MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006 (Updated 2008)
Go to Federal Model Instructions Table of Contents - Go to 3rd Circuit Table of Contents

Chapter 4 Final Instructions: Consideration of Particular Kinds of Evidence

    4.01     Stipulated Testimony
    4.02     Stipulation of Fact
    4.03     Judicial Notice (FRE 201)
    4.04     Audio/Video Recordings - Consensual
    4.05     Audio/Video Recordings - Non-consensual
    4.06     Audio/Video Recordings - Transcripts
    4.07     Transcript of Recording in Foreign Language
    4.08     Opinion Evidence (Expert Witnesses)
    4.09     Opinion Evidence (Lay Witnesses) (FRE 701)
    4.10     Summaries – Not Admitted
    4.11     Summaries – Admitted (F.R.E 1006)
    4.12     Chain of Custody
    4.13     Fingerprints, Handwriting, and DNA Evidence
    4.14     Specific Investigation Techniques Not Required
    4.15     Eyewitness Identification of the Defendant
    4.16     Missing Witness
    4.17     Child Witness
    4.18     Credibility of Witnesses – Law Enforcement Officer
    4.19     Credibility of Witnesses - Witness Who Has Pleaded Guilty to Same or Related 
                Offense, Accomplices, Immunized Witnesses, Cooperating Witnesses
    4.20     Credibility of Witnesses - Testimony of Informer
    4.21     Credibility of Witnesses - Testimony of Addict or Substance Abuser
    4.22     Impeachment of Witness – Prior Inconsistent Statement for Credibility Only
    4.23     Impeachment - Bad Character for Truthfulness (FRE 608(a))
    4.24     Impeachment of Witness - Prior Bad Acts (FRE 608(b))
    4.25     Impeachment of Witness - Prior Conviction (FRE 609)
    4.26     False in One, False in All (Falsus in Uno, Falsus in Omnibus)
    4.27     Defendant’s Choice not to Testify or Present Evidence
    4.28     Defendant’s Testimony
    4.29     Defendant’s Prior Bad Acts or Crimes (FRE 404(b))
    4.30     Consciousness of Guilt (Flight, Concealment, Use of an Alias, etc.)
    4.31     Consciousness of Guilt (False Exculpatory Statements)
    4.32     Prior Statement of Defendant – Single Defendant on Trial
    4.33     Prior Statement of Non-testifying Defendant in Multi-Defendant Trial
    4.34     Silence in the Face of Accusation
    4.35     Impeachment of Defendant - Prior Bad Acts (FRE 608(b))
    4.36     Impeachment of Defendant - Prior Conviction (FRE 609)
    4.37     Impeachment of Defendant - Prior Inconsistent Statement Taken in 
                Violation of Miranda
    4.38     Impeachment of Defendant - Prior Inconsistent Statement Not Taken 
                in Violation of Miranda
    4.39     Defendant's Character Evidence
    4.40     Impeachment of Defendant’s Character Witness

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

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.

See 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 4.02 if the stipulation is as to an issue of fact.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

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 O’Malley, § 12.03, Sand, Instruction 5-6, and Ninth Circuit § 2.4. For variations, see Ninth Circuit (Criminal) § 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 Court of Appeals 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 the judge may wish to ascertain that the defendant understands the contents of the stipulation and agrees to it.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

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 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.

See Eighth Circuit § 2.04. For variations, see O’Malley § 12.03, Sand Instruction 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

25.9 Electronic Recordings

During the trial you heard (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, Instruction 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

25.9 Electronic Recordings

During the trial, you heard 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, Instruction 5-11.

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

24.2.7 Transcripts As Evidence

25.9 Electronic Recordings

You have heard (audio)(video) recordings that were received in evidence, and you were given written transcripts of the recordings.

Keep in mind that the transcripts are not evidence. They were given to you only as a guide to help you follow what was being said. The recordings themselves are the evidence. If you noticed any differences between what you heard on the recordings and what you read in the transcripts, you must rely on what you heard, not what you read. And if you could not 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 you actually heard speaking in the recording. The names on the transcript were used simply for your convenience.]

See Sixth Circuit § 7.17 and Eighth Circuit § 2.06. For variations, see 1A O’Malley, § 14.09, Sand, Instruction 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).

Instruction 2.07 should be given when the recording is played. This instruction 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, and the court therefore admits two alternative versions, the court should replace the second paragraph of this instruction with 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 is 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.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

24.2.7 Transcripts As Evidence

24.2.7.3 Transcript Of Foreign Language Recording

25.9 Electronic Recordings

During the trial, you listened to a tape recording in (language used). Each of you was given a transcript of the recording which was admitted into evidence. The transcript was a translation of the foreign language tape 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.

See Ninth Circuit § 2.8.

This instruction should be given when recordings in a foreign language were 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

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.

In this case, you heard testimony from (state the name of the person(s) who offered 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) (was)(were) permitted to offer a(n) 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 discussed in these 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 if a witness was permitted to give an opinion under FRE 702. For a comparable instruction that should be given at the time the witness testifies, see 2.09. Instructions 2.10 addresses lay opinion testimony. If both expert and lay witnesses were permitted to give opinion testimony, both sets of instructions should be given.

The instruction avoids 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 permitted (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 discussed in these 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." FRE 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 4.08 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 during the trial, see Instruction 2.10.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.3 Charts, Summaries, Etc.

(The parties)(The government)(The defendant) presented certain (charts)(summaries) in order to help explain the facts disclosed by the (describe the admitted evidence that provided the basis for the summaries; e.g., books, records, documents) which were admitted as evidence in the case. The (charts)(summaries) are not themselves evidence or proof of any facts. If the (charts)(summaries) do not correctly reflect the evidence in the case, you should disregard them and determine the facts from the underlying evidence.

See Ninth Circuit § 4.18.

