9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Instructions In The Course Of Trial

        2.1     Cautionary Instruction – First Recess
        2.2     Bench Conferences And Recesses
        2.3     Stipulated Testimony
        2.4     Stipulations Of Fact
        2.5     Judicial Notice
        2.6     Deposition As Substantive Evidence
        2.7     Transcript Of Recording In English
        2.8     Transcript Of Recording In Foreign Language
        2.9     Foreign Language Testimony
        2.10   Other Crimes, Wrongs Or Acts Of Defendant
        2.11   Defendant's Photographs, "Mugshots"
        2.12   Dismissal Of Some Charges Against Defendant
        2.13   Disposition Of Charge Against Codefendant
        2.14   Defendant’s Previous Trial

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

We are about to take our first break during the trial and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors.

If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [matron] to give to me.

I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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16.4.1 Jury Not To Read Internet, E-mail, On-line Discussion Groups Or Other Computer- Based Sources Of Media Reports About The Trial

16.2.4.4 Repetition Of Adjournment/Separation Admonition

16.13.3 Bench Conference: Cautionary Instructions

From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Most often these conferences will involve determination as to whether evidence is admissible under the rules of evidence. It is appropriate to take these matters up outside the presence of the jury. Should I conclude that a more prolonged discussion is necessary I may excuse you from the courtroom.

We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

Conducting bench conferences is within the discretion of the court. Regarding the defendant’s right to be present at bench conferences, see Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 1.6.A (1998).

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24.2.3 What Is Evidence: Stipulations

The parties have agreed what [name of witness]’s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court.

There is a difference between stipulating that a witness would give certain testimony and stipulating that the facts to which a witness might testify are true. United States v. Lambert, 604 F.2d 594, 595 (8th Cir. 1979); United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir. 1977). On the latter, see Instruction 2.4 (Stipulations of Fact).

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24.2.3 What Is Evidence: Stipulations

The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976). See also Old Chief v. United States, 519 U.S. 172, 186 (1997) (acceptance of a stipulation regarding prior conviction may be appropriate even where government objects under FRE 403); Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 1.1.D (1998).

Because a stipulation may amount to an admission of guilt, the judge should ascertain that the stipulation is voluntarily and knowingly made. United States v. Stapleton, 600 F.2d 780, 782 (9th Cir. 1979); United States v. Miller, 588 F.2d 1256, 1264 (9th Cir. 1978), cert. denied, 440 U.S. 947 (1979); United States v. Terrack, 515 F.2d 558, 561 (9th Cir. 1975). The judge's inquiry need not, however, be as probing as, for example, the inquiry required by FRCP 11 for guilty pleas. Miller, 588 F.2d at 1263. The judge may take the word of the defendant's counsel that the defendant is aware of the content of the stipulation and agrees to it. United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981).

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24.2.4 What Is Evidence: Judicial Notice

The court has decided to accept as proved the fact that [e.g., the city of San Francisco is north of the city of Los Angeles], even though no evidence has been introduced on the subject. You may, but are not required to, accept this fact as true.

An instruction regarding judicial notice should be given at the time notice is taken. FRE 201(g) permits the judge to determine that a fact is sufficiently undisputed to be judicially noticed, but also requires that the jury be instructed that it is not required to accept that fact. See United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994) (in a criminal case "the trial court must instruct the 'jury that it may, but is not required to, accept as conclusive any fact judicially noticed.'" (citing FRE 201(g).)). But see Ninth Circuit Model Civil Jury Instruction 2.5 (1997) (in civil cases, jury required to accept facts judicially noticed).

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24.2.7.1 Transcript Testimony From Previous Trial, Preliminary Hearing, Deposition, Etc.

25.2.5 Potential Prejudice When Written Statement Offered As Exhibit Favors One Side

[When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded.

The deposition of [name of witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify.

[Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

This instruction should be used only when testimony by deposition is offered as substantive evidence. The Committee recommends that it be given immediately before a deposition is read. It need not be repeated if more than one deposition is read. If the judge prefers to include the instruction as a part of the instructions before evidence, it should be modified appropriately.

See FRCRP 15.

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25.9 Electronic Recordings

You are about to listen to a tape recording that has been received in evidence. Please listen to it very carefully. Each of you has been given a transcript of the recording to help you identify speakers and as a guide to help you listen to the tape. However, bear in mind that the tape recording is the evidence, not the transcript. If you hear something different from what appears in the transcript, what you heard is controlling. After the tape has been played, the transcript will be taken from you.

See United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998).

The Committee recommends that this instruction be given immediately before a tape recording is played so that the jury is alerted to the fact that what they hear is controlling. It need not be repeated if more than one tape recording is played. However, the judge should remind the jury that the tape recording and not the transcript is the evidence and that they should disregard anything in the transcript that they do not hear. If the instruction is also to be given as part of the closing instructions, it should be modified appropriately.

See Instruction 2.8 (Transcript of Recording in Foreign Language).

