Instructions On Defendant & Evidence

        3.01     Failure Of Defendant to Testify
        3.02     Defendant’s Post-Arrest Statement
        3.03     Silence In The Face Of Accusation
        3.04     Proof Of Other Crimes Or Acts
        3.05     Impeachment Of Defendant--Convictions
        3.06     Character And Reputation Of Defendant
        3.07     Weighing Expert Testimony
        3.08     Circumstances Of Identification
        3.09     Prior Inconsistent Statements--Witnesses
        3.10     Prior Inconsistent Statements--Defendants
        3.11     Impeachment Of Witness--Convictions
        3.12     Character Of A Witness
        3.13     Witnesses Requiring Special Caution
        3.14     Possession Of Stolen Property -- Inference
        3.15     Summaries – Stipulated
        3.16     Summaries--Not Stipulated
        3.17     Recordings / Transcripts of Recordings
        3.18     Foreign Language Recordings / Transcripts In English
        3.19     Motive
        3.20     Flight
        3.21     Dying Declarations
        3.22     False Exculpatory Statements
        3.23     Child Witness
        3.24     Missing Witness

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18.3 Failure Of Defendant To Testify

No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum. Carter v. Kentucky, 450 U.S. 288, 303 (1981).

In a multi-defendant trial, this instruction must be given at the request of a non-testifying defendant over the objection of a defendant who testifies. Bruno v. United States, 308 U.S. 287 (1939); United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied, 401 U.S. 943 (1971); United States v. Kelly, 349 F.2d 720, 768-69 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966).

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Chapter 28 Out Of Court Statements By Defendant

You have received evidence of a statement said to be made by the defendant to ____________. You must decide whether the defendant did in fact make the statement. If you find that the defendant did make the statement, then you must decide what weight, if any, you feel the statement deserves. In making this decision, you should consider all matters in evidence having to do with the statement, including those concerning the defendant [himself / herself] and the circumstances under which the statement was made. [You may not consider this statement as evidence against any defendant other than the one who made it.]

The second paragraph is in brackets because in some uncommon circumstances, a defendant’s post-arrest inculpatory statement may be admissible against co-defendants. See, e.g., FRE 804(b)(3).

This instruction utilizes the word "statement" in place of words such as "admission" and "confession." In United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861 (1975), the court stated that "the word ‘statements’ is a more neutral description than ‘confession’, and should be used in its place in future instructions unless the statements can be considered a ‘complete and conscious admission of guilt -- a strict confession.’" 516 F.2d at 346. If the word "statement" is used in all such instructions, however, the need for additional debate or litigation as to whether a particular statement fits the definition of a "strict confession" under Gardner is eliminated.

The instruction does not contemplate submission to the jury of a question concerning voluntariness of the statement. Clearly, due process of law prohibits criminal convictions based even partially upon involuntary statements of a defendant, irrespective of the truth or falsity of those statements. Rogers v. Richmond, 365 U.S. 534 (1961). However, the instruction assumes that any voluntariness challenge was decided adversely to the defendant by the court following a hearing comporting with the requirements of Jackson v. Denno, 378 U.S. 368 (1964), and 18 USC 3501. Consequently, reconsideration of the voluntariness issue by the jury is not required. Lego v. Twomey, 404 U.S. 477 (1972).

As is required by 18 USC 3501, the instruction directs the jurors to make a determination as to the weight, if any, to be given to a statement after considering factors having to do with the defendant’s personal characteristics and the conditions under which the statement was made. "Evidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess." Crane v. Kentucky, 476 U.S.683, 688 (1986). It is the Committee’s view that the specific factors set forth in 18 USC 3501 should not be set forth in the instruction, but, rather, should be left to argument by counsel. Inclusion of all possible subjects of consideration in a general instruction might well result in the inclusion of irrelevant factors for many cases, while recitation of but a few common factors might result in undue emphasis with respect thereto.

This instruction does not purport to deal with vicarious or adoptive admission situations which may be covered by separate instructions where appropriate. It also does not purport to deal with a defendant’s statements made in furtherance of a conspiracy or joint venture. FRE 801(d)(2)(E). Such statements are governed by separate admissibility principles and should be the subject of separate instructions.

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25.14 Adoptive Admissions

You have heard evidence that _______ accused the defendant of a crime, and that the defendant did not deny or object to the accusation. If you find that the defendant was present and heard and understood the accusation, and that it was made under such circumstances that the defendant would deny it if it were not true, then you may consider whether the defendant's silence was an admission of the truth of the accusation.

