PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
Go to Federal Model Instructions Table of Contents - Go to FJC Table of Contents

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Members of the Jury:

You will soon leave the courtroom and begin discussing this case in the jury room.

As I told you earlier, the government has accused the defendant, _________, of committing the crime of ____________. But this is only a charge. In order for you to find him guilty, you must be convinced, beyond a reasonable doubt, that he committed this crime as charged. If you are not convinced beyond a reasonable doubt that he committed this crime as charged you must find him not guilty.

During the course of the trial you receive all the evidence you may properly consider to decide the case. Your decision in this case must be made solely on the evidence presented at the trial. Do not be concerned about whether evidence is "direct evidence" or "circumstantial evidence." You should consider all the evidence that was presented to you.

At times during the trial you saw lawyers make objections to questions asked by other lawyers, and to answers by witnesses. This simply meant that the lawyers were requesting that I make a decision on a particular rule of law. Do not draw any conclusion from such objections or from my rulings on the objections. These only related to the legal questions that I had to determine and should not influence your thinking. When I sustained an objection to a question, the witness was not allowed to answer it. Do not attempt to guess what answer might have been given had I allowed the question to be answered. Similarly, when I told you not to consider a particular statement, you were told to put that statement out of your mind, and you may not refer to that statement in your deliberations.

Sometimes in the trial I have asked questions of witnesses. When I asked questions, that did not indicate I had any opinion about the facts in the case.

It is my job to decide what rules of law apply to the case. I have explained some of these rules to you in the course of the trial, and I will explain others of them to you before you go to the jury room. This is my job; it is not the job of the lawyers. So, while the lawyers may have commented during the trial on some of these rules, you are to be guided only by what I say about them. You must follow all of the rules as I explain them to you. You may not follow some and ignore others. Even if you disagree or don't understand the reasons for some of the rules, you are bound to follow them.

If you decide that the government has proved beyond a reasonable doubt that _______ is guilty of the crime as charged, it will also be my job to decide what the punishment will be. You should not try to guess what the punishment might be. It should not enter into your consideration or discussions at any time.

The decision you reach in the jury room, whether guilty or not guilty. must be unanimous. You must all agree. Your deliberations will be secret. You will never have to explain your verdict to anyone.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

10 Jury's Duty to Deliberate

FORECITE National™ Materials Related To This Instruction:

Chapter 278: Duty Of Jury To Deliberate

It is your duty, as jurors, to talk with one another and to deliberate in the jury room. You should try to reach an agreement if you can. Each of you must decide the case for yourself, but only after consideration of the evidence with the other members of the jury. While this is going on, do not hesitate to reexamine your own opinions and change your mind if you are convinced that you are wrong. But do not give up your honest beliefs solely because the others think differently, or merely to get the case over with. In a very real way you are judges, judges of the facts. Your only interest is to determine whether the government has proved the defendant guilty beyond a reasonable doubt.

In the discretion of the trial judge, this instruction can be given either as part of the charge or in response to a report of deadlock by a jury.

The old charge based on Allen v. United States, 164 U.S. 492, 501 (1896), has been under increasing attack within recent times. See Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About to be Permanently Defused? 43 Mo.L.Rev. 613 (1978). The committee's language is a modification of the language suggested in the commentary to Standard 15-4.4(a) of the American Bar Association's Standards for Criminal Justice (Trial by Jury) (2d ed. 1978).

Judges in the Seventh Circuit are cautioned that the above instruction may not be given to a deadlocked jury in that circuit. The only permissible instruction to a deadlocked jury is the instruction set forth in United States v. Silvern, 484 F.2d 879 (7th Cir. 1973), as modified in 1980 by the Committee on Federal Jury Instructions of the Seventh Circuit. Moreover, that instruction may be given to a deadlocked jury only if it was included verbatim in the original charge. United States v. Brown, 634 F.2d 1069 (7th Cir. 1980).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

11 Stipulations of Testimony

FORECITE National™ Materials Related To This Instruction:

24.2.3 What Is Evidence: Stipulations

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

12 Stipulations of Fact

FORECITE National™ Materials Related To This Instruction:

24.2.3 What Is Evidence: Stipulations

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

During this trial, you have heard recordings of conversations [e.g.: that the defendant had with Larry Loop, a government agent]. These conversations were legally recorded by the government; they are a proper form of evidence for this trial and may be considered by you just as any other evidence.

The committee thinks it is important to have an instruction allaying the suspicions of jurors with regard to wiretaps and consensual recordings. The instruction should not define the material terms under the United States Code; it should simply inform the jury that the evidence is legitimate.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

14 Defendant's Previous Trial: Jury Not to Consider

FORECITE National™ Materials Related To This Instruction:

16.20 Retrial

During the course of this trial, you have heard that the defendant was on trial before. That is true. The defendant and the government are entitled, however, to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime.