This instruction should be given when charts or summaries of admitted evidence are presented to the jury but not themselves admitted in evidence. The instruction reminds the jury that the admitted exhibits and testimony constitute the evidence in the case and that the chart or summary itself does not.

The instruction is not appropriate when the summaries and charts have been introduced into evidence and the underlying documents or records have not been introduced into evidence as permitted under Federal Rule of Evidence 1006. See Instruction 4.11.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.3 Charts, Summaries, Etc.

Certain (charts)(summaries) offered by (the parties)(the government)(the defendant) were admitted as evidence. You may use those (charts)(summaries) as evidence, even though the underlying documents and records have not been admitted into evidence.

[However, the (accuracy)(authenticity) of those (charts)(summaries) has been challenged. You must decide how much weight, if any, you will give to them. In making that decision, you should consider the testimony you heard about the way in which the (charts)(summaries) were prepared.]

See Eighth Circuit § 4.12.

This instruction may be given when summaries or charts are admitted under Rule 1006 of the Federal Rules of Evidence and the underlying records are not admitted.

Rule 1006 provides:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

The Third Circuit has upheld the use of summaries under Rule 1006. See , e.g., United States v. Worrells, 94 Fed. Appx. 927, 2004 WL 835783 (3d Cir. 2004); United States v. Syme, 276 F.3d 131, 151 (3d Cir. 2002). The court has not addressed the question of whether and how to instruct the jury concerning the summaries.

Under the rule, the summaries or charts should be based on admissible evidence. The party relying on the summary must establish its accuracy to the court’s satisfaction. See Graham, Handbook of Federal Evidence § 1006.1 (5th ed. 2001). In S.E.C. v. Hughes Capital Corp., 124 F.3d 449, 456 (3d Cir. 1997), the Third Circuit held that the trial court acted within its discretion when it refused to admit summaries of documents that the trial court held inadmissible as insufficiently trustworthy. The court stated that the trial court "did not abuse its discretion by refusing to admit a summary based on inadmissible evidence." 124 F.3d at 456. Nevertheless, in some cases, the opposing party may challenge the accuracy or authenticity of the summary. The bracketed portion of this instruction should be given if the accuracy or authenticity has been challenged.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.2.6 Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized

96.3.3.4 Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs or Alcohol Into Jail Or Prison: Chain of Custody As Defense Theory

The defense has raised the issue of defects in the chain of custody of (describe evidence in question; e.g., the firearm, the drugs). You may consider any defects in determining the authenticity of this evidence and what weight to give it. The government must prove beyond a reasonable doubt that the (describe evidence in question) (is)(are) the same as the (describe evidence) (alleged in the indictment)(introduced during the trial).

This instruction may be given if a colorable question is raised at trial concerning the authentication of a critical item of evidence.

Chain of custody is initially a question for the court. In order to admit certain items of evidence, the court must determine that there is sufficient evidence of their authentication to satisfy Federal Rules of Evidence Rule 901. Rule 901(a) provides:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

The mere fact that there is enough evidence of authentication to support admitting the evidence does not foreclose the possibility that a question of authenticity may also be raised at trial. For example, in United States v. Dent, 149 F.3d 180 (3d Cir. 1998), the defendant argued that the government had failed to establish a reliable chain of custody. The Third Circuit stated that "[t]o establish a chain of custody, the government need only show that it took reasonable precautions to preserve the evidence in its original condition," and need not exclude all possibility of tampering. 149 F.3d at 188. A defect in the chain of custody goes to the weight of the evidence, not its admissibility. See United States v. Briley, 319 F.3d 360, 363 (8th Cir. 2003); United States v. Gorman, 312 F.3d 1159, 1163 (10th Cir. 2002); United. States v. Rodriguez, 162 F.3d 135, 144 (1st Cir. 1998). Thus questions about the chain of custody might cause the jury to acquit even though the evidence was properly admitted.

If the defendant offers evidence that must be authenticated, the same principles govern. The court must assure adequate evidence of authenticity to satisfy the rules of evidence. Even if the evidence is properly admitted, the government may argue to the jury that it is not actually authentic. Of course, the defendant has no burden of proof, but the government may persuade the jury that the defendant’s evidence has no probative value.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

32.2 Fingerprint

32.4 DNA

32.14 Handwriting

When the identity of the person who committed a crime is in question, the parties may introduce (fingerprint)(DNA)(handwriting) evidence to try to prove who committed the crime. To do this, a party may present a "known" sample of a person’s (fingerprint)(DNA)(handwriting), one that is (proved)(admitted) to come from that person. This known (fingerprint)(DNA)(handwriting) sample is then compared with any (fingerprint)(DNA)(handwriting) being introduced to prove who committed the crime. In this case (describe evidence produced; e.g., the "known" sample is the fingerprint card and testimony produced by the government which, if believed, establishes that the fingerprints on the card are the defendant’s and the disputed evidence is the fingerprint that was found at the scene of the crime.)

[In this case you also heard the testimony of a witness who claims special qualification in the field of (fingerprint identification)(DNA analysis)(handwriting identification). The witness was allowed to express an opinion in order to help you decide whether the disputed (fingerprint)(DNA)(handwriting) connected to the crime in question is (the defendant)(name of suspect other than defendant)’s (fingerprint)(DNA)(handwriting). You may therefore consider the witness' opinion in reaching your independent decision on this issue.]

See O’Malley § 14.12 and Sand § 7.22.

The instruction may be given if either the government or the defense introduces evidence of handwriting, fingerprints, or DNA in an effort to establish the identity of the perpetrator. Usually, the party will also introduce the testimony of an opinion witness to help establish that the known sample of handwriting, fingerprints, or DNA matches the sample that is connected to the crime. In that case, the court should include the bracketed language and should also give Instruction 4.08.

If the defendant submits handwriting exemplars that are disguised, the court may consider giving Sand § 6-13, Consciousness of Guilt From Disguised Handwriting :

There has been evidence that the defendant submitted examples of his handwriting to the government for analysis and comparison with the handwriting on other documents in evidence. In this connection, there has been testimony from a handwriting expert that the handwriting exemplars submitted by the defendant were not true samples of the defendant's handwriting.