Where a defendant is under arrest, his silence in the face of an accusatory statement by a law enforcement official does not constitute an admission of the truth of the statements. Such evidence should not be received and no instruction will be necessary. Doyle v. Ohio, 426 U.S. 610 (1976). More difficult problems exist, however, when the accusatory statement is not made by a law enforcement official or when the defendant is not in custody. See Gamble, The Tacit Admission Rule: Unreliable and Unconstitutional, 14 Ga.L.Rev. 27 (1979), which challenges the admission of the evidence, under any circumstances, which makes the instruction necessary. Pre-Miranda silence is not subject to Doyle. Greer v. Miller, 483 U.S. 756, 763-65 (1987); Brecht v. Abrahamson, 507 U.S. 619 (1993).

Before silence can be considered as an admission, FRE 801(d)(2)(B), the court must consider whether the defendant was present and heard and understood the statement, whether the subject matter was within his knowledge, whether there were any impediments to responding, and whether the circumstances called for a reply. See United States v. Geise, 597 F.2d 1170, 1195-96 (9th Cir.), cert. denied, 100 S.Ct. 480 (1979); 4 Wigmore on Evidence § 1071 (Chadbourn rev. 1972); 4 Weinstein's Federal Evidence ¶ 801(d)(2)(B)[01] (1996).

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26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of ________. You should consider this evidence only for this limited purpose.

See FRE 404(b). This evidence may be admissible for purposes such as proof of predisposition, motive, opportunity, intent, preparation, plan, knowledge, identity, presence, or absence of mistake or accident. This listing is not intended to include all possibilities. The court may find it necessary to modify the wording of this sentence to accommodate the particular purposes for which the evidence is admitted.

This instruction may also be given during the trial at the time the evidence is introduced. The trial judge may refer specifically to the evidence alluded to if necessary for clarity. Care should be taken, however, not to characterize the evidence or to give it additional weight.

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27.3.2 Prior Conviction Of Defendant

You have heard evidence that the defendant has been convicted of a crime. You may consider this evidence only in deciding whether the defendant’s testimony is truthful in whole, in part, or not at all. You may not consider it for any other purpose. A conviction of another crime is not evidence of the defendant’s guilt of any crime for which the defendant is now charged.

In the ordinary case, evidence of a defendant’s prior conviction is only admissible for the limited purpose of attacking his credibility as a witness. See FRE 609 [(a) General Rule; 609(b) (Time Limit); 609(c) (Effect of pardon, annulment); 609(d) (Juvenile adjudications); 609(e) (Pendency of appeal).]. Consequently, the defendant is entitled, upon request, to an instruction limiting the jury’s consideration of the conviction to the purpose for which it was admitted. FRE 105. A defendant’s prior criminal record, however, may be called to the jury’s attention for other purposes. A prior conviction may be required to be proved as an element of the offense charged. E. g., 18 USC. 922(g) and (h). The defendant’s commission of another crime may also be admissible to prove motive, opportunity, intent and the like. See FRE 404(b). In such cases this instruction should not be given. Instead the jury should be specifically instructed on the purpose for which the evidence may be considered. See Instruction 3.04 -- "Proof of Other Crimes or Acts."

FRE 609(a)(1) permits impeachment by convictions of crimes punishable by death or imprisonment greater than one year if "the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant. See United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025 (1976) (listing considerations relevant to making this determination and noting that the burden of proof is on the government to establish admissibility) and United States v. Nururdin, 8 F.3d 1187,1191-92 (7th Cir. 1993) (impeachment value tied loosely to "inherent dishonesty" crimes). The court in Mahone also remarked that the trial judge should hold a hearing on the record before admitting such evidence and should make an explicit determination that the probative value of the conviction outweighs its prejudicial effect. See also United States v. Alvarez, 833 F.2d 724, 727 (7th Cir. 1987).