The committee recommends that this instruction not be given unless specifically requested by the defense.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

15 Defendant's Photographs, "Mug Shots":
No Inference to Be Drawn from Police Possession

FORECITE National™ Materials Related To This Instruction:

25.15 Evidence That Suggests Defendant Was Previously Arrested Or Convicted

You will recall that one of the witnesses in this trial, ___________, testified that [e.g.: he viewed a photograph of the defendant which was shown to him 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 he committed this or any other crime.

The committee recommends that this instruction not be given unless specifically requested by the defense.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

16 Dismissal of Some of Charges Against Defendant:
Jury Not to Consider Certain Evidence

FORECITE National™ Materials Related To This Instruction:

16.17 Partial Dismissal Of Charges During Trial

At the beginning of the trial I told you that the defendant had been accused of ______ different crimes: [Brief descriptions]. In the meantime, I disposed of one of these charges, the one having to do with _______. The charge of _______ is no longer of concern to you. Therefore, the only crime that the defendant is charged with is ________.

The following evidence is no longer in this case: [Describe evidence]. You should not consider any of this evidence when you decide whether the government has proved, beyond a reasonable doubt, that the defendant committed the crime of ______.

The committee recommends that the jury be advised, to the extent practicable, specifically which evidence it should not consider.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

17 Disposition of Charges Against Codefendant:
Jury Not to Consider Certain Evidence

FORECITE National™ Materials Related To This Instruction:

16.18 Disposition Of Charges Against Codefendant

At the beginning of the trial you were told that both defendants, _____ and _____ were accused of committing the crime of _______ . The charge against one of the defendants, ______, has been disposed of, and he will no longer be part of this trial. The fact that he is no longer part of the trial should not enter your thinking when you are called upon to decide whether the government has proved, beyond a reasonable doubt, that the defendant, ______ committed the crime.

The following evidence is no longer in this case: [Describe evidence]. You should not consider any of this evidence when you decide whether the government has proved, beyond a reasonable doubt, that the defendant, ______, has committed the crime of _______.

The committee recommends that the jury be advised, to the extent practicable, specifically which evidence it should not consider.

No reference should be made in this situation to a plea of guilty by the codefendant (if that is the basis for disposition of the charge, as opposed to a dismissal for lack of evidence). If the jury should become aware of the plea it should be strongly instructed that it is not to consider or discuss the plea in deciding the case of the remaining defendant or defendants.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

18 Evidence Admitted for a Limited Purpose:
Jury to Limit its Consideration

FORECITE National™ Materials Related To This Instruction:

Chapter 26 Limited Purpose Evidence

Several times during the trial I told you that certain evidence was allowed into this trial for a particular and limited purpose. [Describe evidence.] When you consider that evidence, you must limit your consideration to that purpose.

This instruction contemplates that the court gave limiting instructions when the evidence was received. The committee recommends that the jury be informed specifically which evidence was so admitted and what limitations were imposed. See Instruction 19 for an example dealing with one type of limited evidence.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

19 Evidence Applicable to Only One Defendant:
Jury to Limit Its Consideration

FORECITE National™ Materials Related To This Instruction:

Chapter 26 Limited Purpose Evidence

As you know, there are ________ defendants on trial here: [Give names]. They are being tried together because the government has charged that they worked together to commit the crime of [e.g.: importing heroin]. Nevertheless, each defendant is entitled to have his case decided just on the evidence which applies to him. Some of the evidence in this ease was limited to one of the defendants and cannot be considered in the cases of the others. That was a legal decision made by me. The testimony you heard that [brief description should be considered only in the case of the defendant, ______, and not in the cases of the others. What that means is that you may consider this testimony in the case of _____ but you may not consider it in any way when you are deciding whether the government has proved, beyond a reasonable doubt, that the other defendants, [give names], committed the crime of _______.

In even the most straightforward cases involving only two defendants, the problem which this instruction addresses can create great difficulties for both the court and the jury. The judge should make an effort to give this type of instruction each time limited evidence is admitted. Moreover. in such a case, the judge might consider marshaling evidence at the and of the trial, there- by identifying the limited evidence available against the defendants. Cf. United States v. Kelly 349 F.2d 720. 757 (2d Cir. 1965); United States v. Kahaner, 317 F.24 459, 479 n. 12 (2d Cir. 1963).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

20 Jury to Consider Only this Defendant, Not
Whether Others Have Committed Crimes

FORECITE National™ Materials Related To This Instruction:

276.7 Deliberation: Multiple Defendants

As I explained to you earlier, the defendant, _________ is on trial here because the government has charged that he [brief description of the crime]. The only question you must answer is whether the government proved, beyond a reasonable doubt, that he committed this crime. It is not up to you to decide whether any other person is guilty of any crime. The question of the possible guilt of others should not enter your thinking when you decide whether the government has proved beyond a reasonable doubt that the defendant committed the crime.