If you find that the defendant disguised his handwriting you may, but you need not, infer that the defendant believed that he was guilty. You may not, however, infer on the basis of this alone, that the defendant is, in fact, guilty of the crime for which he is charged.

Whether or not evidence that the defendant disguised his handwriting shows that the defendant believed that he was guilty and the significance, if any, to be given to such evidence, are matters for you, the jury, to decide.

Other acts that evidence a consciousness of guilt are addressed in Instruction 4.30.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

36.1.5 Failure To Investigate, Conduct Tests Or Follow Police Procedures

During the trial you heard testimony of witnesses and argument by counsel that the government did not use specific investigative techniques such as (mention omitted techniques that have been addressed in testimony or argument; e.g., fingerprint analysis, DNA analysis, the use of recording devices). You may consider these facts in deciding whether the government has met its burden of proof, because as I told you, you should look to all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, there is no legal requirement that the government use any of these specific investigative techniques or all possible techniques to prove its case. There is no requirement to (mention omitted techniques; e.g., attempt to take fingerprints or offer fingerprint evidence, gather DNA evidence or offer DNA analysis, or use recording devices or offer recordings in evidence.)

Your concern, as I have said, is to determine whether or not the evidence admitted in this trial proves the defendant's guilt beyond a reasonable doubt.

See Sand Form Instruction 4-4.

Jurors may arrive at the trial with preconceptions about the use of specific investigative techniques and may expect the government to present evidence such as fingerprint, fiber or DNA analysis to help resolve the case. As a result, they may be reluctant to rely on others types of evidence, particularly witness testimony, either to convict or to acquit. These expectations should not be permitted to prejudice the government. If the defendant has argued that the government’s case is deficient because of the failure to use one or more specific investigative techniques, this instruction may be appropriate. If the court decides to give this instruction, the court must be careful not to place its imprimatur on the investigative choices of either party.

The Third Circuit has not addressed the propriety of an instruction of this nature. However, in United States v. Saldarriaga, 204 F.3d 50, 51-52 (2d Cir. 2000), the Second Circuit approved a similar instruction. In Saldarriaga, defense counsel had highlighted the government’s failure to employ certain investigative techniques. The Second Circuit rejected the defendant’s challenge to the instruction and characterized the instruction as "legally sound."

In rare cases, a question may arise concerning the defendant’s failure to employ specific investigative techniques. The court should not instruct on this question unless the defendant consents. Any comment may interfere with the defendant’s right not to present evidence.

If the missing evidence that is highlighted is the testimony of an absent witness, the court should not give this instruction. Instead, the court should consider whether to give Instruction 4.16.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Chapter 31: Identification: Eyewitness (Mistaken Identity)

One of the (most important) issues in this case is whether (name of defendant) is the same person who committed the crime(s) charged in (Count(s) ___ of) the indictment. The government, as I have explained, has the burden of proving every element, including identity, beyond a reasonable doubt. Although it is not essential that a witness testifying about the identification (himself)(herself) be free from doubt as to the accuracy or correctness of the identification, you must be satisfied beyond a reasonable doubt based on all the evidence in the case that (name of defendant) is the person who committed the crime(s) charged. If you are not convinced beyond a reasonable doubt that (name of defendant) is the person who committed the crime(s) charged in (Count(s) ___ of) the indictment, you must find (name of defendant) not guilty.

Identification testimony is, in essence, the expression of an opinion or belief by the witness. The value of the identification depends on the witness’ opportunity to observe the person who committed the crime at the time of the offense and the witness’ ability to make a reliable identification at a later time based on those observations.

You must decide whether you believe the witness’ testimony and whether you find beyond a reasonable doubt that the identification is correct. You should evaluate the testimony of a witness who makes an identification in the same manner as you would any other witness. In addition, as you evaluate a witness’ identification testimony you should consider the following questions as well as any other questions you believe are important (include only those called for by the facts of the case):

(First), you should ask whether the witness was able to observe and had an adequate opportunity to observe the person who committed the crime charged. Many factors affect whether a witness has an adequate opportunity to observe the person committing the crime; the factors include the length of time during which the witness observed the person, the distance between the witness and the person, the lighting conditions, how closely the witness was paying attention to the person, whether the witness was under stress while observing the person who committed the crime, whether the witness knew the person from some prior experience, whether the witness and the person committing the crime were of different races, and any other factors you regard as important.

(Second), you should ask whether the witness is positive in the identification and whether the witness’ testimony remained positive and unqualified after cross-examination. If the witness’ identification testimony is positive and unqualified, you should ask whether the witness’ certainty is well-founded.

[(Third), you should ask whether the witness’s identification of (name of defendant) after the crime was committed was the product of the witness’ own recollection. You may take into account both the strength of the later identification and the circumstances under which that identification was made. You may wish to consider how much time passed between the crime and the witness’ later identification of the defendant. You may also consider (whether the witness gave a description of the person who committed the crime) (how the witness’ description of the person who committed the crime compares to the defendant.) (You may also consider whether the witness was able to identify other participants in the crime.) If the identification was made under circumstances that may have influenced the witness, you should examine that identification with great care. Some circumstances which may influence a witness’ identification are whether the witness was presented with more than one person or just (name of defendant); whether the witness made the identification while exposed to the suggestive influences of others; and whether the witness identified (name of defendant) in conditions that created the impression that (he) (she) was involved in the crime.]

[(Fourth), you should ask whether the witness failed to identify (name of defendant) at any time, identified someone other than (name of defendant) as the person who committed the crime, or changed his or her mind about the identification at any time.]

[The court should also give the following admonition if the witness’ opportunity to observe was impaired or if the witness’ identification is not positive, was shaken on cross-examination, or was weakened by a prior failure to identify the defendant or by a prior inconsistent identification:

You should receive the identification testimony with caution and scrutinize it with care.]

