MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006 (Updated 2008)
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Chapter 2 Instructions For Use During Trial (Updated 10/2006)

    2.01     Recesses
    2.02     Stipulated Testimony
    2.03     Stipulation of Fact
    2.04     Judicial Notice (FRE 201)
    2.05     Audio/Video Recordings - Consensual
    2.06     Audio/Video Recordings - Non-consensual (Wiretaps)
    2.07     Audio/Video Recordings - Transcripts
    2.08     Transcript of Recording in Foreign Language
    2.09     Opinion Evidence (Expert Witnesses)
    2.10     Opinion Evidence (Lay Witnesses) (FRE 701)
    2.11     Limited Admissibility: Evidence Admitted for a Limited Purpose
    2.12     Limited Admissibility: Evidence Admitted Against Only One Defendant
    2.13     Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))
    2.14     Stricken Testimony, Disregard
    2.15     Prior Consistent Statements (FRE 801(d)(1)(B))
    2.16     Impeachment of Witness – Prior Inconsistent Statement for Credibility Only
    2.17     Impeachment of Defendant's Character Witness (FRE 404, 405)
    2.18     Impeachment of Witness – Prior Bad Acts (FRE 608(b))
    2.19     Impeachment of Witness – Prior Conviction (FRE 609)
    2.20     Impeachment of Witness – Violation of Sequestration Order
    2.21     Fifth Amendment Privilege of Witness Other Than the Defendant
    2.22     Witness Who Has Pleaded Guilty to the Same or Related Charges
    2.23     Defendant's Prior Bad Acts or Crimes (FRE 404(b))
    2.24     Impeachment of Defendant - Prior Bad Acts (FRE 608(b))
    2.25     Impeachment of Defendant - Prior Conviction (FRE 609)
    2.26     Impeachment of Defendant - Prior Inconsistent Statement Taken in Violation of Miranda
    2.27     Prior Statement of Defendant – Single Defendant on Trial
    2.28     Prior Statement of a Defendant – Multi-Defendant Trial
    2.29     Photographs, Inflammatory
    2.30     Photograph of Defendant ("Mug Shots")
    2.31     Dismissal During Trial of Some Charges Against Single Defendant
    2.32     Disposition During Trial of All Charges Against One or More Co-Defendant(s)
    2.33     Previous Proceeding (Trial) of Defendant
    2.34     Disruptive Defendant
    2.35     Discharge of Defense Counsel During Trial
    2.36     Prejudicial Publicity During Trial
    2.37     Instructions Prior to Closing Arguments

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.01
Recesses

16.2.3 Duty Not To Converse With Other Persons

16.2.4.4 Repetition Of Adjournment/Separation Admonition 

16.4 Juror Exposure To And Consideration Of Matters Not Admitted Into Evidence

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

We are about to take a break or recess during the trial, and I want to remind you of the instructions I gave you earlier about your conduct as jurors.

During this recess and all other recesses, do not discuss this case with anyone, including your fellow jurors, other people involved in the trial, members of your family, friends, or anyone else. Do not speak at all with any of the parties, the witnesses, or the attorneys. Do not permit anyone to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please report that to me, through my courtroom deputy, immediately.

While I do not know whether there is any news coverage of this case, do not watch or listen to any news reports concerning this trial on television or on radio and do not read any news accounts of this trial in a newspaper or on the Internet. Do not use the internet to search for information about the parties, witnesses, lawyers, or anyone else associated with the trial. The only information you are to consider in deciding this case is what you learn in this courtroom.

Remember to keep an open mind. Do not make up your mind about the verdict until you have heard all the evidence, I have given you final instructions about the law at the end of trial, and you have discussed the case with your fellow jurors during your deliberations.

See O’Malley § 11.01 (Admonitions At Court Recess--Long Form), § 11.02 (Admonitions At Court Recesses--Short Form). For variations, see Eighth Circuit § 2.01, Ninth Circuit § 2.1.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.02
Stipulated Testimony

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 by the witness.

The instruction is derived from Ninth Circuit § 2.3. For variations, see Sand § 5-7 and Eighth Circuit § 2.02.

When the parties stipulate to what a witness would testify to if called, it is error to instruct the jury that it must consider the stipulated testimony as true. See United States v. Bennally, 756 F.2d 773 (10th Cir. 1985). See Instruction 2.03 (Stipulation of Facts) if the stipulation is as to an issue of fact.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.03
Stipulation of Fact

24.2.3 What Is Evidence: Stipulations

The Government and the defendant(s) have agreed that (set forth stipulated fact(s)) (is)(are) true. You should therefore treat (this fact)(these facts) as having been proved. You are not required to do so, however, since you are the sole judge of the facts.

See 1AO’Malley, § 12.03, Sand § 5-6, and Ninth Circuit § 2.4. For variations, see Ninth Circuit § 2.4 and Federal Judicial Center § 12.

In a criminal case, the jury is not necessarily bound by a stipulation between the parties. In United States v. Cornish, 103 F.3d 302 (3d Cir. 1997), the defendant unsuccessfully argued that the trial court’s instruction gave too binding an effect to the stipulation concerning the defendant’s prior conviction. The trial court simply instructed the jury that "it’s been agreed that on April 16th, 1994, defendant had been previously convicted of such a crime." The Third Circuit concluded that the instruction was not plain error. Nevertheless, the court appeared to express a preference for instructions that tell the jurors they "should" treat stipulated facts as having been proved, commenting that such instructions "avoid the hazard, apparent or not, of directing a verdict on a factual issue and would be shielded from constitutional challenge." Id. at 306-07.

In cases where a stipulation may amount to an admission to an element of the offense, the judge may wish to exercise caution. The Third Circuit has yet to address the question, but judges may wish to ascertain that the defendant understands the contents of the stipulation and agrees to it.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.04
Judicial Notice (FRE 201)

24.2.4 What Is Evidence: Judicial Notice

I have taken judicial notice of certain facts. (State the fact(s) that are being judicially noticed.) I believe (this fact is)(these facts are) [(of such common knowledge)(can be so accurately and readily determined from) (name accurate source)] that (it)(they) cannot reasonably be disputed. You may accept this fact as proven, but are not required to do so. As with any fact the final decision whether or not to accept it is for you to make and you are not required to agree with me.

This instruction is derived from Eighth Circuit § 2.04. For variations, see 1A O’Malley § 12.03, Sand § 5-5, Sixth Circuit § 7.19, Seventh Circuit § 1.02, and Ninth Circuit § 2.5.

Rule 201 of the Federal Rules of Evidence governs judicial notice of adjudicative facts. Rule 201(b) defines the kinds of facts that may be judicially noticed:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

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. An instruction on judicial notice should be given at the time that notice is taken. It may also be given at the time the jury is charged at the close of the evidence.

Rule 201(g) directs that "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." In this regard, the rule for criminal cases differs from the rule for civil cases, in which the jury has no discretion to reject judicially noticed facts. The Third Circuit has noted with approval instructions that adhere to the language of the rule for criminal cases. See United States v. Mitchell, 365 F.3d 215, 251 n. 28 (3d Cir. 2004); United States v. Saada, 212 F.3d 210, 223 (3d Cir. 2000). While approving the trial court’s instructions in both Mitchell and Saada, the court did not include the text of either instruction. As a result, it is not clear whether the court tracked the language of the rule exactly.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.05
Audio/Video Recordings - Consensual

You are about to hear (audio)(video) recordings of conversations with the defendant(s) made without (his)(her)(their) knowledge. These recordings were made with the consent and agreement of (name), one of the other parties to the conversations.

The use of this procedure to gather evidence is lawful and the recordings may be used by either party.

See Sand § 5-10.

This instruction addresses the jurors’ possible concern about the legality of recordings offered in evidence. It should not be given routinely, but should be given if there is reason to believe the jury would be concerned and if it is requested by either party.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.06
Audio/Video Recordings – Non-consensual (Wiretaps)

You are about to hear recordings of conversations with the defendant(s) which were made without the knowledge of the parties to the conversations, but with the consent and authorization of the court. These recordings, sometimes referred to as wiretaps, were lawfully obtained.

The use of this procedure to gather evidence is lawful and the recordings may be used by either party.

See Sand § 5-11.

This instruction addresses the jurors’ possible concern about the legality of recordings offered by the government. It should not be given routinely, but should be given if there is reason to believe the jury would be concerned and if it is requested by either party.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.9 Electronic Recordings

You are about to hear (audio)(video) recordings that were received in evidence, and you will be given written transcripts of the recordings.