This instruction should not be given in cases in which the allegation is one of vicarious liability, such as conspiracy or aiding and abetting. In those cases the jury may be required to decide (at least as a preliminary matter) whether other persons are guilty of a crime. The instruction may require some modification in cases in which an alibi or a mistake in identification is raised.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

270.4 Reasonable Doubt Standard: General Principles

270.5 Reasonable Doubt Standard: Specific Words And Phrases

As I have said many times, the government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

The circuit courts are divided on the question whether a reasonable doubt instruction should be given. Because of the important, yet somewhat vague, underlying principles involved in this concept, some courts think no instruction could convey the broad sense of the term. See United States v. Larson, 581 F.2d 664, 669 (7th Cir. 1978). In other courts, however, because of the central importance of the phrase, it could well be reversible error to fail to give an instruction, particularly if requested by counsel. See Friedman v. United States, 381 F.2d 155, 160 (8th Cir. 1967).

The committee has attempted to give a relatively short instruction highlighting the importance of the concept. See Tsoumas v. New Hampshire, 611 F.2d 412 (1st Cir. 1980); Reeves v. Reed, 596 F.2d 628 (4th Cir. 1979).

The committee recognizes that many appellate opinions lend strong support to the standard formulation that a reasonable doubt is a doubt that would cause a person to hesitate to act in the most important of one's own affairs. E.g., United States v. Morris, 647 F.2d 568, 571-72 (5th Cir. 1981); United States v. Fallen, 498 F.2d 172, 177(8th Cir. 1974); United States v. Stubin, 446 F.2d 457, 465 (3d Cir. 1971). Judges are cautioned that the committee's instruction may not be acceptable in some circuits. Nevertheless. the committee has rejected the standard formulation because the analogy it uses seems misplaced. In the decisions people make in the most important of their own affairs, resolution of conflicts about past events does not usually play a major role. Indeed, decisions we make in the most important affairs of our lives- choosing a spouse, a job, a place to live, and the like-generally involve a very heavy element of uncertainty and risk-taking. They are wholly unlike the decisions jurors ought to make in criminal cases.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

18.3 Failure Of Defendant To Testify

Remember that a defendant has an absolute right not to testify (offer evidence). The fact that _______ did not testify (offer any evidence) should not be considered by you in any way or even discussed in your deliberations. I remind you that it is up to the government to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that he is not guilty.

While it may be permissible to give this instruction over the defendants objection, the committee recommends that the instruction not be given unless requested by the defendant. If there is more than one nontestifying defendant and the instruction is requested by some but not all such defendants, it should be given in general terms without the use of the defendants names.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 27 Witness Credibility

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

24 Testimony of Accomplice or Other Witness Testifying in
Exchange for Immunity or Reduced Criminal
Liability: Cautionary Instruction
Evaluating Particular Kind of Evidence

25.5 Witness Immunity

25.6 Accomplices: Cautionary Instructions

You have heard the testimony of _______. He is providing evidence for the government in exchange for a promise from the government that [e.g.: he will not be prosecuted for the things he is testifying about; the prosecution will recommend lenient treatment in his own case]. He told the government what he would testify to in exchange for this promise.

The government may present the testimony of someone who has been promised favorable treatment in his own case in exchange for his testimony. Some people in this position are entirely truthful when testifying. Still, you should consider the testimony of _________ with more caution than the testimony of other witnesses. He may have had reason to make up stories or exaggerate what others did because he wanted to strike a good bargain with the government about his own case. In deciding whether you believe ________ ‘s testimony, you should keep these comments in mind.

The committee believes that it is important to draw attention to the testimony of witnesses who are testifying in exchange for immunity or other benefits, and that some explanation should be given to the jury of the reason that statements by such witnesses are subject to suspicion.

There is no separate instruction for accomplice witnesses. In light of the prevalence of plea bargaining and immunity, they are generally testifying after having struck a deal with the government and are adequately covered by this instruction.