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24.2.7.3 Transcript Of Foreign Language Recording

You are about to listen to a tape recording in a language other than English. Each of you has been given a transcript of the recording which has been admitted into evidence. The transcript is a translation of the foreign language tape recording.

Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript and disregard any different meaning of the non-English words.

This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is not in issue. See, e.g., United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998); United States v. Fuetes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

See Instructions 2.9 (Foreign Language Testimony) for instruction to be used during trial, and 3.20 (Jury to be Guided by Official English Translation/Interpretation) for instruction at the end of the case.

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16.16.9 Excusal Of Juror Based On Knowledge Of Language Being Interpreted

16.16.10 Bilingual Jurors: A Juror's Perceived Shortcomings In Translation Should Be Discretely Communicated To The Judge Through Written Messages

You are about to hear testimony of a witness who will be testifying in a language other than English. This witness will testify through the official court interpreter. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness' testimony. You must disregard any different meaning of the non-English words.

C.f. United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (jury properly instructed that it must accept translation of foreign language tape-recording where the accuracy of the translation is not in issue); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

See Instructions 2.8 (Foreign Language Transcripts) for instruction to be used during trial, and 3.20 (Jury to be Guided by Official English Translation/Interpretation) for instruction at the end of the case.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

2.10 Other Crimes, Wrongs or Acts of Defendant

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26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You are about to hear testimony that the defendant previously committed other [crimes] [wrongs] [acts] not charged here. I instruct you that the testimony is being admitted only for the limited purpose of being considered by you on the question of defendant's [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose.

This instruction comports with FRE 404(b). Such a limiting instruction must be given if requested, FRE 105; United States v. McClain, 440 F.2d 241, 245 (D.C. Cir. 1971). It may be given sua sponte when appropriate, but a failure to give it sua sponte is not reversible error. United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978); United States v. O'Brien, 601 F.2d 1067, 1070 (9th Cir. 1979). See also United States v. Walls, 577 F.2d 690, 697 (9th Cir.) (while sua sponte limiting instruction was desirable, it was not reversible error to fail to give it), cert. denied, 439 U.S. 893 (1978).

If evidence under FRE 413 or 414 is offered and admitted, the trial judge should give an appropriate cautionary instruction.

See Instruction 4.3 (Other Crimes, Wrongs or Acts of Defendant) for an instruction to be given at the end of the case.

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25.15 Evidence That Suggests Defendant Was Previously Arrested Or Convicted

One of the witnesses, [name of witness], has testified that [e.g., a photograph of the defendant was shown to the witness by the police]. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that the defendant committed this or any other crime.

See United States v. Burdeau, 168 F.3d 352, 357-58 (9th Cir.), cert. denied, 120 S. Ct. 388 (1999).

This instruction should not be given unless specifically requested by the defendant.

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16.17 Partial Dismissal Of Charges During Trial

At the beginning of the trial, the court described the charges against the defendant. Since that time, the charge[s] of [dismissed count[s]] [has] [have] been disposed of and [is] [are] therefore no longer before you.

The defendant is on trial only for the charge[s] of [remaining count[s]]. Evidence presented can only be considered as it relates to [those] [that] remaining count[s].

The Ninth Circuit has affirmed a similarly worded instruction. See United States v. DeCruz, 82 F.3d 856, 865 (9th Cir. 1996) (concluding that the district court's instruction adequately informed the jury that the dismissed counts were not before them, that defendant was on trial only for the remaining counts, and that the evidence could only be considered as it related to the remaining charged counts or as it related to defendant's intent). See also United States v. Bagley, 641 F.2d 1235, 1240 & n.8 (9th Cir.), cert. denied, 454 U.S. 942 (1981).

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19.4 Disposition Of Charges As To Codefendant

The case against codefendant [name] has been disposed of and is no longer before you. Do not guess or speculate as to the reason for the disposition. The disposition should not influence your verdict[s] with reference to the remaining defendant[s], and you must base your verdict[s] solely on the evidence against the remaining defendant[s].

No reference should ordinarily be made in this situation to a plea of guilty by the codefendant. See, e.g., United States v. Barrientos, 758 F.2d 1152, 1159-60 (7th Cir. 1985), cert. denied, 474 U.S. 1062 (1986) ("When a co-defendant becomes absent from a trial, whether through a plea, an acquittal, a government motion to dismiss, temporary flight, or for any other reason, a trial court should acknowledge the co-defendant's absence to the jury and instruct them on their duty to consider the evidence of guilt or innocence as to the remaining defendant without any reference to any implications of the co-defendant's absence."). See also United States v. Carraway, 108 F.3d 745, 755 (7th Cir.), cert. denied, 118 S. Ct. 228 (1997); United States v. Rapp, 871 F.2d 957, 967 (11th Cir.), cert. denied, 493 U.S. 890 (1989).

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16.20 Retrial

You have heard evidence that the defendant has been tried before. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. You are not to consider the fact of a previous trial in deciding this case.

A preferable practice is to avoid all reference to prior trials. This instruction should not be given unless specifically requested by the defendant.