Keep in mind that the transcripts are not evidence. They are being given to you only as a guide to help you follow what was being said. The recordings themselves are the evidence. If you notice any differences between what you hear in the recordings and what you read in the transcripts, you must rely on what you hear, not what you read. And if you cannot hear or understand certain parts of the recordings, you must ignore the transcripts as far as those parts are concerned.

[The transcripts name the speakers. But remember, you must decide who is actually speaking in the recording. The names on the transcript are used simply for your convenience.]

See Sixth Circuit § 7.17 and Eighth Circuit § 2.06. For variations, see 1A O’Malley, § 14.09, Sand § 5.04, First Circuit § 2.08, Fifth Circuit § 1.42, Seventh Circuit § 3.17, and Ninth Circuit § 2.7.

Audio and video recordings are generally admissible "‘[u]nless the unintelligible portions of the tapes are so substantial as to render the recordings as a whole untrustworthy.’" United States v. Salvo, 34 F.3d 1204, 1220 (3d Cir. 1994), citing United States v. Arango-Correa, 851 F.2d 54, 58 (2d Cir. 1988) (quoting Monroe v. United States, 234 F.2d 49, 55 (D.C. Cir.), cert. denied, 352 U.S. 873 (1956)).

The trial judge has discretion to admit transcripts for use with the recordings. In United States v. Adams, 759 F.2d 1099, 1115 (3d Cir.), cert. denied, 474 U.S. 906 (1985), the court upheld the admission of a tape recording and transcript, noting that "the judge instructed the jury that the tape recording controlled over the transcript in case of error or ambiguity." See also Salvo, 34 F.3d at 1220 (concluding that trial court’s instruction that tape controlled and transcript was not evidence protected against unfairness).

This instruction should be given when the recording is played. Instruction 4.06 (Audio/Video Recordings - Transcripts) should be included in the final charge.

The bracketed paragraph should be included only if there is a dispute about the identity of the speakers in the recording . Government of the Virgin Islands v. Martinez, 847 F.2d 125, 128 (3d Cir. 1988). When such a dispute arises, the preferred solution is to use neutral designations, such as "Speaker 1" and "Speaker 2" rather than names. Id. at 129.

If defense counsel contests the accuracy of a government transcript, the court should consult with the attorneys to determine how to handle the question of the accuracy of the transcript. In some cases, the defense may prefer to address the question entirely on cross-examination and will not offer a defense transcript. If the defense offers its own transcript, the attorneys may request that the jurors have both the defense transcript and the prosecution transcript as they listen to the recording. Alternatively, the defense may prefer to have the entire recording or portions of the recording replayed for the jury during the defense case. If the court admits two alternative transcripts, the court should give the jury an appropriately adapted version of the following instruction, based on the instruction suggested by Sand in the notes to Instruction 5-9:

You have been handed two separate transcripts. One contains the government's interpretation of what appears on the tape recording; the other contains the defense interpretation. Both of these versions of the transcript have been given to you as a guide to assist you in listening to the tapes. Neither transcript has been received in evidence. Rather, it is the tape recording which is the evidence and the transcripts are only guides. Therefore, you must listen to the tapes themselves very carefully. You alone should make your own interpretation of what appears on the tapes from what you hear. You may use both the government version and the defense version of the transcripts to assist you in this task. If you think you hear something differently than the government or the defense has interpreted on their versions of the transcripts, then you are to follow your own interpretation. You may agree partially with each, and you may accept those portions you agree with and reject those portions you disagree with. You need not select between the two versions, and you may come up with your own findings of what appears on the tapes.

You, the jury, are the sole judges of the facts.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

24.2.7.3 Transcript Of Foreign Language Recording

25.9 Electronic Recordings

You are about to listen to (an audio)(a video) recording in (language used). 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 recording.

Although some of you may know the (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.

This instruction is derived from Ninth Circuit § 2.8.

This instruction should be given when recordings in a foreign language are admitted.

When foreign language recordings are introduced, the court should first encourage the parties to agree on a transcript. United States v. Zambrana, 841 F.2d 1320, 1335-36 (7th Cir. 1988). If the parties cannot agree on a transcript, then each party may produce its own version either of the entire transcript or of disputed portions of the transcript and also present evidence to establish the accuracy of its transcript. In addition, each party may introduce evidence to challenge the accuracy of the other party’s transcript. Zambrana, 841 F.2d at 1336. In the event of a dispute, the court should add the following language to the instruction:

Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript is an accurate translation of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.

See United States v. Gutierrez, 367 F.3d 733, 736 (8th Cir. 2004); Seventh Circuit, § 3.18.

The Committee on Federal Criminal Jury Instructions of the Seventh Circuit also suggests that, if the jury views a visual recording of the conversation, the court should instruct the jury that "You may consider the actions of a person, the facial expressions and lip movements that you can observe on videotapes to help you to determine the identity of speakers." See Seventh Circuit, § 3.18 (comment).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.09
Opinion Testimony (Expert Witnesses)

Chapter 29: Expert Opinion Testimony

The rules of evidence ordinarily do not permit witnesses to state their own opinions about important questions in a trial, but there are exceptions to these rules.

You will hear testimony from (state the name of the person(s) who will offer an opinion). Because of (his)(her)(their) knowledge, skill, experience, training, or education in the field of (state the witness(es)’s field), (Mr.)(Ms.)(Dr.) (name) will be permitted to offer (an) opinion(s) in that field and the reasons for (that)(those) opinion(s).

The opinion(s) (this)(these) witness(es) state(s) should receive whatever weight you think appropriate, given all the other evidence in the case. In weighing this opinion testimony you may consider the witness' qualifications, the reasons for the witness' opinions, and the reliability of the information supporting the witness' opinions, as well as the other factors I will discuss in my final instructions for weighing the testimony of witnesses. You may disregard the opinion(s) entirely if you decide that (Mr.)(Ms.)(Dr.) (name)’s opinion(s) (is)(are) not based on sufficient knowledge, skill, experience, training, or education. You may also disregard the opinion(s) if you conclude that the reasons given in support of the opinion(s) are not sound, or if you conclude that the opinion(s) (is)(are) not supported by the facts shown by the evidence, or if you think that the opinion(s) (is)(are) outweighed by other evidence.

See Fed. R. Evid. 702; 1A O’Malley § 14.01. For model or pattern instruction from other Circuits regarding expert or opinion testimony in criminal cases, see First Circuit § 2.06; Fifth Circuit § 1.17; Sixth Circuit § 7.03; Eighth Circuit § 4.10; Ninth Circuit § 4.17; Eleventh Circuit § 7.

This instruction should be given at the time a witness is qualified to give an opinion. For a comparable instruction that should be given in the final instructions to the jury, see 4.08 (Opinion Evidence (Expert Witnesses)). This instruction should only be used when an "expert" witness is about to offer opinion testimony. When lay witnesses are permitted to offer an opinion, use Instruction 4.09. If both expert and lay witnesses are permitted to give opinion testimony, both sets of instructions should be given.

These instructions avoid labeling the witness as an "expert." If the court refrains from designating the witness as an "expert" this will "ensure[] that trial courts do not inadvertently put their stamp of authority" on a witness’ opinion, and will protect against the jury’s being "overwhelmed by the so-called ‘experts’." Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154 F.R.D. 537, 559 (1994). See also Advisory Committee Note to Federal Rule of Evidence 702 (2000) (cautioning against instructing the jury that the witness is an "expert").

Before the beginning of trial, the judge should discuss with counsel that they should also avoid using the word "expert" to refer to the witnesses. However, if counsel refers to witnesses as "experts," the trial judge should modify the instruction by telling the jury what an "expert" is. Therefore, the court should include, after the first paragraph of the model instruction set forth above, the following additional paragraph:

The defendant’s lawyer/the prosecutor called (Mr.)(Ms.)(Dr.)(name) an expert witness. Someone who is called an expert witness is simply a witness who, because of his or her knowledge, skill, experience, training, or education, may have become knowledgeable in some technical, scientific, or specialized field and therefore is permitted to state an opinion about that field. You should not give any greater weight or credit to (Mr.)(Ms.)(Dr.)(name)’s testimony merely because he or she was called an expert witness by the lawyers.

See 1A O’Malley, § 14.01, 248-49.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Chapter 30: Lay Opinion/Non Expert Opinion Testimony

Witnesses are not generally permitted to state their personal opinions about important questions in a trial. However, a witness may be allowed to testify to his or her opinion if it is rationally based on the witness’ perception and is helpful to a clear understanding of the witness' testimony or to the determination of a fact in issue.