The instruction does not use the terms "accomplice" or "immunity." It was considered preferable to avoid the use of these legal terms. If the lawyers have used the terms, however, it may be desirable to define them when this instruction is given. The end of the first paragraph of the instruction would he an appropriate place.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

25.7 Witness Or Informant Receiving Benefit From Prosecution

You have heard the testimony of ________. He has an arrangement with the government under which he gets paid for providing information about criminal activity. The government may present the testimony of such a person. Some people who get paid for providing information about criminal activity are entirely truthful when testifying. Still, you should consider the testimony of ________ with more caution than the testimony of other witnesses. Since he may believe that he will continue to be paid only if he produces evidence of criminal conduct, he may have reason to make up stories or to exaggerate what others did. In deciding whether you believe ___________'s testimony, you should keep these comments in mind.

The committee believes that it is important to draw attention to the testimony of informers, and that some explanation should be given to the jury of the reason that statements by these witnesses are subject to suspicion.

The term "informer" is not used in the instruction. It was considered preferable to avoid it. If the lawyers have used the term, however, it may be desirable to define it when giving this instruction. This could be done by adding the phrase, "who is called an informer," at the end of the third sentence.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

27.6 Police Officers And Governmental Employees

The committee believes that Instruction 23, General Considerations in Evaluating Witnesses' Testimony adequately covers cases in which the credibility of an agent witness is called into question based upon his position, and the committee recommends that no special instruction be given.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 29: Expert Opinion Testimony

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

27.2.13 Testimony Of A Child: Cautionary Instruction

You have heard the testimony of ______, and you may be wondering whether his young age should make any difference. What you must determine, as with any witness. is whether that testimony is believable. Did he understand the questions? Does he have a good memory? Is he telling the truth?

Because young children may not fully understand what is happening here, it is up to you to decide whether _______ understood the seriousness of his appearance as a witness at this criminal trial. In addition, young children may be influenced by the way that questions are asked. It is up to you to decide whether _____ understood the questions asked of him. Keep this in mind when you consider _________'s testimony.

This instruction is somewhat shorter than the standard child's testimony instruction. The committee believes that it is sufficient to call to the jury's attention the basic difficulties with the testimony of a child, specifically stressing the kinds of issues which may arise in connection with such testimony.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

27.7.6 Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath

It has been shown that ________, one of the witnesses for the (government) (defense), lied under oath on an earlier occasion. (Add if necessary: A person who lies when he was sworn to tell the truth is guilty of perjury.)

Whether _______ is telling the truth in this trial is for you to decide. But the fact that he lied under oath on an earlier occasion should make you cautious about believing him now.

This instruction will rarely be used, for it will be appropriate only when there is proof through either a perjury conviction or an admission by the witness, that the witness intentionally lied under oath. See FRE 608(b), 609.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction

You have been told that the witness _____ was convicted in 19__ of [e.g.: armed robbery]. This conviction has been brought to your attention only because you may wish to consider it when you decide as with any witness, whether you believe his testimony.

Some instructions combine in a single charge the question of prior felony convictions for defendants and witnesses. The committee thought it would be clearer for the jury if these instructions were separated. The instruction about defendants' prior convictions is No. 41.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

251.4.3.3 Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation

You have heard the testimony of _______, who was a witness in the (government's) (defense) case. You also heard testimony from others concerning (their opinion about whether he is a truthful person) (his reputation in the community where he lives, for telling the truth.) It is up to you to decide from what you heard here whether ______ was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning his (reputation for) truthfulness.

The committee believes that this instruction will seldom be needed; argument by counsel should adequately cover the point.

Under FRE 608(a) a witness may give his opinion of the character of the other witness for truthfulness, and not only state the reputation.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

26.3 Prior Inconsistent Statements

You will recall that _______ testified during the trial [description, if needed]. You will also recall that it was brought out that before this trial he made statements about this matter. These earlier statements were brought to your attention to help you decide if you believe _________'s testimony. You cannot use these earlier statements as evidence in this case. However, if ________ said something different about this matter earlier, and the two stories were conflicting, then there may be reason for you to doubt ________'s testimony here. That's up to you to decide.

The instruction deals with the situation in which there is no dispute about whether the witness made the earlier statement. If he denies making it, the jury must be instructed to decide if he made the statement.

The instruction does not deal with the situation in which the witness is impeached by omission. The committee thinks this matter is better handled through argument of counsel.

This instruction must be given if requested by the party opposing the impeachment.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

26.3 Prior Inconsistent Statements

You will recall that ______ testified in the (government's) (defense) case during the trial. You will also recall that it was brought out that before this trial he made statements concerning the subject matter of this trial. Even though these statements were not made in this courtroom they were made under oath at [e.g.: another trial]. Because of this, you may consider these statements as if they were made at this trial and rely on them as much, or as little, as you think proper.

The committee does not see the necessity of giving this instruction unless the jury has been instructed about impeachment by prior inconsistent statements that were not under oath (Instruction 32).

