instruction may be given only upon request of the defendant. Subject to the limitations set out in Notes on Use 3, upon written request in proper form by the defendant, this instruction must be given.  A defendant is entitled to only one MAI-CR 4th 408.02 for each verdict director, but the defendant may have one MAI-CR 4th 408.02 for each verdict director.  However, the use of the special converse for alibi (MAI-CR 4th 408.04 or 408.06) or the special converse for mental disease or defect negating culpable mental state (MAI-CR 4th 408.03) does not prevent the use of a converse based on MAI-CR 4th 408.02.  However, see Notes on Use 8 to MAI-CR 4th 408.03 for the limitations on using a converse based on MAI-CR 4th 408.02 with a special converse based on MAI-CR 4th 408.03.
	This instruction enables a defendant to select from a verdict director the element or elements that he wishes to emphasize. Since a converse instruction is a restatement of matters as to which the state has the burden of persuasion, there is no burden of production of evidence on the defendant in order to have this instruction. All that is required is that the matter be included in the verdict director with the burden of persuasion on the state.
	3.	Limitations:
	(A) There cannot be a converse of an affirmative defense. A defendant can converse only those matters as to which the state has the burden of persuasion. Since the defendant has the burden of persuasion on an affirmative defense, a converse is not appropriate.
	(B) There cannot be a converse of all of the material in the verdict director as to which the state has the burden of persuasion. Such a general converse is already included in the next to last paragraph in the verdict director, which begins "However, unless you find and believe . . . ." But see Notes on Use 4. 
	(C) There cannot be a converse of a matter as to which a cross-reference to another instruction is made in the verdict director WHEN that other instruction contains language instructing the jury to find the defendant not guilty.  Such other instruction is in effect a converse of that matter.  For example, see justification: use of force in self-defense, MAI-CR 4th 406.06, and Notes on Use 2.
	If the cross-reference is to another instruction that is simply (1) definitional and (2) does not contain any direction for a finding of not guilty, then there can be a converse of the matter in the verdict director. Note, however, that while there can be a converse of a paragraph in the verdict director that is a cross-reference to a definitional instruction, the language of the converse instruction must still follow the language contained in the verdict director and not the language of the definitional instruction.
	For example, see Notes on Use 5 to assault in the first degree, MAI-CR 4th 419.02.  If consent is an issue, then the following paragraph must be added to the verdict director:
Second, that the infliction of the injury by defendant [Insert means by which the injury was caused.] was not consented to by [name of victim] as submitted in Instruction No. _____,
	The notes provide that an instruction must be submitted "setting forth the circumstances in which consent is a defense."  If the instruction is drafted as a definitional instruction and does not contain any direction for a finding of not guilty, then paragraph Second can be conversed.  Otherwise, defendant cannot request a converse of paragraph Second. 
	4.	This instruction may converse single or multiple elements of the verdict director.  There are several methods of wording the converse.
	(A) The Introductory Phrase.  The defendant has the option to have the instruction begin with "Unless you find and believe from the evidence beyond a reasonable doubt that", or "If you have a reasonable doubt as to whether", or "If you find and believe that".  Note that the last option may give the appearance of shifting the burden of persuasion to the defendant.
	(B) Conversing One Paragraph.  The material that follows the introductory phrase must be taken from the verdict director.  Care must be taken that the matter is framed in the affirmative or the negative as appropriate in the particular case.
	Examples:
	A verdict director for assault in the first degree may contain a paragraph requiring a finding that "the defendant knowingly caused serious physical injury to Sam Smith by stabbing him." (See MAI-CR 4th 419.02). A converse of this paragraph could read:
Unless you find and believe from the evidence beyond a reasonable doubt that the defendant knowingly caused serious physical injury to Sam Smith by stabbing him, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____. 
Or the converse could begin with "If you have a reasonable doubt as to whether."  Such an instruction would read:
If you have a reasonable doubt as to whether the defendant knowingly caused serious physical injury to Sam Smith by stabbing him, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
Or the last option could be used, in which case the converse would read:
If you find and believe that the defendant did not knowingly cause serious physical injury to Sam Smith by stabbing him, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
When the matter being conversed is stated in the verdict director in negative form, that is, requiring a finding that something did NOT occur, the converse will generally read better if option [2] "If you have a reasonable doubt" or option [3] "If you find and believe" is used.  For example, the verdict director for assault in the first degree may contain a paragraph requiring a finding "that defendant did not act under the influence of sudden passion arising out of adequate cause."