If after examining all of the evidence, you have a reasonable doubt as to whether (name of defendant) is the individual who committed the crime(s) charged, you must find (name of defendant) not guilty.

This instruction is derived from 1A O’Malley § 14.10, which is based on the instruction recommended in United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972) (set out below), which the Third Circuit cited with approval in United States v. Wilford, 493 F.2d 730, 734 n.9 (3d Cir. 1974).

This instruction should be given in any case in which eyewitness identification of the defendant is an issue. The Third Circuit has recognized the problems with eyewitness identification testimony as well as the important role of expert testimony in helping jurors evaluate eyewitness identification of the defendant in a criminal case. See United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985). In Brownlee, the court held that the exclusion of portions of the defense expert’s proffered testimony on eyewitness identification required reversal of the defendant’s conviction even though the trial court permitted the expert to testify as to some factors that challenged the government’s identification witnesses. 454 F.3d at 144. The court emphasized that "jurors seldom enter a courtroom with the knowledge that eyewitness identifications are unreliable." 454 F.3d at 142 (quoting Rudolph Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 Cornell Law Review 1097, 1099 n.7 (2003)).

In United States v. Barber, 442 F.2d 517 (3d Cir. 1971), the Third Circuit addressed the importance of instructing the jury on identification testimony:

[W]e recognize a compelling need for guidelines which will obviate skeletal, pattern instructions and assure the essential particularity demanded by the facts surrounding each identification. Accordingly, we approve for use in this circuit the approach taken by the Pennsylvania courts concerning jury instructions on identification, and require, for prospective application only, that such instructions satisfy the following:

In any case raising the question whether the defendant was in fact the criminal actor, the jury will be instructed to resolve any conflict or uncertainty on the issue of identification. The jury will be instructed that identification may be made through the perception of any of the witness' senses, and that it is not essential that the witness himself be free from doubt as to the correctness of his opinion. The identification testimony may be treated by the jury as a statement of fact by the witness: (1) if the witness had the opportunity to observe the accused; (2) if the witness is positive in his identification; (3) if the witness' identification testimony is not weakened by prior failure to identify or by prior inconsistent identification; and (4) if, after cross-examination, his testimony remains positive and unqualified. In the absence of any one of these four conditions, however, the jury will be admonished by the court that the witness' testimony as to identity must be received with caution and scrutinized with care. The burden of proof on the prosecution extends to every element of the crime charged, including the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime for which he stands charged.

442 F.2d at 528 (citations omitted).

In United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972), the D.C. Circuit, building on Barber, recommended that the following instruction be adapted to the facts of case and given in any case where eyewitness identification of the defendant is an issue:

One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The Government has the burden of proving identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In appraising the identification testimony of a witness, you should consider the following:

(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?

Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.
[In general, a witness bases any identification he makes on his perception through the use of his senses. Usually the witness identifies an offender by the sense of sight-but this is not necessarily so, and he may use other senses.]

[(2)Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification.

[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]

[(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.]

(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.

I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.

See United States v. Wilford, 493 F.2d 730, 734 n.9 (3d Cir. 1974) (citing Telfaire with approval).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

4.16
Missing Witness

36.2 Missing Witness

You have heard evidence about (name of missing witness), who has not been called to testify. The defense has argued that (name of missing witness)’s testimony could have been important to this case and that (name of missing witness) was available as a witness only to the government and not to the defense.

If you find that the government could have called (name of missing witness) as a witness and that (name of missing witness) would have given important new testimony, and you also find that (name of missing witness) was available as a witness only to the government and not to the defense and that the government failed to call (name of missing witness), you are permitted, but you are not required, to infer that (name of missing witness)’s testimony would have been unfavorable to the government.

You must decide whether you believe that (name of missing witness) would have testified unfavorably to the government. You should not draw such a conclusion if the witness was equally available to both parties or if the witness’ testimony would have merely repeated the testimony of other witnesses or evidence already presented in the case.

This instruction is derived from Sand § 6-5.

Ordinarily, the inference to be drawn from failure to call a witness should be left to argument of counsel and should not be a topic of instruction. When the question arises during trial, the court should inquire whether the witness is equally available to either party. If the government agrees to make a witness within its control available to the defendant yet neither party calls the witness, the instruction should not be given. This instruction should never be given to call attention to the defendant’s failure to call a witness.

Several requirements must be satisfied before this instruction is appropriate:

The witness was available to one party and not the other;

The party to whom the witness is available does not call the witness and provides no explanation for that failure;

The witness is not prejudiced against that party; and

The witness would give relevant and non-cumulative testimony.

See United States v. Ariza-Ibarra, 651 F.2d 2, 15-16 (1st Cir. 1981).

In Ariza-Ibarra, the First Circuit explained the rationale and application of the missing witness instruction:

In the absence of a satisfactory explanation, when a party fails to call a witness whom that party would ordinarily produce if the facts known by the witness were favorable to that party, the jury may infer that the absent witness's testimony would have been adverse to that party. This adverse inference may not reasonably be drawn, however, unless the evidence shows that the witness is available to testify on behalf of the party, that the testimony of the witness would be relevant and noncumulative, and that the witness is not prejudiced against the nonproducing party. Because the occasion for drawing such an inference arises when both parties have failed to call a material witness, if the jury is to attribute negative consequences to only one party's failure to do so, it must determine which of the parties is likely to be withholding damaging testimony. Thus, the jury may draw an inference adverse to a party toward whom the missing witness is "favorably disposed," because the party would normally be expected to produce such a witness. In addition, the jury may draw an adverse inference when a party fails to produce a material witness who is peculiarly available to that party. [A] party's ability to produce a witness is often dependent on the witness's predisposition toward that party. However, when a party having exclusive control over a witness who could provide relevant, noncumulative testimony fails to produce the witness, it is permissible to draw an adverse inference from that party's failure to do so, even in the absence of any showing of the witness's predisposition toward the party. Typically, what is referred to as "an absent witness" or "missing witness" instruction deals only with "control," not with "predisposition."