In this case, I am permitting (name) to offer (his)(her) opinion based on (his)(her) perceptions. The opinion of this witness should receive whatever weight you think appropriate, given all the other evidence in the case and the other factors I will discuss in my final instructions for weighing and considering whether to believe the testimony of witnesses.

Federal Rule of Evidence 701 provides that "if the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701.

Whether to give this instruction on lay witness opinion testimony is within the trial judge’s discretion. Ordinarily, the instruction will not be necessary, but is provided in the event one of the lawyers requests it or the trial judge otherwise considers it necessary in the case on trial. The instruction should not be given routinely for "run of the mill" lay opinion testimony, such as "he looked angry" or "she was driving fast." The instruction should be given when the lay opinion is more like an "expert" opinion or when there is also expert opinion testimony given in the same trial, to avoid the confusion that might result because Instruction 2.09 (Opinion Evidence (Expert Witnesses)) states that opinion testimony is generally not permitted.

If the trial judge decides that an instruction on lay opinion testimony is necessary, the above instruction can be given at the time the witness is giving his or her opinion testimony. For a comparable instruction that should be given in the final instructions to the jury, see Instruction 4.09 (Opinion Evidence (Lay Witnesses) (FRE 701)).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Chapter 26: Limited Purpose Evidence

In certain instances evidence may be admitted only for a particular purpose and not generally for all purposes.

[You heard evidence that (name of declarant) told the Defendant that (name of victim) was looking for her and had a gun. That evidence was admitted only to explain Defendant’s state of mind when she later encountered (name of victim), and you may consider that evidence only in determining Defendant’s state of mind and the reasonableness of Defendant’s actions. You may not, however, use (name of declarant)’s statement as evidence that (name of victim) actually was looking for Defendant or that (name of victim) actually had a gun.]

For the limited purpose for which this evidence has been received you may give it such weight as you feel it deserves. You may not, however, use this evidence for any other purpose not specifically mentioned.

This instruction is derived from 1A O’Malley § 11.09.

If evidence is admitted for a limited purpose and one of the parties requests a limiting instruction, the court should inform the jury of the limited purpose of the evidence at the time it is introduced. This instruction provides a general template that can be adapted to the specific situation; the bracketed language is an example of a description of evidence and its limited role in the case. If the evidence is admitted only against one defendant in a multiple defendant trial, the court should give Instruction 2.12 (Limited Admissibility: Evidence Admitted Against Only One Defendant) instead. In addition, some specific types of evidence are dealt with in specific instructions. See, e.g., Instruction 2.23 (Defendant’s Prior Acts (FRE 404(b)). See generally United States v. Butch, 256 F.3d 171, 176 n.4 (3d Cir. 2001)(citing with approval trial court’s instruction, based on 1A O’Malley § 11.09, limiting consideration of other act evidence admitted under FRE 404(b) for limited purpose).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Chapter 26: Limited Purpose Evidence

You (are about to hear)(just heard) (describe testimony or exhibit). You can consider (this testimony)(this exhibit) only in the case against (name). You must not consider that evidence in the case against the other defendant(s). Each defendant is entitled to have (his)(her) case decided just on the evidence which applies to (him)(her).

This instruction is derived from Eighth Circuit § 2.14.

If requested, this instruction should be given during the trial of multiple defendants to limit the jury’s consideration of evidence admitted against only one defendant. See generally United States v. Butch, 256 F.3d 171, 176 n.4 (3d Cir. 2001)(citing with approval trial court’s instruction, based on 1A O’Malley § 11.09, limiting consideration of other act evidence admitted under FRE 404(b) for limited purpose).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You have heard evidence (through a stipulation) that the defendant was convicted before this incident in (name of court; e.g., a court of the Commonwealth of Pennsylvania) of a crime punishable by imprisonment for a term exceeding one year.

This prior conviction has been brought to your attention only because it tends to establish one of the elements of the crime of possession of a firearm by a convicted felon as set forth in the indictment, specifically, that the defendant had a prior felony conviction. You are not to speculate as to the nature of the conviction. You may not consider the prior conviction in deciding whether (name of defendant) was in knowing possession of the gun that (he)(she) is charged in this case with possessing, which is a disputed issue in this case.

The fact that the defendant was found guilty of another crime on another occasion does not mean that (he)(she) committed this crime on (date of offense charged in indictment), and you must not use (his)(her) guilt of the other crime as proof of the crime charged in this case except for the one element of this crime which I have mentioned. You may find the defendant guilty of this crime only if the government has proved beyond a reasonable doubt all of the elements of this crime and that the defendant committed it.

This instruction is based on the instruction approved in United States v. Belk, 346 F.3d 305, 309 n.4 (2d Cir. 2003).

This instruction should be given when the government introduces evidence that the defendant is a convicted felon as required to prove a violation of 18 USC 922 (g). Section 922(g) provides:

It shall be unlawful for any person -

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

* * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In order to establish the defendant’s guilt under this section, the government must prove beyond a reasonable doubt that the defendant was convicted of a felony. Evidence of the prior conviction tends to prejudice the defendant, generating a risk that the jury will conclude that the defendant is more likely to have committed the offense(s) for which the defendant is on trial simply because the defendant has previously been convicted. Despite this risk of prejudice, the government must be allowed to prove the felony conviction.

When the defendant is charged only with a violation of Section 922(g), the court should give this curative instruction when the evidence of the prior conviction is introduced; Instruction 6.18.922G-4 (Evidence of Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) should be included in the final charge to the jury. The defendant is not entitled to bifurcation of the issues. See United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995).

If the felon in possession charge under § 922(g) is joined with other charges, the court should bifurcate the trial of the 922(g) count. In the bifurcated trial, the jury should first hear evidence and deliberate concerning the other counts of the indictment and make a factual determination of whether the defendant was in knowing possession of the firearm. In the second phase of the trial, the jury hears evidence of the defendant's criminal record and deliberates concerning the count charging a violation of Section 922(g). See, e.g., United States v. Joshua, 976 F.2d 844 (3d Cir. 1992).

If the court should decide for some reason not to bifurcate the trial, the Third Circuit has expressed a preference for severance of the felon in possession charge, unless the evidence of the prior conviction would be admissible even if the counts were tried separately. See United States v. Busic, 587 F.2d 577, 585 (3d Cir. 1978). The defendant is not entitled to severance if the trial court bifurcates the trial. See United States v. Joshua, 976 F.2d 844 (3d Cir. 1992).

There are additional steps that the court should take to reduce the prejudice. In Old Chief v. United States, 519 U.S. 172 (1997), the Supreme Court recognized the risk of prejudice and held that, where the defendant offered to stipulate that he was a convicted felon, it was reversible error to admit evidence of the name and nature of the offense of which the defendant was convicted. In a bifurcated trial, the prior felony conviction should not be a subject of voir dire. However, in a non-bifurcated trial, the court should address the prior conviction in voir dire. In United States v. Smith, 104 Fed.Appx. 266, 275, 2004 WL 1778268 (3rd Cir. 8/10/2004), a non-precedential decision, the Third Circuit noted that "careful voir dire can help insure that jurors who would be influenced by knowledge of the element of a prior felony conviction are not chosen for the jury."

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.14
Stricken Testimony, Disregard

24.3.3 What Is Not Evidence: Excluded, Stricken Or Withdrawn Matters

I have ordered (describe testimony or exhibits) stricken from the record. This is not proper evidence in the case. You must disregard it entirely. Do not consider (this testimony)(this exhibit) in reaching your decision.

This instruction should be given when testimony or exhibits are stricken from the record after they have been presented to the jury.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

26.4 Prior Consistent Statements

You (just heard)(are about to hear) evidence that, before (he)(she) testified in this trial, (name) made statements that were the same as, or similar to, what (he)(she) said in the courtroom. You may consider evidence of this statement in determining the facts of this case. In addition, this evidence may help you decide whether you believe (name)’s testimony. If (name) said essentially the same thing before trial, it may be reason for you to believe (name)’s testimony in court.

This instruction is based on Federal Judicial Center § 34. A prior consistent statement can be offered as substantive evidence under Rule 801(d)(1)(B) of the Federal Rules of Evidence if it "is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." This instruction informs the jurors that they may use the prior consistent statement both to decide the case and to bolster the in-court testimony.