	If option [2] is selected, this paragraph could be conversed as follows:
If you have a reasonable doubt as to whether the defendant acted under the influence of  sudden passion arising out of adequate cause, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
	If option [3] is selected, the converse would be:
If you find and believe that the defendant acted under the influence of sudden passion arising out of adequate cause, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
	Using option [1] "Unless you find" produces a double negative as:
Unless you find and believe from the evidence beyond a reasonable doubt that the defendant did not act under the influence of sudden passion arising out of adequate cause, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
This double negative is avoided by the use of either option [2] or [3].
	(C) Conversing a Part of One Paragraph. Any portion of a single paragraph may be conversed but the converse must be drafted so as to set out fairly the element being conversed and must also be a correct statement of the law.  For example, if a defendant wished to converse whether there was serious physical injury in assault in the first degree, the converse could read:
Unless you find and believe from the evidence beyond a reasonable doubt that the defendant caused serious physical injury, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
Note that any time the defendant is conversing the culpable mental state, the converse must include the conduct, circumstance, or result element to which the culpable mental state refers.  For example, if the defendant wished to converse whether defendant had the necessary culpable mental state so as to cause serious physical injury, the converse could read:
Unless you find and believe from the evidence beyond a reasonable doubt that the defendant knowingly caused serious physical injury, you must find the defendant not guilty of assault in the first degree as submitted in Instruction No. _____.
When a verdict director allows for conviction upon a finding of one or more alternatives, the converse must include all the alternatives.  For example, if a paragraph in the verdict director for assault in the first degree required a finding that "the defendant attempted to kill or cause serious physical injury to Sam Smith by stabbing him," (see MAI-CR 4th 419.06, emphasis added) the defendant could not converse only the attempt to kill but must converse both the attempt to kill and to cause serious physical injury. Where the verdict director uses "or" and the defendant wishes to converse any of the alternatives, the converse must include all the alternatives. Otherwise, it is not a correct statement of the law.
	(D) Combining a Mental Element With Material From Another Paragraph. A converse cannot combine in one paragraph matter contained in separate paragraphs in the verdict director, with the following exception.
	Where the verdict director states in one paragraph a culpable mental state that applies to elements contained in another paragraph, a separate converse instruction can combine the culpable mental state with a particular element from another paragraph.  For example, the verdict director on false bomb reports requires a finding first, that the defendant made a report of a bomb and
	Second, that such report was false, and
Third, that defendant acted knowingly with respect to the facts and circumstances submitted in this instruction,
To converse the culpable mental state set out in paragraph Third in relation to the elements set out in paragraph Second, the instruction would be as follows: 
Unless you find and believe from the evidence beyond a reasonable doubt that the report made by the defendant was false and that the defendant knew it was false, you must find the defendant not guilty of making a false bomb report as submitted in Instruction No. _____.
This same modification may be made using the other introductory phrases to the converse.  Even when such modification of the language of the verdict director is made in the converse, the converse is still limited to those matters as stated in the verdict director.
	(E)	Conversing More Than One Paragraph. A converse may cover more than one paragraph of the verdict director.  However, it cannot cover all of the paragraphs of the verdict director.  See Notes on Use 3(B).  If the defendant wishes to converse more than one paragraph of the verdict director, the converse should use numbered paragraphs in the same manner as a verdict director, as follows:
Unless you find and believe from the evidence beyond a reasonable doubt that
First, [Insert the language from a paragraph being conversed.], and
Second, [Insert the language from another paragraph being conversed and continue as needed with subsequent numbered paragraphs.],
you must find the defendant not guilty (under Count _____) of [name of offense] as submitted in Instruction  No. _____.
This example uses introductory option [1].  If option [2] or option [3] is used as the introductory phrase, the numbered paragraphs in the converse should be connected by "or" rather than "and."  Care must be taken that the matter being conversed is framed in the affirmative or the negative as appropriate in the particular case.