This instruction is for use only when the prior statement that is inconsistent with statements made at trial was given under oath at a previous trial, hearing or other proceeding, or in a deposition. See FRE 801(d)(1)(A). If these standards are not met, only Instruction 32 should be given.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

26.4 Prior Consistent Statements

_______ testified in the (government's) (defense) case during the trial. You will recall that it was brought out that before this trial he made statements which were the same as, or similar to, what he said in the courtroom. These earlier statements were brought to your attention to help you decide whether you believe ________'s testimony. If ________ said essentially the same thing on more than one occasion it may be reason for you to believe _________'s testimony.

As with prior inconsistent statements under oath, prior consistent statements can be offered as substantive evidence under FRE 801(d)(1)(B). Unlike prior inconsistent statements, the prior consistent statement need not be made under oath or at a previous trial, hearing, or other proceeding. Any prior consistent statement may be offered as substantive evidence under FRE 801(d)(1)(B) provided it is offered to rebut a charge of recent fabrication or improper influence or motive.

Even though these statements come in as substantive evidence. to avoid confusion the committee thought it would be best to instruct the jury in terms of using the prior consistent evidence to bolster the in-court testimony.

The committee recommends that this instruction not be routinely given and that the subject generally be left to argument of counsel.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 31: Identification: Eyewitness (Mistaken Identity)

The government must prove, beyond a reasonable doubt, that the crime charged in this case was actually committed. But more than that, the government must also prove beyond a reasonable doubt, that the defendant, ________, committed that crime. Therefore, the identification of (D) by (W) as [brief description of the details of the identification] is a necessary 1 (important) part of the government's case. As with any other witness, you must first decide whether (W) is telling the truth as he understands it. But you must do more than that. You must also decide how accurate the identification was whether the witness saw what he thought he saw.

You should consider

[the testimony that the witness did not know the defendant before the crime took place].

[whether the witness had a good opportunity to see the person].

[whether the witness seemed as though he was paying careful attention to what was going on].

[whether the description given by the witness was close to the way the defendant actually looked].

[how much time had passed between the crime and the first identification by the witness].

[whether, at the time of the first identification by the witness, the conditions were such that the witness was likely to make a mistake, that is, the witness was not asked to pick out the person he saw from a group of people].

[that (whether), at an earlier time, the witness failed to identify the defendant].

[that (whether), at an earlier time, the witness changed his mind regarding the identification].

[whether the witness seemed certain at the time of the first identification and again when he testified here in court].

If you are not convinced beyond a reasonable doubt that it was the defendant who committed the crime, you must find him not guilty.

Footnote 1: Alternative language for cases in which there is significant corroborative evidence.

Concern had been expressed about the identification of the defendant by only one witness when there is no independent corroboration. See United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972); United States v. Smith, 563 F.2d 1361, 1364-66 (9th Cir. 1977) (concurring opinion). In cases where such an identification will be determinative, a careful detailed instruction should be given to the jury to minimize any chance of misidentification.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 28 Out Of Court Statements By Defendant

You heard testimony that the defendant made a statement to [e.g.: the FBI] concerning the crime that is charged in this case. When you consider this testimony, you should ask yourselves these questions:

First, did the defendant say the things the witness told you the defendant said? To answer this question you must decide if the witness is honest, has a good memory, and whether he accurately understood the defendant.

Second, if the defendant _______, did make the statement, was it correct? Here you must consider all of the circumstances under which the statement was made, including the defendant's personal characteristics, and ask yourselves whether a statement made under these circumstances is one you can rely on.

After you have answered these questions, you may rely on the testimony about the statement as much, or as little, as you think proper.

The committee concluded that it is not necessary to instruct the jury about the factors enumerated in 18 USC 3501(b).

The tern "confession" is not used in the instruction, for fear that the term itself carries such strong connotations that the rest of the instruction would carry somewhat less force.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

37 Confession of One Defendant in Multidefendant Trial
(To Follow Instruction 36 Immediately)

19.3.3 Inculpatory Statement Of One Codefendant In Multi-Defendant Trial (Bruton)

However, you may consider the statement of __________ only in the case against him and not in the case against the others. What that means is that you may consider this statement against __________, and rely on it as much or as little as you think proper, but you may not consider or discuss it in any way when you are deciding whether the government has proved, beyond a reasonable doubt, that the other defendants, [give names], committed the crime of ________. Please remember that.

The standard codefendant confession instruction is likely no as important as it once was due to the Bruton rule. Bruton v. United States, 391 U.S. 123 (1968). It is important to have such an instruction for situations in which exceptions to the Bruton rule apply, such as with redacted statements.