Caution: This instruction should not be given routinely. The prior consistent statements are admitted without limitation, so the jury can consider them in any way it deems relevant. The significance of the prior consistent statements should generally be left to argument of counsel. However, this instruction should be included if prior inconsistent statements are admitted solely to impeach in the same trial as the prior consistent statements. This instruction is then necessary to distinguish the unlimited role of prior consistent statements from the limited role of prior inconsistent statements admitted only to impeach. See Instruction 2.16 (impeachment of Witness - Prior Inconsistent Statement for Credibility Only).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.16
Impeachment of Witness – Prior Inconsistent Statement for Credibility Only

26.3 Prior Inconsistent Statements

You have heard the testimony of (name). You have also heard that before this trial (he)(she) made a statement that may be different from (his)(her) testimony in this trial. It is up to you to determine whether this statement was made and whether it was different from (his)(her) testimony in this trial. This earlier statement was brought to your attention only to help you decide whether to believe (his)(her) testimony here at trial. You cannot use it as proof of the truth of what the witness said in the earlier statement. You can only use it as one way of evaluating (name)’s testimony in this trial.

[You have also heard evidence that (this witness)(certain witnesses) made statements before this trial that were (describe requirement; e.g., made under oath, given before the grand jury). When a statement is (describe condition; made under oath, made before the grand jury), you may use it not only to help you decide whether you believe the witness’ testimony in this trial but also as evidence of the truth of what the witness said in the earlier statement. But when a statement is (describe condition; e.g., not made under oath, not given before the grand jury), you may use it only to help you decide whether you believe the witness’ testimony in this trial and not as proof of the truth of what the witness said in the earlier statement.]

This instruction is based on Sixth Circuit § 7.04 and Seventh Circuit § 3.09. For variations, see Sand § 7-19, First Circuit § 2.02, Fifth Circuit § 1.10, Eighth Circuit § 3.04, and Eleventh Circuit § 6.1.

Prior inconsistent statements of witnesses may be admitted for two different purposes. First, a witness’ statements may be admitted substantively – to prove the truth of the matters asserted. Second, a witness’ statements may be admitted for the limited purpose of impeaching the witness.

Rule 801(d)(1)(A) of the Federal Rules of Evidence allows a prior inconsistent statement to be used substantively as well as to impeach if it was "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." If the prior statement falls within Rule 801(d)(1)(A), this instruction should not be given. A key characteristic of statements falling within Rule 801(d)(1)(A) is that they were made under oath. However, even a sworn statement does not fall within the rule and may be used only to impeach if it was not given at a proceeding.

Prior inconsistent statements that do not fall within the rule may still be admissible to impeach the witness. Such a statement is not hearsay because it is not admitted for the truth of the matter asserted, but only for the purpose of impeaching the witness. This instruction should be given to inform the jury of this limited purpose. The defendant is entitled to a limiting instruction at the time of the testimony as well as at the conclusion of the trial. United States v. Palumbo, 639 F.2d 123, 128 (3d Cir. 1981); 4.22 (Impeachment of Witness - Prior Inconsistent Statement for Credibility Only). The court should give the instruction if the defendant requests it. Failure to give the instruction is not necessarily plain error. United States v. Corson, 389 F.2d 563 (3d Cir. 1968). To minimize uncertainty concerning the role of inconsistent statements and the need for an instruction, the court may want to advise counsel at the beginning of the trial that they must request a limiting instruction at the time a statement is admitted if they want the jury informed of the limited purpose of the statement.

The bracketed language should be used if both types of prior inconsistent statements have been admitted in the trial – some only to impeach and others for substantive use as well. The court may want to include the bracketed language to emphasize the distinction for the jury.

Some judges may prefer the following variation, based on 1A O’Malley § 15.06:

The testimony of a witness may be attacked by showing that the witness previously made statements which are different than the witness’ testimony here in court. The earlier statements are admissible only to discredit or impeach the credibility of the witness and not to establish the truth of these earlier statements made somewhere other than here during this trial. You must determine whether to believe a witness who has made prior inconsistent statements.

[If a witness is shown to have knowingly testified falsely concerning any important or material matter, you obviously have a right to distrust the testimony of the witness concerning other matters. You may reject all of the testimony of that witness or give it such weight as you determine it deserves].

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

251.4.3.2 Rebuttal Of Defendant's Good Character Evidence With "Have You Heard" Questions

If character witness testified to reputation: You heard (name of witness) testify about the defendant's reputation for (insert character trait covered by testimony). On cross-examination of (name of witness), the prosecutor asked (him)(her) some questions about whether (he)(she) had heard that (briefly describe the subject of the cross-examination on the character trait, e.g., defendant was convicted of fraud on an earlier occasion). The prosecutor was allowed to ask these questions only to test whether (name of witness) was familiar with the reputation of the defendant in the community. This is not evidence that the acts described in these questions actually occurred.

You may not use the information developed by the prosecutor on this subject for any other purpose. Specifically, you may not use this information to conclude that the defendant committed the act(s) charged in the indictment or as proof that the defendant has a bad character or any propensity to commit crimes.

If character witness testified to opinion: You heard (name of witness) testify about the defendant's character for (insert character trait covered by testimony). On cross-examination of (name of witness), the prosecutor asked (him)(her) some questions about whether (he)(she) knew that (briefly describe the subject of the cross-examination on the character trait, e.g., defendant was convicted of fraud on an earlier occasion). The prosecutor was allowed to ask these questions only to test whether (name of witness) had a good basis for (his)(her) opinion of the defendant’s character. This is not evidence that the acts described in these questions actually occurred.

You may not use the information developed by the prosecutor on this subject for any other purpose. Specifically, you may not use this information to conclude that the defendant committed the act(s) charged in the indictment or as proof that the defendant has a bad character or any propensity to commit crimes.

This instruction is derived from 1A O’Malley § 11.15, Sand § 5-16, and Eighth Circuit § 2.10.

This instruction should be given to the jury at the time of the cross-examination when the prosecutor is permitted to cross-examine the defendant’s character witness concerning prior instances of the defendant’s conduct; Instruction 4.39 (Defendant’s Character Evidence) should be included in the final charge to the jury.

Under Rule 404(a) of the Federal Rules of Evidence, a defendant is permitted to introduce evidence of good character to support the inference that the defendant did not commit the offense charged. Instruction 2.15 (Prior Consistent Statements (FRE 801(d)(1)(B))) describes the role of that evidence. Rule 405(a) permits the prosecutor to cross-examine the defendant’s character witness concerning specific instances of the defendant’s conduct relating to the character trait at issue. The rules thus continue the common law practice discussed in Michelson v. United States, 335 U.S. 469 (1948), but with one difference: opinion evidence, which was prohibited at common law, is allowed under the rules. Under the Federal Rules of Evidence, the character witness may testify to either reputation or opinion.

A reputation witness testifies to the defendant’s reputation for a specific trait in a specific community, based on conversations with others concerning the defendant. See Michelson v. United States, 335 U.S. 469 (1948). Cross-examination of a reputation witness should focus on what the witness has heard and may inquire "about conduct, and even about charges, which may have come to the attention of the relevant community." See United States v. Curtis, 644 F.2d 263, 268 (3d Cir. 1981).

An opinion witness testifies to the witness’ own opinion of the defendant’s character for a specific trait based on that witness’ experience with the defendant. Cross-examination of an opinion witness should focus on what the witness knows and will test the accuracy of and basis for the favorable opinion. In United States v. Curtis, 644 F.2d 263, 268 (3d Cir. 1981), the Third Circuit noted that, when the character witness testifies to an opinion, "relevant cross examination is only that which bears on the fact or factual basis for formation of the opinion."

The cross-examination permitted by Rule 405(a) often focuses on prior bad conduct by the defendant and therefore injects a risk of unfair prejudice. The Supreme Court noted in Michelson:

The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.

Id. at 479. The trial court has broad discretion concerning the cross-examination of character witnesses. United States v. Boone, 279 F.3d 163, 175 (3d Cir. 2002). Correspondingly, the trial judge plays an important role in assuring the fairness of the cross-examination. In Michelson, the Court remarked that the discretion to allow relevant cross-examination "is accompanied by heavy responsibility on trial courts to protect the practice from any misuse." Id. at 480. The Court outlined the safeguards to be taken by the trial court. Id. at 221-22. The trial court must ensure that the question is fair, that it rests on a factual foundation, and that it is relevant to the character trait addressed by the defendant’s witness. Id. at 221-22. Of course, no evidence may be admitted for the jury establishing that the act occurred.