651 F.2d at 15-16 (citations omitted). In Ariza-Ibarra, the court concluded that the instruction was not appropriate because the witness was equally available to both parties. 651 F.2d at 16. If the witness is technically available to both parties but can be expected to be hostile to one party because of the witness’ connection to the other party or some other reason, the instruction is not warranted based on the party’s failure to call a hostile witness. See United States v. Wilson, 322 F.3d 353, 363 n. 14 (5th Cir. 2003).

In United States v. Drozdowski, 313 F.3d 819, 825 n.3 (3d Cir. 2002), the Third Circuit remarked that "the 'absent witness' jury instruction is to be given in a case where the government fails to produce evidence, and the instruction tells the jury that the failure to produce this evidence creates a presumption that the evidence would be favorable to the defendant" but concluded that the instruction was not appropriate where the witness had fled and was therefore unavailable to both parties. 313 F.3d at 825 n.3 (citing Graves v. United States, 150 U.S. 118 (1893)).

It is not clear whether the defendant is entitled to a missing witness instruction or whether the trial court has discretion to determine whether to give the instruction. However, the Third Circuit has noted that a party may decide not to call a witness for a wide range of reasons. See United States v. Busic, 587 F.2d 577, 586 (3d Cir. 1978), rev'd on other grounds, 446 U.S. 398 (1980). As a result, the better course seems to be to treat the question as falling within the court’s discretion.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

27.2.13 Testimony Of A Child: Cautionary Instruction

You have heard the testimony of (child’s name). A child may be permitted to testify even though (he)(she) is very young. You must determine, as with any witness, whether you believe (child’s name)’s testimony and how much weight, if any, you think it deserves. Did (he)(she) understand the questions? Did (he)(she) accurately perceive the events? Does (he)(she) have a good memory? Does (he)(she) understand (his)(her) duty to tell the truth?

It is up to you to decide whether (child’s name) understood the seriousness of (his)(her) appearance as a witness at this criminal trial. In addition, is up to you to decide whether (child’s name) understood the questions asked of (him)(her) and was truthful.

See Federal Judicial Center § 28. For variations, see O’Malley § 15.13, Sixth Circuit § 7.10, Seventh Circuit § 1.03 and Ninth Circuit § 4.15 (recommending no instruction be given).

A child is not rendered incompetent to testify merely because of age. In addition to Rule 601 of the Federal Rules of Evidence, which provides that all witnesses are competent, Section 3509(c) of title 18 governs the competency examination of a witness under the age of eighteen who is a victim of physical abuse, sexual abuse, or exploitation or is a witness to a crime committed against another person. 18 USC 3509(a) and (c). Section 3509(c)(2) provides that a child is presumed to be competent. Sections 3509(c)(3) and (4) provide that a child can be examined for competency only after written notice, an offer of proof of incompetency, and a determination by the court that there are compelling reasons other than the child’s age for the examination. Section 3509(c) then sets out the requirements for the competency examination:

(5) Persons permitted to be present.--The only persons who may be permitted to be present at a competency examination are--

(A) the judge;

(B) the attorney for the Government;

(C) the attorney for the defendant;

(D) a court reporter; and

(E) persons whose presence, in the opinion of the court, is necessary to the welfare and well-being of the child, including the child's attorney, guardian ad litem, or adult attendant.

(6) Not before jury.--A competency examination regarding a child witness shall be conducted out of the sight and hearing of a jury.

(7) Direct examination of child.--Examination of a child related to competency shall normally be conducted by the court on the basis of questions submitted by the attorney for the Government and the attorney for the defendant including a party acting as an attorney pro se. The court may permit an attorney but not a party acting as an attorney pro se to examine a child directly on competency if the court is satisfied that the child will not suffer emotional trauma as a result of the examination.

(8) Appropriate questions.--The questions asked at the competency examination of a child shall be appropriate to the age and developmental level of the child, shall not be related to the issues at trial, and shall focus on determining the child's ability to understand and answer simple questions.

Finally, the statute precludes psychological and psychiatric examinations to assess the competency of the child witness absent a showing of compelling need. 18 USC 3509(c)(9).

In United States v. Allen J., 127 F.3d 1292 (10th Cir. 1997), the Tenth Circuit concluded that the trial court properly allowed a young witness to testify. The witness had not responded to the court’s questions concerning truth-telling, but the prosecutor conducted the following examination:

The prosecutor began with simple questions ("[W]hat is your last name?", "How old are you?", and "Where do you live?"), which the victim answered. After about thirty questions along these lines, almost all of which the victim was able to answer correctly, the prosecutor shifted to questions relating to the difference between the truth and lies. Among other questions, the prosecutor asked the victim if she understood she had promised to tell the truth in court, to which the victim responded affirmatively. After this series of questions, which established the victim knew the difference between a truth and a lie, knew she was to tell the truth in court, and knew she would be punished if she told a lie, the court directed the prosecutor to proceed to the heart of her case.

The court held that this questioning satisfied the requirement of Rule 603 of the Federal Rules of Evidence that the witness understand and affirm the obligation to testify truthfully and established the witness’ competence.

One source recommends the following questions to determine whether the child understands the obligation to tell the truth:

THE COURT: Were you here in this courtroom last week? (Or any other obvious misstatement of past fact.)

THE CHILD: No, I’ve never been here before.

THE COURT: Is that the truth?

THE CHILD: Yes.

THE COURT: If you told me you were here last week, when you really were somewhere else, would that be a lie?

THE CHILD: Yes.

THE COURT: We will be depending on you today to tell us the truth about what you remember. Can we count on you to tell the truth?

THE CHILD: Yes.