This instruction should not, of course, be used in connection with coconspirator declarations admitted under FRE 801(d)(2)(E).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

27.7.8 Witness Wilfully False (Falsus In Uno): Definition of "Material Part"

The committee recommends that no instruction be given.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

36.2 Missing Witness

You will remember that _______ said that [name of missing witness] was [e.g.: present when the crime is supposed to have been committed]. [Name of missing witness] was also described as being [e.g.: well known to] the government (defendant). This may have caused you to wonder why was not called as a witness to answer questions in this trial. If you believe that the testimony of ________ would have been important, and if you also believe that the government (defendant) could have brought him to court to testify in this trial, then you may consider its (his) failure to do so when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime. In other words, you may conclude that the government (defense) did not call ________ as a witness because his testimony would have hurt the government (defense) case.

The committee recommends that this instruction not be routinely given and that the subject generally be left to argument by counsel. If the district judge uses this instruction. it should not be used against the defendant who offers no evidence in his defense. The jury is consistently instructed that the burden is on the government and the defendant is under no obligation to prove his innocence. The use of the instruction in this situation would severely undercut this view.

The committee deleted the standard language that the witness be "peculiarly" available to one of the parties. It was thought that such language would be confusing to the jury.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

18.5.1 Credibility Of Defendant's Testimony: Relying On Defendant’s Interest In The Outcome Of 
The Trial

The defendant, _______ testified in his own behalf. You may be wondering if the personal stake that he has in the outcome of this trial should cause you to consider his testimony any differently from that of other witnesses. It is proper for you to consider his personal stake in the outcome of the trial when you decide whether or not you believe his testimony. But remember that the defendant is presumed innocent unless the government proves, beyond a reasonable doubt, that he is guilty. The fact that he has been charged with the crime of ________ is no reason by itself for you not to believe what he said.

In some circuits it is error to give this instruction over the defendant's objection. This accords with the view that "the testimony of the accused should not be 'singled out' in the court's charge." United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir. 1976). In other circuits, it has been held proper to give the instruction at the request of the prosecution. E.g., United States v. Hill, 470 F.2d 361, 363-65 (D.C.Cir. 1972).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

27.3.2 Prior Conviction Of Defendant

You have been told that the defendant, was found guilty in 19__ of [e.g.: bank robbery]. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much you will believe of his testimony in this trial. The fact that the defendant was found guilty of another crime does not mean that he committed this crime, and you must not use his guilt for the crime of _____________ as proof of the crime charged in this case. You may find him guilty of this crime only if the government has proved beyond a reasonable doubt that he committed it.

For impeachment by prior conviction of a witness other than the defendant, see Instruction 30.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

42 Defendant's Testimony: Impeachment by Otherwise
Inadmissible Statement

FORECITE National™ Materials Related To This Instruction:

26.3.3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda

You will recall that the defendant, ________, testified during the trial on his own behalf. You will also recall that it was brought out that he was questioned at an earlier time and made certain statements. These earlier statements by _______ were brought to your attention only to help you decide if you believe what he has testified to here in court. If he said something different earlier, and the two stories were conflicting, then it will be up to you to decide if what he said here in court was true. You should not, however, consider what was said earlier as proof or evidence of the defendant's guilt. The government must use other evidence to prove, beyond a reasonable doubt, that the defendant committed the crime.

This instruction deals with the Harris rule, which allows an unlawfully obtained statement to be used for impeachment purposes. Harris v. New York, 401 U.S. 222 (1971). The trial judge should stress that the government cannot use the prior statement to prove the defendant's guilt; it can only use it to impeach. Of course, the statement can only be used if the defendant takes the stand and testifies contrary to the prior statement.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 34: Consciousness Of Guilt

______ testified that, after the crime was supposed to have been committed, the defendant, ______ [brief description of behavior]. If you believe that the defendant [same brief description], you should keep that in mind when deciding whether the government has proved beyond a reasonable doubt that he committed the crime. On the one hand, you may think that what he did at that time indicated that he knew he was guilty and was attempting to avoid punishment. On the other hand, it is sometimes true that an innocent person will [same brief description] in order to avoid being arrested and charged with a crime.

This instruction should not be given in most cases. Generally, argument of counsel would sufficiently explain the issues.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

34.4 False Statements

You have heard testimony that the defendant [e.g: after being arrested by the police, denied that he was acquainted with the victim]. You have also heard testimony that his statement to the police was false and misleading. If you believe that what _______ said to the police was false and that he knew it was false, you should keep that in mind when you decide whether the government has proved, beyond a reasonable doubt, that he committed the crime. Although someone suspected of a crime is not required at any time to answer questions, if he made a statement that he knew was false, that may indicate to you that he was guilty of the crime and was attempting to avoid punishment. It is sometimes true, however, that an innocent person may make a false and misleading statement in order to avoid being arrested and accused of a crime.

