7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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The Functions Of The Court And The Jury

        1.01     The Functions Of The Court And The Jury
        1.02     The Evidence
        1.03     Testimony Of Witnesses (Deciding What To Believe)
        1.04     Weighing The Evidence--inferences
        1.05     Definition Of "Direct" And "Circumstantial" Evidence
        1.06     What Is Not Evidence
        1.07     Attorney Interviewing Witness
        1.08     Party Other Than An Individual
        1.09     Number Of Witnesses
        1.10     Reminder Of Voir Dire Obligations

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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16.3 Duty Of Jury As To The Evidence

24.2 What Is Evidence

FRE 201 governs judicial notice of adjudicative facts [FRE 201(a) (Scope of Rule); 201(b) (Kinds of Facts); 201(c) (When discretionary); 201(d) (When mandatory); 201(e) (Opportunity to be heard); 201(f) (Time of taking notice); 201(g) (Instructing jury)]. Judicial notice may be taken at any stage of the proceedings, but generally only after the parties have been afforded an opportunity to be heard on the matter. FRE 201(g) requires the court in criminal cases to "instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed."

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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Chapter 27 Witness Credibility

You are to decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all, as well as what weight, if any, you give to the testimony of each witness.

In evaluating the testimony of any witness, you may consider, among other things:

[- the witness's age;]

- the witness's intelligence;

- the ability and opportunity the witness had to see, hear, or know the things that the witness testified about;

- the witness's memory;

- any interest, bias, or prejudice the witness may have;

- the manner of the witness while testifying; and

- the reasonableness of the witness's testimony in light of all the evidence in the case.

[You should judge the defendant's testimony in the same way that you judge the testimony of any other witness.]

The portion of the instruction relating to age should be given only when a very elderly or a very young witness has testified.

The bracketed final sentence should be given only when a defendant testifies.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.

In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this "inference." A jury is allowed to make reasonable inferences. Any inferences you make must be reasonable and must be based on the evidence in the case.

While the term "interference is not used in common parlance it was retained here, and defined, as a shorthand in order to avoid the need to repeat the same point elsewhere in the instructions.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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25.12 Circumstantial Evidence

The phrase "circumstantial evidence" is addressed here because of its use in common parlance and the likelihood that jurors may have heard the term outside the courtroom.

There may be cases where a more explicit comparison of direct and circumstantial evidence would be helpful. In such cases, the Court may give examples, e.g., direct proof that it is raining is the testimony of a witness, "I was outside a minute ago and I saw it raining"; circumstantial evidence that it is raining is the sight of someone entering the courtroom carrying a wet umbrella.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

1.06  What Is Not Evidence

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24.3 What Is Not Evidence

Certain things are not evidence.  I will list them for you:

First, testimony [and exhibits] that I struck form the record, or that I told you to disregard, is [are] not evidence and must not be considered.

Second, anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded.  [This includes any press, radio, or television reports you may have seen or heard.  Such reports are not evidence and your verdict must not be influenced in any way by such publicity.

Third, questions and objections by the lawyers are not evidence.  Attorneys have a duty to object when they believe a question is improper.  You should not be influenced by any objection or by my ruling on it.

Fourth, the lawyers' statements to you are not evidence.  The purpose of these statements is to discuss the issues and the evidence.  If the evidence as you remember it differs from what the lawyers said, your memory is what counts.

Committee Comment

This instruction is in accord with that approved by the Seventh Circuit in United States v. Coduto, 284 F.2d 464, 468 (7th Cir.), cert. denied, 365 U.S. 881 (1961).  The Seventh Circuit has also defined minimal measures a district judge is required to take when confronted with evidence of prejudicial publicity prior to and during a trial.  When apprised in a general fashion of the existence of damaging publicity, the district judge is only called upon to "strongly and repeatedly [admonish] the jury throughout the trial not to read or listen to any news coverage of the case."  Margoles v. United States, 407 F.2d 727, 733 (7th Cir.), cert. denied, 396 U.S. 833 (1969).  When the publishing of specific examples of inadmissible evidence is brought to the court's attemtion, further investigation is required to determine juror exposure to it:

Thus, the procedure required by this circuit where prejudicial publicity is brought to the court's attention during a trial is that the court must ascertain if any jurors who had been exposed to such publicity had read or heard the same.  Such jurors who respond affirmatively must then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity.  407 F.2d at 735.

United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972).  This procedure is necessary even if the jury has already delivered a verdict.  United States v. Sanders, 962 F.2d 660, 671 (7th Cir.), cert. denied, 506 U.S. 892 (1992).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial

This instruction should not be given unless there has been testimony regarding prior interviews. "It is not only proper but it may be the duty of the prosecutor and defense counsel to interview any person who may be called as a witness in the case (except that the prosecutor is not entitled to interview a defendant represented by counsel)." ABA Standards, The Prosecution Function 3.1, Comment a (3d ed. 1993).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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16.3.3 Jury Not To Be Influenced By The Relative Number Of Witnesses: Cautionary Instruction

16.3.4 "Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses

You may find the testimony of one witness or a few witnesses more persuasive than the testimony of a larger number. You need not accept the testimony of the larger number of witnesses.

This instruction should not be given when the defendant does not call any witnesses.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

The Committee determined that no purpose would be served by an instruction which reemphasizes the obligations of the jurors. Such an instruction could appear patronizing to jurors whose impartiality has already been tested during voir dire examination. Final arguments should be adequate to remind jurors of the solemnity of their duty.