Lucy S. McGough, Child Witnesses: Fragile Voices in the American Legal System, 117(1994)

When a child testifies, the court may want to instruct the jury concerning how to approach the task of assessing this witness’ credibility. The Third Circuit has not addressed the question of an instruction on the credibility of a child witness. Other circuits have held that the trial court has discretion to determine whether to give such an instruction. See United States v. Pacheco, 154 F.3d 1236, 1239 (10th Cir. 1998); Guam v. McGravey, 14 F.3d 1344, 1348 (9th Cir. 1995). In Joseph v. Government of the Virgin Islands, 2005 U.S. Dist. LEXIS 11039 (D.V.I., 2005), the court rejected the defendant’s argument that the trial court erred by refusing to give an instruction on the credibility of the child victim. Citing McGravey, the court noted that the trial court had properly instructed the jury concerning "the appropriate weight of each witness's testimony" and held that the trial court has the discretion to determine both whether and how to instruct the jury regarding the credibility of a child witness. Joseph, 2005 U.S. Dist. LEXIS 11039 (D.V.I., 2005).

In United States v. Butler, 56 F.3d 921 (8th Cir. 1995), the court gave the following instruction:

As with other witnesses, you are the sole judge of the credibility of a child who testifies. You may consider not only the child's age, but the demeanor on the stand, the capacity to observe facts and to recollect them, the ability to understand questions put to the child and to answer them intelligently, whether the child impresses you as having an accurate memory and recollection, whether the child impresses you as a truth-telling individual, and any other facts and circumstances which impress you as significant in determining the credibility of the child. You may give the child's testimony such weight, if any, as you feel it deserves.

The Eighth Circuit held that the trial court had acted within its discretion in giving the instruction and that the instruction did not improperly highlight or bolster the testimony of the child witness.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

27.6 Police Officers And Governmental Employees

You have heard the testimony of a(n) law enforcement officer(s). The fact that a witness is employed as a law enforcement officer does not mean that (his)(her) testimony necessarily deserves more or less consideration or greater or lesser weight than that of any other witness.

[At the same time, it is quite legitimate for defense counsel to try to attack the believability of a law enforcement witness on the ground that (his)(her) testimony may be colored by a personal or professional interest in the outcome of the case.]

You must decide, after reviewing all the evidence, whether you believe the testimony of the law enforcement witness and how much weight, if any, it deserves.

See Sand § 7-16.

In United States v. Bethancourt, 65 F.3d 1074, 1080 n.3 (3d Cir. 1995), cert. denied, 516 U.S. 1153 (1996), the trial court gave this instruction. The Third Circuit noted with approval that the trial court had instructed the jury that "the government witnesses' testimony was not entitled to any greater consideration because of their federal employment," in addition instructing the jurors that they were the sole judges of credibility. These two instructions persuaded the court that the prosecutor’s improper argument that the government’s law enforcement witnesses did not lie was harmless error.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

16.18 Disposition Of Charges Against Codefendant

25.5 Witness Immunity

25.6 Accomplices: Cautionary Instructions

26.2.3 Witness Who Has Pled Guilty: Limited Purpose Instruction

You have heard evidence that (name of witness) [Include as many of the following that apply:

is an alleged (accomplice)(co-conspirator), someone who says (he)(she) participated in the crime charged; or

has made a plea agreement with the government; or

has received a promise from the government that (he)(she) will not be prosecuted; or

has received a promise from the government that (his)(her) testimony will not be used against (him)(her) in a criminal case; or

received a benefit from the government in exchange for testifying.]

(His)(Her) testimony was received in evidence and may be considered by you. The government is permitted to present the testimony of someone who has (describe the witness’ situation, e.g., reached a plea bargain with the government, received a benefit from the government) in exchange for (his)(her) testimony, but you should consider the testimony of (name of witness) with great care and caution. In evaluating (name of witness)’s testimony, you should consider this factor along with the others I have called to your attention. Whether or not (his)(her) testimony may have been influenced by the (plea agreement)(government's promise)(alleged involvement in the crime charged) is for you to determine. You may give (his)(her) testimony such weight as you think it deserves.

[You must not consider (name of witness)’s guilty plea as any evidence of (name of defendant)’s guilt. (His)(her) decision to plead guilty was a personal decision about (his)(her) own guilt. Such evidence is offered only to allow you to assess the credibility of the witness; to eliminate any concern that (the defendant) (any of the defendants) has been singled out for prosecution; and to explain how the witness came to possess detailed first-hand knowledge of the events about which (he)(she) testified. You may consider (name of witness)’s guilty plea only for these purposes.]

See Sand, Instruction 7-10, Eighth Circuit § 4.04, and Ninth Circuit § 4.9.

This instruction should be used when a government witness has made a plea agreement with the government, has received immunity (a promise that the witness will not be prosecuted or that the witness’ testimony will not be used against the witness), or has received any other benefit from the government in exchange for testifying. If the witness is an informant who received benefits for providing information, Instruction 2.21 should be given instead.

There are two aspects to this instruction. First, it instructs the jury to view with caution the testimony of a witness who has received a benefit from the government for testifying or who has entered a plea agreement with the government. Second, the bracketed language instructs the jury that an accomplice’s guilty plea is not evidence of the defendant’s guilt.

The government may introduce the testimony of accomplices or co-conspirators, and the uncorroborated testimony of such witnesses is sufficient to sustain a conviction. See United States v. Perez, 280 F.3d 318 (3d Cir. 2002). However, when the prosecution calls a witness who has entered into a plea agreement with the government, received formal or informal immunity, or received some other benefit in exchange for testifying, the court should instruct the jury to view the witness’ testimony with caution. In Caminetti v. United States, 242 U.S. 470, 495 (1917), the Supreme Court held it was not reversible error to deny the defendant’s request to instruct the jury that "the testimony of the two girls was that of accomplices, and to be received with great caution and believed only when corroborated by other testimony adduced in the case." Nevertheless, the Court noted that "it [is] the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to such evidence." Similarly, in United States v. Isaac, 134 F.3d 199, 204-05 (3d Cir. 1998), the Third Circuit held that it was not reversible error to deny the defendant’s request to instruct the jury to weigh the testimony of two witnesses "with greater care" because they were accomplices and had been immunized, but noted that it "may well be the better practice to give an instruction if requested." The court also commented that "warning the jury to consider the testimony of an accomplice with great care and caution before relying on it is appropriate," but concluded that other instructions adequately addressed credibility concerns. Id. Whether to give the instruction is entrusted to the discretion of the trial court. Id. at 205.