As with the previous instruction, related to incriminating actions of the defendant after the crime, the committee believes this instruction should not be given in most cases. and that the matter should be left to argument of counsel.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

25.14 Adoptive Admissions

You recall the testimony of (W) who said [e.g.: that while walking with the defendant after the robbery was supposed to have taken place he asked the defendant ["Why did you rob the post office?"]. (W) testified that after he said this to (D) , (D) said nothing in response. If you believe (W) 's testimony you should keep that in mind when deciding whether the government has proved, beyond a reasonable doubt, that the defendant committed the crime. On the one hand, you may think that the defendant's silence indicated that he knew he was guilty and would not deny the charge. On the other hand. it is sometimes true that an innocent person will not respond to such statements.

As with the previous two instructions, the committee believes that this instruction should not normally be given, and that the matter should be left to argument of counsel.

If the accusation (or question) came from a government officer when the defendant was in custody, the silence cannot be used at trail under Doyle v. Ohio, 426 U.S. 610 (1976).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

276.7 Deliberation: Multiple Defendants

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

40.1 Date Of Crime Charged: Due Process Violation Where Defendant Was Misled By Date Charged In Preparing Defense

40.2 Time And Date Of Crime: Variance Between Pleading And Proof

40.3 Time of Crime: Request For Continuance Necessary To Preserve Variance Issue

The government has charged that on or about [e.g.: June 5, 1978, William Smith robbed the Main Street Bank]. The government does not have to prove that the crime was committed on that exact date, [repeat date], so long as the government proves beyond a reasonable doubt that the defendant committed the crime on a date near [repeat date].

This instruction should not be given: (1) when there is a statute of limitations issue; (2) when the date is an essential element of the offense so that the defendant was misled by the date set out in the indictment, or (3) when the defendant's alibi defense is necessarily linked to the date in the indictment.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)

I have just told you about the crime of [e.g: bank robbery]. For you to find someone guilty of [bank robbery], it is not necessary that you find that he actually [robbed the bank] himself. It is enough if he intentionally helped someone else [rob the bank].

To find ________ guilty of [bank robbery], therefore, you must be convinced that the government has prove each of these things beyond a reasonable doubt:

First, that __________ helped [name of principal] commit [bank robbery].

Second, that _______ intended to help [name of principal] commit the [robbery].

Commentary

Aiding and abetting is not a substantive crime. but is method of making a codefendant equally culpable where another defendant actually carried out the substantive offense. When a codefendant did not participate in the actual commission of the crime, the indictment will usually refer to 18 USC 2 as a companion to the substantive offense in the same count. Where the government's proof supports it, the aiding and abetting instruction should be given.

Aiding and abetting requires proof that the defendant provided aid and that he intentionally helped another actually commit a crime. United States v. Phillips, 664 F.2d 971, 1010 (5th Cir. Unit B Dec. 1981), cert. denied, 457 U.S. 1136 (1982). While a high level of activity need not be shown; there must be some intentional active assistance, as distinguished from a mere presence at the scene of the crime or simple knowledge that a crime is being committed. United States v. Campbell, 702 F.2d 262, 265 (D.C. Cir. 1983), United States v. Beck, 615 F2d 441, 448-49 (7th Cir. 1980); Pinkney v. United States, 380 F.2d 882, 886 (5th Cir. 1967), cert. denied, 390 U.S. 908 (1968).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Chapter 56: Possession

You should find that the defendant had possession of the [e.g.: heroin] if he had control of it, even though it was physically [e.g: in the closet]. If two or more people had control of it together, they had possession of it jointly. But it is not enough that the defendant may have known about the [heroin]; the defendant possessed the [heroin] only if he had control of it, either alone or together with someone else.

Commentary

This instruction is intended to be used only where there is evidence supporting a finding of constructive possession. The committee does not believe that any instruction is necessary where the evidence is of actual possesion.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

Volume 12: Lesser Offenses (Ch. 265-269)

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

26.5 Uncharged Acts To Prove Issues Other Than Propensity

As you know, the defendant, ____________, is on trial here for [e.g.: knowingly sending gambling materials in interstate commerce]. In order for you to find the defendant guilty of this crime, the government must prove each of the following elements of the crime beyond a reasonable doubt. [First, the defendant sent gambling materials. Second, the defendant sent those materials in interstate commerce. Third, the defendant knew that these were gambling materials he was sending].