The Court in Michelson also emphasized the importance of limiting instructions directing the jury to consider any prior acts brought out in cross-examination only for purposes of assessing the witness' opinion of the defendant’s character trait. Id. at 472 n.3. In Government of Virgin Islands v. Roldan, 612 F.2d 775, 781 (3d Cir. 1979), the Third Circuit stated, "the defendant is entitled to a limiting instruction to the effect that the prior bad act testimony does not bear on the defendant’s propensity to commit such crimes again." See also United States v. Apfelbaum, 621 F.2d 62, 64 (3d Cir. 1980)(emphasizing importance of limiting instructions). In Government of Virgin Islands v. Roldan, however, the defendant had not requested a limiting instruction, and the Third Circuit held that the trial court did not commit plain error by failing to give an instruction.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction

Alternative 1(to be given if the witness admits the bad act): You have heard evidence that (name), a witness, committed (describe bad act inquired about during cross-examination). You may consider this evidence, along with other pertinent evidence, only in deciding whether to believe (name) and how much weight to give (his)(her) testimony.

Alternative 2 (to be given if the witness denies the bad act): You heard (name of lawyer) ask (name of witness) whether (he)(she) committed (describe bad act inquired about during cross-examination), and (he)(she) denied it. I remind you that questions by the lawyers are not evidence. It is the answer of the witness that provides evidence. There is therefore no evidence that (name of witness) committed (describe act).

This instruction is derived from Ninth Circuit § 4.8.

Rule 608(b) of the Federal Rules of Evidence provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness . . . .

Rule 608(b) governs only when the conduct that is the subject of the cross-examination or extrinsic evidence is relevant only to establish the witness’ untruthful character. If the evidence is offered to establish something else, such as bias, incompetency, or compromised ability to perceive or recall the events, Rule 608 does not govern. Instead, the court should evaluate the propriety of questions and the admissibility of extrinsic evidence under Rules 402 and 403. United States v. Abel, 469 U.S. 45 (1984).

If the court permits cross-examination concerning prior conduct that suggests untruthful character under Rule 608(b), the court should instruct the jury concerning the cross-examination. The appropriate instruction depends on whether the witness admits or denies the prior conduct in response to the questions asked on cross-examination. Alternative 1 should be given if the witness admits the conduct. This instruction merely directs the jury to consider the prior acts in assessing the witness’ credibility. However, if the witness denies the conduct, the court should give Alternative 2, directing the jury to draw no inference from the asking of the question. Rule 608(b) precludes the introduction of extrinsic evidence to establish the prior act, so the witness’ denial concludes the inquiry. See United States v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989); United States v. Anderson, 859 F.3d.1171, 1178 (3d Cir. 1988).

Rule 608(b) permits inquiry only concerning prior acts that are probative of untruthful conduct. To fall within the rule, the acts "will normally involve dishonesty or false statement as employed in Rule 609(a)(2)." Graham § 608.4 at 146-47. The Third Circuit has held that Rule 609(a)(2) applies only to crimes that "bear on the witness’ propensity to testify truthfully." See United States v. Johnson, 388 F.3d 96 (3d Cir. 2004). In United States v. Irizarry, 341 F.3d 343 (3d Cir. 2003), the court noted that the trial court properly allowed the prosecutor to cross-examine the defendant about his possession of identification in someone else’s name and about his possession of blank Social Security cards. Id. at 312. The Third Circuit stated that the evidence tended to show deceit and therefore fell within Rule 608(b).

The Third Circuit has also held that the decision whether to allow cross-examination under Rule 608(b) falls within the trial court’s discretion. See United States v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989). In Johnson v. Elk Lake School District, 283 F.3d 138 (3d Cir. 2002), the court held that the trial court acted within its discretion when it precluded plaintiff’s counsel from cross-examining a key witness concerning a lie on his resume. Id. at 145 n. 2. The court noted that the trial court’s ruling was reviewed under an abuse of discretion standard with "substantial deference" to the trial court. The court stated that "the trial court was within its discretion to conclude that Stevens' lying on his resume, although duplicitous and wrong, was not so indicative of moral turpitude as to be particularly probative of his character for untruthfulness." Id. This result is criticized in Graham who states that "the exercise of discretion should very rarely if ever be exercised to exclude an undisputed act of ‘lying’" such as that in Johnson. Graham § 608.4 n. 5.

The inquiry under Rule 608(b) should focus on the actual acts that suggested untruthfulness and not any third party action, such as suspension from a job, that resulted from those acts. See United States v. Davis, 183 F.3d 231, 257 n. 12 (3d Cir. 1999). The court may preclude inquiry concerning prior acts if they are remote in time. See Johnson v. Elk Lake School District, 283 F.3d 138, 145 n.2 (3d Cir. 2002).

In addition, cross-examination under Rule 608(b) may be limited by the Fifth Amendment. Rule 608(b) provides that no witness, including the accused, waives the Fifth Amendment privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. The Third Circuit appears not to have addressed this aspect of the rule.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.19
Impeachment of Witness – Prior Conviction (FRE 609)

27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction

You are about to hear evidence that (name) has previously been convicted of a crime (punishable by more than one year in jail)(involving dishonesty or false statement). You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe (name) and how much weight to give to (name)’s testimony.

This instruction is derived from Ninth Circuit § 4.8 and First Circuit § 2.03. For variations, see 1A O’Malley § 15.07, Sand § 7-12, Fifth Circuit § 1.12, Sixth Circuit § 7.05B, Seventh Circuit § 3.11, Eighth Circuit § 2.18, and FJC § 30.

This instruction should be given when a witness is to be impeached under Rule 609 of the Federal Rules of Evidence with evidence of a prior conviction. This instruction merely directs the jurors to consider the prior conviction in assessing credibility.

Rule 609 governs the admissibility of prior convictions to impeach. As amended effective December 1, 2006, Rule 609(a) provides:

(a) General rule.--For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Rule 609 governs the admissibility of prior convictions to impeach. Rule 609(a)(1) permits impeachment of witnesses other than the accused by convictions of crimes punishable by death or imprisonment greater than one year subject only to balancing under Rule 403. Rule 609(a)(2) permits impeachment by conviction of crimes involving false statement or dishonesty; if the crime falls within (a)(2), the trial court must admit the prior conviction. See United States v. Wong, 703 F.2d 65, 68 (3d Cir.), cert. denied, 464 U.S. 842 (1983). Rule 609(a)(2) is interpreted narrowly and does not include crimes such as theft that do not "bear on the witness’ propensity to testify truthfully." See United States v. Johnson, 388 F.3d 96 (3d Cir. 2004)(quoting from the Conference Committee notes). As amended, the rule precludes inquiry into the manner in which a crime was committed to establish that it was a crime of dishonesty or false statement. Instead, the nature of the crime must be readily determined.

If more than ten years has passed since the date of conviction or release, the prior conviction is not admissible unless the proponent gives written notice and "the court determines, in the interests of justice, that the probative value of the conviction . . . substantially outweighs its prejudicial effect." FRE 609(b).

There is no clear authority requiring this instruction. However, the court should give the instruction if requested. It is not clear whether failure to give the instruction will be plain error if the defendant does not request it. Graham, Handbook of Federal Evidence § 609.6 at pp. 227-28 (5th ed. 2001).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

At the beginning of trial, I ordered that no witness (other than (names of witnesses permitted in courtroom during testimony)) may (hear)(discuss)(review) the testimony of another witness before (he)(she) testifies (himself)(herself). The purpose of this order was to prevent the testimony of one witness from influencing the testimony of another witness. (Name of witness) violated this order. In evaluating (name of witness)’s testimony, you may consider the fact that (name of witness) (describe violation, e.g., remained in the courtroom during the testimony of (name of other witness)).

This instruction may be given if a witness has violated the court’s sequestration order. Rule 615 of the Federal Rules of Evidence provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

Rules permitting sequestration of witnesses are intended to prevent witnesses from coordinating their testimony and to allow the parties to detect falsehood by "exposing inconsistencies in testimony." Government of the Virgin Islands v. Edinborough, 625 F.2d 472, 473 (3d Cir. 1980).