The bracketed language should be included in the instruction if the jury has learned that an accomplice or co-conspirator pleaded guilty. 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). 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 prejudicial effect of the witness’ guilty plea should be addressed through a curative instruction to the jury. See Universal Rehabilitation Services., 205 F.3d at 668; Gaev, 24 F.3d at 478. 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 the final charge to the jury, the trial court further instructed the jury as follows:

I instruct you, as I previously instructed you after the conclusion of each of their testimony or direct examination, that you are instructed that you are to draw no conclusions or inferences of any kind about the guilt of the defendant on trial from the facts that a prosecution witness pled guilty to similar charges. That witness' decision to plead guilty was a personal decision about his own guilt. It may not be used by you in any way as evidence against or unfavorable to the defendant on trial here.

The trial court also instructed the jury concerning the testimony of accomplices and admitted felons who had entered into plea agreements with the government.

In Universal Rehabilitation Services., the Third Circuit further stated:

The jury in such cases should be instructed that it may not consider the guilty plea and/or plea agreement as evidence that the defendant is guilty of the offenses with which he/she is charged, but rather that such evidence is offered only to allow the jury to assess the witness's credibility, to eliminate any concern that the defendant has been singled out for prosecution, or to explain how the witness possessed detailed first-hand knowledge regarding the events about which he or she testifies.

205 F.3d at 668.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.6.2 Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution

25.7.2 Cautionary Instruction: Addict-Informer

25.7.7 Jailhouse Informer: Cautionary Instruction

You have heard evidence that (name of witness) has an arrangement with the government under which (he)(she) (gets paid)(receives) (describe benefit) for providing information to the government. (Name of witness)’s testimony was received in evidence and may be considered by you. The government is permitted to present the testimony of someone who (gets paid)(receives) (describe benefit) for providing information to the government, but you should consider the testimony of (name of witness) with great care and caution. In evaluating (name of witness)’s testimony, you should consider this factor along with the others I have called to your attention. You may give the testimony such weight as you think it deserves. It is for you to determine whether or not (name of witness)’s information or testimony may have been influenced by (his)(her) arrangement with the government.

See Eighth Circuit § 4.06.

The government may lawfully employ paid informers to assist in the investigation of crime and may call an informer as a witness at trial. See Hoffa v. United States, 385 U.S. 293, 312 (1966); United States v. Harris, 210 F.3d 165 (3d Cir. 2000). The court should instruct the jury to approach the informer’s testimony with caution. In Hoffa, the Court noted favorably that the trial court had given the jury the following instruction:

You should carefully scrutinize the testimony given and the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness' intelligence, his motives, state of mind, his demeanor and manner while on the witness stand. Consider also any relation each witness may bear to either side of the case * * *. All evidence of a witness whose self-interest is shown from either benefits received, detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.

385 U.S. at 312 n. 14. The Third Circuit has not decided whether it is error to refuse the instruction when requested. See United States v. Isaac, 134 F.3d 199, 204 (3d Cir. 1998). Failure to give the instruction if not requested is not plain error. See United States v. Wright, 921 F.2d 42, 47 (3d Cir. 1990).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

25.7.2 Cautionary Instruction: Addict-Informer

27.2.3 Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation

27.2.4 Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed

27.2.5 Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses

Evidence was introduced during the trial that (name of witness) [(was (using drugs)(addicted to drugs)(abusing alcohol) when the events took place) (was abusing (drugs)(alcohol) at the time of trial)]. There is nothing improper about calling such a witness to testify about events within (his)(her) personal knowledge.

On the other hand, (his)(her) testimony must be considered with care and caution. The testimony of a witness who (describe circumstances) may be less believable because of the effect the (drugs)(alcohol) may have on (his)(her) ability to perceive, remember, or relate the events in question.

After considering (his)(her) testimony in light of all the evidence in this case, you may give it whatever weight, if any, you find it deserves.

See Sand, Instruction 7-9.1.

This instruction may be given if a witness is shown to be an addict or an abuser of drugs or alcohol. The Third Circuit recommends instructing the jury "to receive the testimony of an addict-informant witness with caution and to scrutinize it with care." United States v. Miele, 989 F.2d 659, 666 (3d Cir. 1993); see also Government of the Virgin Islands v. Hendricks, 476 F.2d 776, 779-80 (3d Cir. 1973). Nevertheless, the court is not required to give the instruction. See United States v. Miles, 2002 WL 31501847 (3d Cir. 2002) (noting that the court "has never held in a published opinion that a district court is required to give a special cautionary instruction regarding the testimony of a drug addict, even when the defendant requests such an instruction"). This instruction addresses the concern that drugs or alcohol may impair the witness’ perception, memory, and narrative ability. If the witness has received some benefit, such as an agreement not to prosecute or a reduced sentence, the court should give Instruction 4.20.

Of course, the instruction is only necessary if there is evidence that the witness is an addict or an abuser of drugs or alcohol. In United States v. Urian, 858 F.2d 124, 127 n.2 (3d Cir. 1988), the Third Circuit noted that the trial court properly refused the requested instruction where other instructions advised the jury to evaluate their testimony with caution and there was no evidence that the witnesses were addicted at the time of trial. In Urian, the evidence established only that the witnesses were addicted at the time of the criminal transactions. The court may want to give this instruction even as to a witness who is no longer abusing substances simply to call to the jury’s attention the possible impact of the substance abuse on the witness’ perception and memory. In determining whether to give an instruction addressing a witness’ addiction, courts also consider the extent to which the witness’ testimony is corroborated. See United States v. Miles, 2002 WL 31501847 (3d Cir. 2002).