As I said, one of the things the government must prove beyond a reasonable doubt is that the defendant [knew that these were gambling materials]. You have heard testimony indicating that [on prior occasions the defendant sent gambling materials between two states]. That testimony is not evidence that [the defendant sent gambling materials in interstate commerce] on this particular occasion. The government must prove that from other evidence beyond a reasonable doubt. But if you conclude on the basis of other evidence that [the defendant did send gambling materials in interstate commerce as charged], you may consider the testimony about prior occasions in deciding whether [he knew that these were gambling materials].

I remind you that the defendant is on trial here only for [description of charge that distinguishes it from the earlier acts]. Do not convict him if the government has failed to prove this charge beyond a reasonable doubt.

The committee concluded that the best way to limit the confusion occasioned by evidence admitted under FRE 404(b) is to outline with clarity the elements of the offense and describe the testimony. The jury would then he told that after it has found the other elements beyond a reasonable doubt, the jury could look to the evidence to prove the remaining element.

To minimize this problem, some judges will not permit evidence of the other acts of the defendant to be introduced in the government's case in chief, but only in rebuttal if the defendant denies intent, knowledge, etc.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

251.4 Good Character Of Defendant

You have heard the testimony of __________, who said that the defendant, _________, (has a good reputation for [e.g.: honesty] in the community where he lives and works) (in his opinion, is an [honest] person). Along with all the other evidence you have heard, you may take into consideration what you believe about the defendant's [honesty] when you decide whether the government has proved, beyond a reasonable doubt, that the defendant committed the crime. Evidence of the defendant's [honesty] alone may create a reasonable doubt whether the government proved that the defendant committed the crime.

It is not clear that the final sentence is legally required but the committee felt such a reference was appropriate.

Under FRE 405, a witness may give his opinion about a character trait of the defendant, and not only state the reputation.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

251.4.2.8 Improper For Prosecutor To Assume Defendant Is Guilty When Cross-Examining Good Character Witness

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

251.2 Alibi

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

257.3 Entrapment

The defendant in this case, _______ is on trial for _______. You have heard evidence [e.g.: that government agents persuaded the defendant to sell the drugs and he had never previously sold drugs]. To consider that evidence, you need to understand a legal term that we call "entrapment." Even though _________ may have [sold the drugs], as charged by the government, if it was the result of entrapment then you must find him not guilty. Government agents entrapped _________ if three things occurred:

First, the idea for committing the crime came from the government agents and not from ______ , the person accused of the crime.

Second, the government agents then persuaded or talked _______ into committing the crime. Simply giving __________ the opportunity to commit the crime is not the same as persuading him to commit the crime.

And third, the defendant was not ready and willing to commit the crime before the government agents spoke with him. Consider all of the facts when you decide whether the defendant would have been ready and willing to commit the crime without the actions of the government agents.

On the issue of entrapment, as on other issues, the government must convince you beyond a reasonable doubt that the defendant was not entrapped by government agents.

Commentary

The term "predisposition" has been avoided here, as it appears to have little meaning for the layperson.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

256.4 Insanity

If you conclude that the government has proved beyond a reasonable doubt that _______ committed the crime as charged, you must then consider whether he should be found "not guilty only by reason of insanity." _________ was insane only if, as a result of a severe mental disease or defect, he could not understand that what he did was wrong.

On this issue, it is the defendant who must prove his insanity. You should render a verdict of "not guilty only by reason of insanity" if you are persuaded by evidence that you find clear and convincing that _______ was insane when the crime was committed.

Remember, then, that there are three possible verdicts in this case: guilty, not ~guilty and not guilty only by reason of insanity.

Commentary

Pub.L. No.98-473, § 402, 98 Stat. 1837, 2057 (1984), added 20 to title 18 of the United States Code, redefining the insanity defense and reallocating the burden of proof. This provision was redesignated as § 17 by Pub.L.No. 99-646, 34, 100 Stat. 3592, 3599 (1986).

Although § 17 refers to the defendant's inability to appreciate the nature and quality of his acts as well as his inability to appreciate their wrongfulness, the committee believes that it will rarely be appropriate to instruct on inability, to appreciate the nature and quality. For most offenses. such inability would be inconsistent with the mens rea requirement.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

254.1 Duress/Coercion

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

25.2.1 Cautionary Instruction: Exhibits

25.2.3 Jury Not to Discuss Exhibits Prior to Deliberation

25.2.4 Jury Should Not Give Undue Weight To Reproduced Exhibits

25.2.8 Availability Of Exhibits During Deliberations

276.3 Deliberations: Materials In Juryroom

283.10 Jury's Right To Request Exhibits

Commentary

If the judge wishes to instruct the jurors that they may ask to have portions of the transcript read back to them, this would be an appropriate place to so inform them.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

FORECITE National™ Materials Related To This Instruction:

Chapter 277: Deliberations: Foreperson

Chapter 283: Communication With Jury

Chapter 287: Verdict