As the Third Circuit pointed out in Pickel v. United States, 746 F.2d 176, 182 (3d Cir. 1984), the rule "does not explicitly address the question of sanctions for non-compliance." The court went on to note that "case law . . . suggests three appropriate forms of sanctions: (1) holding the witness in contempt, (2) comment by the court on the violation and its effect on weight or credibility of the witness’ testimony, and (3) barring or striking the witness’ testimony." 746 F.2d at 182 (citations omitted). The court also noted that dismissal might be appropriate, but only in rare cases and only after consideration of lesser sanctions. 746 F.2d at 182. Determination of the appropriate sanction lies in the court’s discretion. Wright & Miller, Federal Practice and Procedure § 6246. In Pickel, however, the Third Circuit concluded that the trial court abused its discretion when it quashed the offending party’s summons. 746 F.2d at 182-83.

The Third Circuit has not approved an instruction commenting on a violation of a sequestration order. In United States v. Ramos-Lopez, 1988 U.S. App. LEXIS 7378 (3d Cir. 1988), a non-precedential decision, Judge Becker, dissenting from the holding that defendant’s counsel’s handling of a sequestration violation was not ineffective, commented "I would have expected competent counsel to have sought comment by the court to the jury in the charge, explaining that the jury, in assessing the agent's credibility, could consider the fact that the agent remained in the room during (and probably heard) defendant's testimony." Id. at *11. In United States v. Jimenez, 780 F.2d 975, 981 (11th Cir.1986), the Eleventh Circuit commented, "The district court adequately responded to the possibility of prejudice [from the violation of the sequestration order] by specifically instructing the jury that a violation of the rule should be considered in evaluating Agent Robertson's credibility as a witness." See also Hill v. Porter Memorial Hospital, 90 F.3d 220, 224 (7th Cir. 1996).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.16 Exercise Of Privilege By Witness

No instruction recommended.

Witnesses other than the defendant sometimes claim Fifth Amendment protection from compelled self-incrimination and decline to answer questions posed to them in the course of a trial. Generally, an attorney or the witness raises the issue, but in some instances the court may identify the problem and raise it sua sponte. When such an issue arises, the court should take protective steps. First, the court should determine whether the Fifth Amendment claim is valid. Second, the court should insulate the jury from the witness’ assertion of the Fifth Amendment privilege by having the witness assert the privilege outside the presence of the jury. Third, if the witness exercises the privilege in the jury’s presence, the court should give the jury a cautionary instruction.

First, the court should evaluate the validity of the witness’ claim. Section 5.03 of the Benchbook for U.S. District Court Judges (March 2000 rev.) suggests the proper procedure. The Benchbook suggests that the judge should excuse the jury and then engage in a colloquy with the witness. The court must determine whether "the witness has reasonable cause to believe that answering the particular question might tend to incriminate him or her." Benchbook, Section 5.03. See also United States v. Hubbell, 530 U.S. 27 (2000); Hoffman v. United States, 341 U.S. 479 (1951).

The Benchbook does not detail a suggested colloquy but cautions the court "not to interrogate the witness about the claim in such a way as to force the witness to surrender the privilege in order to claim it." Id. at 147. In addition, the court should not unduly pressure the witness; a colloquy that exerts undue pressure on a defense witness and persuades the witness not to testify violates the defendant’s right to due process. See Webb v. Texas, 409 U.S. 95 (1972).

In United States v. Serrano, 406 F.3d 1208, 1213-14 (10th Cir. 2005), the court approved the following colloquy, which followed the prosecutor’s suggestion that the defendant’s witness should be advised of his Fifth Amendment privilege against compelled self-incrimination:

THE COURT: All right. You may be asked a number of questions here by one of the attorneys that may require you to give testimony about things that you know concerning the shotgun. The government has indicated to me that you have given a statement concerning the sawed-off shotgun. You may be asked questions about matters concerning yourself and that shotgun. And before I permit any questioning about the shotgun and any involvement you may have had with that weapon, if any--I don't know, I don't know what the statements are at this point because the questions have not yet been asked--I need to ask you if you have talked to a lawyer about any of your constitutional rights, specifically the right against self-incrimination?

THE WITNESS: No, ma'am.

THE COURT: All right. I must advise you that a person such as yourself who is now a witness having been sworn to give testimony in this case, you as a witness ha[ve] the privilege under the 5th Amendment to the United States Constitution to decline to respond to a question if that answer would tend to incriminate you. That is, if that answer would tend to indicate that you were guilty of a crime or would furnish a link in the chain of evidence that would be needed to prosecute you for a crime.

I don't know specifically what information you have and what answers you would give or statements that you would make in response to questions that may be asked of you during the course of your testimony here. However, based upon the representations made by the lawyer for the government here, there may be matters that you would be questioned about that would invoke consideration of the 5th Amendment right. And so when I say that, I ask again whether you have talked to a lawyer about any of these matters?

THE WITNESS: No, ma'am.

THE COURT: Okay. Do you wish to confer with a lawyer about this before you give any further testimony?

THE WITNESS: No, ma'am.

THE COURT: Can you explain to me why? Without going into details about the statement or anything about the gun, just tell me why you feel it is not necessary to talk to a lawyer.

THE WITNESS: Because I'm just telling the truth about everything.

THE COURT: I understand that. Has anyone advised you or talked to you about the consequences, the legal consequences that could occur if you give or make certain statements about the gun, the shotgun, and about your involvement with the shotgun?

THE WITNESS: No, ma'am.

THE COURT: All right. I'm going to--I'm not in a position to determine at this moment that this witness understands the nature of the 5th Amendment privilege. I think he needs counsel, and I'm not going to permit any further questioning until he has had an opportunity to confer with counsel....

The court then appointed an attorney to confer with the witness and recessed. The witness exercised his Fifth Amendment privilege against self incrimination after he conferred with his attorney. In Serrano, the Tenth Circuit held that this procedure did not violate the defendant’s right to present a defense. 406 F.3d at 1214.

Second, if the witness intends to assert the Fifth Amendment privilege and decline to answer specific questions, the court should have the witness invoke the privilege outside the jury’s presence. Jurors may not understand the invocation of the privilege and therefore may draw improper inferences from that invocation, possibly prejudicing the parties. See Douglas v. Alabama , 380 U.S. 415, 420 (1965); Nezowy v. United States, 723 F.2d 1120, 1124 (3d Cir. 1983); Williams v. Government of the Virgin Islands, 271 F.Supp.2d 696, 710-11( D.V.I. 2003).

Third, if the witness invokes the privilege in the jury’s presence, the court may want to give the following cautionary instruction:

You heard (witness’ name)(describe manner in which witness invoked Fifth Amendment privilege; e.g., decline to answer a question on the ground that the answer might tend to incriminate her). That was (his)(her) right under the Constitution, and you are not to draw any inference from that choice. A witness may make that choice for a number of reasons, and it would be improper for you to make any assumption or to try to guess why (witness’ name) did so. You may not consider or discuss (witness’ name)’s choice not to answer the question in deciding this case. It is not evidence.

In Lionti v. Lloyd’s Insurance Co., 709 F.2d 237, 243 (3d Cir. 1983), a witness asserted his Fifth Amendment privilege in the jury’s presence. In discussing other evidentiary issues on appeal, the Third Circuit noted that the district court had reduced the impact of the exercise of the privilege by charging as follows:

There is one more thing you should bear in mind with regard to this particular witness Brice McLane. He exercised his privilege against self-incrimination. That was his right and you are not to infer anything adverse to either the plaintiffs or anything adverse to the defendants by reason of what Brice McLane did. There may very well be a myriad of reasons why he would choose to exercise his privilege against self-incrimination, and it would be improper for you to make any assumption or to try to guess or to surmise or puzzle out why he chose to exercise that privilege. Accordingly, you are directed that Brice McLane's exercise of his constitutional privilege is to have no evidentiary value at all.

709 F.2d at 243. The Third Circuit has not addressed the question of whether such an instruction is required to be given either sua sponte or if requested. In United States v. Castillo, 615 F.2d 878 (9th Cir. 1980), the Ninth Circuit held that the trial court’s failure to give a cautionary instruction concerning invocation of Fifth Amendment privilege sua sponte was harmless error.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.22
Witness Who Has Pleaded Guilty to the Same or Related Charges

16.18 Disposition Of Charges Against Codefendant

26.2.3 Witness Who Has Pled Guilty: Limited Purpose Instruction

You have heard evidence that (name of witness) pleaded guilty to charges arising from the events that are the subject of this trial. You must not consider (name of witness)’s guilty plea as any evidence of (name of defendant)’s guilt. (Name of witness)’s decision to plead guilty was a personal decision about (his)(her) own guilt. You should disregard (name of witness)’s guilty plea completely when considering (name of defendant)’s guilt or innocence.