In Hendricks, the Third Circuit emphasized that the instruction should "set out the rationale for examining the testimony of such a witness with special caution." 476 F2d. at 780. This instruction calls the jury’s attention to the reason for examining the testimony with care – that the substance abuse may impair the witness’ perception or memory. Concerns of bias and self-interest are addressed in Instruction cross reference to problem witness instruction.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

26.3 Prior Inconsistent Statements

You have heard the testimony of certain witnesses (if only one witness was impeached with a prior inconsistent statement, include name of witness). You have also heard that before this trial (they)(he)(she) made (statements)(a statement) that may be different from (their)(his)(her) testimony in this trial. It is up to you to determine whether (these statements were)(this statement was) made and whether (they were)(it was) different from the witness(es)’ testimony in this trial. (These earlier statements were)(This earlier statement was) brought to your attention only to help you decide whether to believe the witness(es)’ testimony here at trial. You cannot use it as proof of the truth of what the witness(es) said in the earlier statement(s). You can only use it as one way of evaluating the witness(es)’ testimony in this trial.

[You also heard evidence that (this witness)(certain witnesses) made statements before this trial that were (describe condition satisfying Federal Rules of Evidence, Rule 801(d)(1)(A); e.g., made under oath, given before the grand jury) and that may be different from (his)(her) testimony at trial. When a statement is (describe condition; made under oath, made before the grand jury), you may not only use it to help you decide whether you believe the witness’ testimony in this trial but you may also use it as evidence of the truth of what the witness(es) said in the earlier statement(s). 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(es) said in the earlier statement(s) .]

See 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.

This instruction should be given when a prior inconsistent statement is admitted only for the purpose of impeaching a witness. If the witness being impeached is the defendant, see Instructions 4.37 and 4.38.

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 inconsistent 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); cross reference. 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

251.4.3.3 Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation

Reputation evidence: You heard evidence concerning the reputation for truthfulness or untruthfulness of (name of witness being impeached). You may consider this evidence in deciding whether or not to believe (name of witness being impeached). You should give this evidence whatever weight you decide is appropriate.

Opinion evidence: You heard opinion evidence concerning whether (name of witness being impeached) is a truthful or an untruthful person. You may consider this evidence in deciding whether or not to believe (name of witness being impeached). You should give this evidence whatever weight you decide is appropriate.

See Sand, §§ 5.17 and 5.18. For variations, see 1A O’Malley § 15.09, Seventh Circuit § 3.12, Eighth Circuit § 4.02, Ninth Circuit § 4.7, and Eleventh Circuit § 6.7.

Rule 608 of the Federal Rules of Evidence provides:

(a) Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Any witness, including the defendant, may be impeached with evidence of bad character for truthfulness. See United States v. Lollar, 606 F.2d 587, 588 (3d Cir. 1979). The character witness may testify to the reputation of or an opinion concerning the bad character for truthfulness of the witness being impeached. FRE 405; Lollar, 606 F.2d at 589. If a witness’ character for truthfulness is attacked, evidence of the witness’ good character for truthfulness is then admissible.

In Renda v. King, 347 F.3d 550 (3d Cir. 2003), the Third Circuit discussed the application of Rule 608(a). The court noted:

Evidence of a witness's good character for truthfulness is not admissible absent an attack on the witness's character for truthfulness due to the cost of engaging in a fruitless "swearing match," particularly in light of the fact that a witness is presumed to tell the truth until his character for truthfulness is attacked. Under Rule 608(a), whether a witness's credibility has been attacked depends on the nature of the opponent's impeaching evidence. Direct attacks on a witness's veracity in the particular case do not open the door for evidence of the witness's good character. For example, evidence of bias or prior inconsistent statements generally does not open the door for evidence of good character for truthfulness. The reason that evidence of bias does not open the door for evidence of good character for truthfulness is because evidence of bias only relates to a motive to lie in the particular case, not a general predisposition to lie. Similarly, prior inconsistent statements do not open the door for evidence of good character for truthfulness because there can be a number of reasons for the error, such as defects in knowledge or memory, a bias or interest to lie in this particular instance, or a general character trait for untruthfulness. Thus, although the inconsistency may be due to a dishonest character, it is not necessarily, or even probably, due to this cause. Thus, the relatively minor value of permitting a response to such an inference does not justify the cost of litigating the tangential issue of character for truthfulness.

Renda, 347 F.3d at 554 (citations omitted). The court also noted that indirect attacks on truthful character may open the door to evidence of good character for truthfulness. See Renda, 347 F.3d at 554. See also United States v. Murray, 103 F.3d 310, 320-21 (3d Cir. 1997) (holding defendant opened door and prosecution properly introduced evidence of witness’ truthful character). If the witness’ character for truthfulness is attacked, it is an abuse of discretion to exclude evidence of truthful character.

If character evidence is admitted under Rule 404 of the Federal Rules of Evidence, 4.40 should be given instead of this instruction.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction

You 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.

See 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 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 at the time of the cross-examination. 2.18 In addition, if the witness admits the prior conduct in response to the questions asked on cross-examination, this instruction should be given in the final charge.

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

27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction

You heard evidence that (name), a witness, was previously 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.

See Ninth Circuit (Criminal) 4.8 and First Circuit 2.03. For variations, see 1A O’Malley § 15.07, Sand Instruction 7-12, Fifth Circuit § 1.12, Sixth Circuit 7.05B, Seventh Circuit § 3.11, Eighth Circuit (Criminal) 2.18, and FJC § 30.

This instruction should be given as part of the final charge when a witness has been 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(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. Howev