Instead, you may consider (name of witness)’s guilty plea only for the purpose of (select appropriate purpose):

determining how much, if at all, to rely upon (his)(her) testimony; or

foreclosing the suggestion that the party producing the witness was concealing evidence; or

rebutting the inference that the witness was not prosecuted and that (name of defendant) was singled out for prosecution; or

explaining the witness’ firsthand knowledge of the events; or

rebutting the assertion that (name of witness) was acting as a government agent while engaged in the activities that formed the basis of the guilty plea.

You should give (name of witness)’s testimony the weight you believe it deserves, keeping in mind that it must be considered with caution and great care.

This instruction is derived from Eighth Circuit § 4.04 and Ninth Circuit § 4.9.

In some cases, the jury may learn that an accomplice has pleaded guilty. The instruction suggests some of the possible reasons the witness’ plea may be relevant. The list is not exhaustive, and the court must determine on a case by case basis whether any of the reasons apply. In some cases, the court will not be able to determine the relevance of the witness’ plea when it is offered mid-trial and should therefore give only the first paragraph of the instruction.

The government may be permitted to prove the guilty plea to help the jury evaluate the witness’ credibility, to show that the defendant was not singled out for prosecution, or to explain how the witness has knowledge of the events. See United States v. Universal Rehabilitation Services, Inc., 205 F.3d 657, 667 (3d Cir. 2000)(en banc). An accomplice’s guilty plea may also serve to rebut the assertion that the accomplice was acting as a government agent while participating in the criminal conduct. See United States v. Werme, 939 F.2d 108, 113-14 (3d Cir. 1991). However, neither the witness’ guilty plea nor the plea agreement may be considered as evidence of the defendant’s guilt. See Universal Rehabilitation Services, 205 F.3d at 668; United States v. Gaev, 24 F.3d 473, 476 (3d Cir. 1994); United States v. Gambino, 926 F.2d 1355, 1363 (3d Cir. 1991).

The Third Circuit has emphasized the role of limiting instructions in controlling the prejudicial effect of the witness’ guilty plea . See Universal Rehabilitation Services., 205 F.3d at 668; Gaev, 24 F.3d at 478; Werme, 939 F.2d at 113-14 (holding failure to give limiting instruction was error, but concluding it was harmless). In Gaev, 24 F.3d at 475-76, the Third Circuit approved the court’s instructions. At the time the witness testified, the trial court gave the following instruction:

[Y]ou have just heard evidence that this witness has pled guilty to a charge of conspiring to fix prices with the defendant now on trial in this case.

I caution you that although you may consider this evidence in assessing the credibility and testimony of this witness, giving it such weight as you feel it deserves, you may not consider this evidence against the defendant on trial, nor may any inference be drawn against him by reason of this witness' plea.

In its final charge, the trial court reiterated this caution and also instructed the jury concerning the testimony of accomplices and admitted felons who had entered into plea agreements with the government. See Instruction 4.19 (Credibility of Witnesses - Witness Who Has Pleaded Guilty to Same or Related Offense, Accomplices, Immunized Witnesses, Cooperating Witnesses).

In addition, if a witness testifies who is cooperating with the government, has entered a plea agreement with the government, or has received immunity, a promise of non-prosecution or some other benefit from the government, the trial court may want to caution the jury. The credibility issues raised by the testimony of such witnesses are addressed in Instructions 4.19 (Credibility of Witnesses - Witness Who Has Pleaded Guilty to Same or Related Offense, Accomplices, Immunized Witnesses, Cooperating Witnesses) and 4.20 (Credibility of Witnesses - Testimony of Informer), to be given in the final charge to the jury.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You have heard testimony that the defendant (summarize the other act evidence).

This evidence of other act(s) was admitted only for (a) limited purpose(s). You may only consider this evidence for the purpose of deciding whether the defendant (describe the precise purpose for which the other act evidence was admitted: for example [Pick only those of the following, or other reasons, that apply],

had the state of mind, knowledge, or intent necessary to commit the crime charged in the indictment; or

had a motive or the opportunity to commit the acts charged in the indictment; or

was preparing or planning to commit the acts charged in the indictment; or

acted with a method of operation as evidenced by a unique pattern (describe); or

did not commit the acts for which the defendant is on trial by accident or mistake; or

is the person who committed the crime charged in the indictment.

You may consider this evidence to help you decide (describe how the evidence will be used to prove identity--e.g., whether the evidence that the defendant committed the burglary in which the gun that is the subject of this trial was stolen makes it more likely that the defendant was the person who placed the gun in the trunk of the car).

Do not consider this evidence for any other purpose.

Of course, it is for you to determine whether you believe this evidence and, if you do believe it, whether you accept it for the purpose offered. You may give it such weight as you feel it deserves, but only for the limited purpose that I described to you.

The defendant is not on trial for committing these other acts. You may not consider the evidence of these other acts as a substitute for proof that the defendant committed the crime(s) charged. You may not consider this evidence as proof that the defendant has a bad character or any propensity to commit crimes. Specifically, you may not use this evidence to conclude that because the defendant may have committed the other act, (he)(she) must also have committed the act(s) charged in the indictment.

Remember that the defendant is on trial here only for (state the charges briefly), not for these other acts. Do not return a guilty verdict unless the government proves the crime(s) charged in the indictment beyond a reasonable doubt.

This instruction is derived from Sixth Circuit § 7.13.

This instruction should be given at the time evidence of defendant’s other crimes or acts is about to be or has been admitted under Federal Rules of Evidence Rule 404(b). Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

See also United States v. Givan, 320 F.3d 452, 460-61 (3d Cir. 2003). In United States v. Scarfo, 850 F.2d 1015 (3d Cir. 1988), citing Huddleston v. United States, 485 U.S. 681 (1988), the court summarized the steps necessary to admit evidence under Rule 404(b):

[T]he Supreme Court has listed four guidelines for admissibility under the Rule. First, the other crimes evidence must have a proper purpose. Second, the proffered evidence must be relevant. Third, its probative value must outweigh its potential for unfair prejudice. Fourth, the court must charge the jury to consider the other crimes evidence only for the limited purpose for which it is admitted.

The instruction should not merely include a laundry list of permitted uses of other act evidence. Rather, it should specifically state the limited purpose for which the other act evidence is admitted. Graham, Handbook of Federal Evidence, § 404.5 note 56 (5th ed. 2001).

The Third Circuit has held that Rule 404(b) is a rule of inclusion rather than exclusion, and the purposes for which such evidence may be offered are not limited to those listed in the rule. See, e.g., United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994); Scarfo, 850 F.2d at 1019. Other purposes may include: establishing a prior or continuing relationship, familiarity, background information, understanding a co-conspirator’s role, and concert of action. See Scarfo, 850 F.2d at 1019.

The Third Circuit "favor[s] the admission of such evidence, ‘if relevant for any other purpose than to show a mere propensity or disposition on the part of the defendant to commit the crime.’" United States v. Long, 574 F.2d 761, 766 (3d Cir.), cert. denied, 439 U.S. 985 [] (1978). See also United States v. Daraio, 445 F.3d 253, 263 (3d Cir. 2006) (confirming that admission of 404(b) evidence is favored); United States v. Johnson, 199 F.3d 123, 128 (3d Cir. 1999) (noting that rules favor admission). The court has also stated that "the Government has broad latitude to use ‘other acts’ evidence to prove a conspiracy." United States v. Cross, 308 F.3d 308, 324 (3d Cir. 2002).

The proponent of evidence of prior acts "must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged." United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999); United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994). The district court should articulate its reasoning, explaining the permissible inference, unless the purpose of the evidence is "plainly obvious," and balancing the probative value of the evidence against any prejudicial impact. Daraio, 445 F.3d at 263. See also Scarfo, 850 F.2d at 1019 (noting that one factor under Rule 403 balance is government’s genuine need for the evidence which the court must balance against the risk that the other act evidence will influence the jury to convict on improper grounds).

The trial court’s ruling under Rule 404(b) will be reviewed for an abuse of discretion. United States v. Balter, 91 F.3d 427, 437 (3d Cir. 1996). However, if the trial court does not explain its grounds for ruling on an objection under Rules 404(b) and 403, the Third Circuit will not defer to the ruling unless the reasons are apparent from the record. See Becker v. ARCO Chemical Co., 207 F.3d 176, 181 (3d Cir. 2000). If the record does not provide a basis for reviewing the trial court’s exercise of discretion, the court "may undertake to examine the record and perform the required balancing [itself]." 207 F.3d at 181.

The instruction to the jury explaining other acts evidence is most helpful if it explains the precise role of the evidence. In Scarfo, the Court approved the trial court’s instructions.

The trial judge charged the jury: ‘Mr. Scarfo is not on trial here for any murders, for any gambling or any other kind of illegal activities.... [T]hose kinds of offenses would be dealt with in other tribunals than this.... I think you can understand that it would be utterly improper for you to take them into account in this case in the sense of saying to yourselves: 'Well, maybe he didn't do this extortion; but he did a lot of other stuff. So it doesn't much matter whether they prove this case. I am going to find him guilty anyway.' That obviously would be totally improper.’ 

In instructing on the proper use of other crimes evidence, the judge explained that the testimony could be used to assess the nature of the relationship among Caramandi, DelGiorno, and defendant.

‘It is a position of the Government that Caramandi and DelGiorno were subordinates within this carefully organized and structured organization; that they did Mr. Scarfo's bidding; [that] they never would dream of doing anything this large without his approval; and that the tapes and other evidence in the case corroborate their testimony to the effect that he was involved and did approve.’ 

The judge also told the jurors that they could use the evidence to decide whether defendant adopted a standardized scheme or mode of operation, to determine whether he had knowledge of or an intent to participate in the conspiracy, as well as to evaluate the witnesses' motives for cooperating with the government. Finally, the judge stated that the government had the right to reveal the witnesses' unsavory criminal records ‘so as not to be accused of trying to hoodwink the jury by pretending that people like Caramandi and DelGiorno were Boy Scouts.’ 

These clear, frank, and comprehensive instructions did all that was possible under the circumstances to place the other crimes evidence in proper perspective.

850 F.2d at 1020-21. For other Third Circuit decisions approving instructions on other act evidence, see United States v. Cruz, 326 F.3d 392 (3d Cir. 2003); United States v. Givan, 320 F.3d 452, 460-61 (3d Cir. 2003); United States v. Butch, 256 F.3d 171 (3d Cir. 2001); United States v. Palma-Ruedas, 121 F.3d 841, 852 n. 11(3d Cir.1997).

In United States v. Carter, 401 F.2d 748 (3d Cir. 1968), the court held that failure to instruct on the limited purpose of other act evidence was not plain error. See also Graham, Handbook of Federal Evidence, § 404.5 at 364 (5th ed. 2001).

This instruction should not be given when the other act evidence was admitted under Rule 413 or 414 of the Federal Rules of Evidence. Those rules allow the prosecution to introduce evidence of similar acts in prosecutions for sexual assault or child molestation. The evidence of prior conduct admitted under those rules "may be considered for its bearing on any matter to which it is relevant." As a result, no limiting instruction should be given.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

27.3.2 Prior Conviction Of Defendant

Alternative 1:

You have heard evidence that the defendant (name) on a previous occasion committed (describe bad act elicited on cross-examination of defendant). You may consider that evidence only to help you decide whether to believe (name)’s testimony and how much weight to give it. That evidence does not mean that (name) committed the crime charged here, and you must not use that evidence as any proof of the crime charged in this case.

[This evidence may not be used in any way at all in connection with the other defendant(s)].

Alternative 2 (to be given if the defendant denies the bad act):

You heard the prosecutor ask (name) whether on a previous occasion (he)(she) committed (describe bad act elicited on cross-examination of defendant). You also heard (name) deny committing that act. I remind you that questions by the lawyers are not evidence. It is the answer of the witness that provides evidence. There is therefore no evidence that (name of witness) committed (describe act).

This instruction is derived from Eighth Circuit 2.16.

This instruction should be used when the prosecution is permitted to cross-examine the defendant under Rule 608(b) of the Federal Rules of Evidence concerning prior bad acts that did not result in conviction. Rule 608(b) of the Federal Rules of Evidence provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness . . . .

If the court permits the prosecutor to cross-examine the defendant concerning prior bad acts under Rule 608(b), the court should instruct the jury concerning the cross-examination, whether or not requested, after consultation with the defendant. The appropriate instruction depends on whether the defendant admits or denies the prior conduct in response to the questions asked on cross-examination. Alternative 1 should be given if the defendant admits committing those acts. The instruction simply limits the jury's consideration of the prior acts to the defendant’s believability. The Third Circuit has not determined whether failure to give the instruction if requested is reversible error or whether failure to give the instruction if the defendant does not request it is plain error. The bracketed language in Alternative 1 should be given in a multi-defendant case.

Alternative 2 should be given if the prosecutor asks about the prior acts on cross-examination and the defendant denies committing the prior acts. Rule 608(b) precludes the introduction of extrinsic evidence to complete the impeachment with bad acts. As a result, if the prosecutor is permitted to ask about the prior bad acts on cross-examination and the defendant denies committing the acts, the prosecution can go no further with the subject. See United States v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989); United States v. Anderson, 859 F.3d.1171, 1178 (3d Cir. 1988).

Caution: This instruction should not be given when the defendant has been impeached with a prior conviction under Rule 609 of the Federal Rules of Evidence. See Instruction 2.25 (Impeachment of Defendant - Prior Conviction (FRE 609)). Nor should this instruction be given when evidence of other crimes has been admitted to prove motive, opportunity, intent or the like under Rule 404(b) of the Federal Rules of Evidence. Instead, the jury should be specifically instructed on the purpose for which such evidence was admitted. See Instruction 2.23 (Defendant’s Prior Bad Acts or Crimes (FRE 404(b))). If evidence of the defendant’s prior conduct or conviction has been admitted under Rule 404(b) or Rule 609 and the defendant is impeached with prior bad acts under Rule 608(b), this instruction should be given in conjunction with Instructions 2.23 and 2.25, respectively. If evidence has been admitted under all three rules, all three instructions should be given, highlighting the difference in relevance for the jury.

Rule 608(b) permits inquiry only concerning prior acts that are probative of untruthful conduct. To fall within the rule, the acts "will normally involve dishonesty or false statement as employed in Rule 609(a)(2)." Graham § 608.4 at 146-47. The Third Circuit has held that Rule 609(a)(2) applies only to crimes that "bear on the witness’ propensity to testify truthfully." See United States v. Johnson, 388 F.3d 96 (3d Cir. 2004). In United States v. Irizarry, 341 F.3d 343 (3d Cir. 2003), the court noted that the trial court properly allowed the prosecutor to cross-examine the defendant about his possession of identification in someone else’s name and about his possession of blank Social Security cards. Id. at 312. The Third Circuit stated that the evidence tended to show deceit and therefore fell within Rule 608(b).

The Third Circuit has also held that the decision whether to allow cross-examination under Rule 608(b) falls within the trial court’s discretion. See United States v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989). In Johnson v. Elk Lake School District, 283 F.3d 138 (3d Cir. 2002), the court held that the trial court acted within its discretion when it precluded plaintiff’s counsel from cross-examining a key witness concerning a lie on his resume. Id. at 145 n. 2. The court noted that the trial court’s ruling was reviewed under an abuse of discretion standard with "substantial deference" to the trial court. The court stated that "the trial court was within its discretion to conclude that Stevens' lying on his resume, although duplicitous and wrong, was not so indicative of moral turpitude as to be particularly probative of his character for untruthfulness." Id. This result is criticized in Graham who states that "the exercise of discretion should very rarely if ever be exercised to exclude an undisputed act of ‘lying’" such as that in Johnson. Graham § 608.4 n. 5.

The inquiry under Rule 608(b) should focus on the actual acts that suggested untruthfulness and not any third party action, such as suspension from a job, that resulted from those acts. See United States v. Davis, 183 F.3d 231, 257 n. 12 (3d Cir. 1999). The court may preclude inquiry concerning prior acts if they are remote in time. See Johnson v. Elk Lake School District, 283 F.3d 138, 145 n.2 (3d Cir. 2002).

Cross-examination may be limited by the Fifth Amendment; Rule 608(b) provides that no witness, including the accused, waives the Fifth Amendment privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. See United States v. Hudson, 422 F.Supp. 395 (E.D.Pa. 1976), affirmed 556 F.2d 566, affirmed 556 F.2d 569, cert. denied, 431 U.S. 922, cert. denied, 434 U.S. 839 (1977). The Third Circuit appears not to have addressed this aspect of the rule.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

2.25
Impeachment of Defendant - Prior Conviction (FRE 609)