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25.13 Character Evidence

Until 1985, this Circuit adhered to the idea that a "standing alone" instruction was necessary. See United States v. Donnelly, 179 F.2d 227, 233 (7th Cir. 1950). This was taken from a reading of Edgington v. United States, 164 U.S. 361 (1896) and Michelson v. United States, 335 U.S. 469 (1948). However, in United States v. Burke, 781 F.2d 1234, 1238-42 (7th Cir. 1985), this Circuit joined the rest of the circuits (except perhaps the Tenth Circuit; see Johnson v. United States, 269 F.2d 72, 74 (10th Cir. 1959); United States v. Daily, 921 F.2d 994, 1010 (10th Cir. 1990), cert. denied, 502 U.S. 952 (1991) (failure to give an instruction is reversible error); but see also Oertle v. United States, 370 F.2d 719, 727 (10th Cir. 1966), cert. denied, 387 U.S. 943 (1967) ("it seems inconsistent and confusing, without additional explanation, to instruct the jury it must consider evidence of good character together with all of the other evidence in the case, which is the generally accepted rule, and then say evidence of good character, standing alone, may generate a reasonable doubt")), and rejected the "standing alone" instruction:

The "standing alone" instruction conveys to the jury the sense that even if it thinks theprosecution’s case compelling, even if it thinks the defendant a liar, if it also concludes that he has a good reputation this may be the "reasonable doubt" of which other instructions speak. A "standing alone" instruction invites attention to a single bit of evidence and suggests to jurors that they analyze this evidence all by itself. No instruction flags any other evidence for this analysis --not eyewitness evidence, not physical evidence, not even confessions. There is no good reason to consider any evidence "standing alone." Burke, 781 F.2d at 1239.

A "standing alone" instruction is not automatically reversible. United States v. Ross, 77 F.3d 1525, 1538 (7th Cir. 1996) ("This Court has repeatedly held that such an instruction, while sometimes allowable, is never necessary"). Many of the other Circuits also recognize that there may be situations in which the instruction can be used, and may be necessary. See United States v. Winter, 663 F.2d 1120, 1147-49 (1st Cir. 1981), cert. denied, 460 U.S. 1011 (1983); United States v. Pujana-Mena, 949 F.2d 24, 27-32 (2d Cir. 1991); United States v. Spangler, 838 F.2d 85, 87-88 (3d Cir.), cert. denied, 486 U.S. 1033 (1988); United States v. Foley, 598 F.2d 1323, 1336-37 (4th Cir. 1979), cert. denied, 444 U.S. 1043 (1980).

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Chapter 29: Expert Opinion Testimony

You have heard a witness [witnesses] give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness' qualifications, and all of the other evidence in the case.

The term "expert" has been omitted to avoid the perception that the court credits the testimony of such a witness.

Some jurisdictions do not recommend giving an instruction on expert testimony. The Illinois Pattern Jury Instructions recommend that no instruction be given on this subject while noting that the credibility of expert testimony is a proper subject of closing argument. See IPI -- Criminal 3d 3.18 (1992). Similarly, the Indiana Pattern Jury Instructions do not include a specific instruction on the subject. The general instruction relating to the jury's role in determining the weight and credibility of witnesses is thought to be sufficient. Nevertheless, the danger that an expert testimony will be given undue weight by the jury does exist. See United States v. Brawner, 471 F.2d 969 (D.C.Cir. 1972) (noting the influence of expert testimony in prosecutions in which the defendant's sanity is an issue); United States v. Gold, 661 F.Supp 1127, 1129-30 (D.D.C. 1987). Consequently, the Committee has decided that a specific instruction that an expert's opinion should be evaluated along with all other evidence is appropriate.

An instruction on "lay" opinion generally is not needed. There may be unusual circumstances here one is called for: a case in which such testimony is of great significance or in which there is both significant "expert" and "lay" opinion testimony. The following is recommended:

You have heard some witnesses give opinions about ____. The fact that a witness has stated an opinion does not mean you are required to accept it. Give the opinion whatever weight you think it deserves, considering the witness's reasons for the opinion and all of the other evidence in the case.

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

A specific instruction on witness identification must be given when identification is in issue.  United States v. Anderson, 730 F.2d 1254, 1257-58 (7th Cir. 1984). The present instruction is extracted from the recommended instruction in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. (1972), and incorporates the standard credibility instructions while attempting to eliminate some of the confusion of Telfaire. The Committee believes that elaboration on the specific circumstances surrounding the identification is best left to argument.

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26.3 Prior Inconsistent Statements

You have heard evidence that before the trial [a] witness[es] made [a] statement[s] that may be inconsistent with the witness[es]’s testimony here in court. If you find that it is inconsistent, you may consider the earlier statement [only] in deciding the truthfulness and accuracy of that witness’s testimony in this trial. [You many not use it as evidence of the truth of the matters contained in that prior statement.] [If that statement was made under oath, you many also consider it as evidence of the truth of the matters contained in that prior statement.]

Three possible situations may arise at trial: prior inconsistent statements of witnesses have been admitted (1) that are all admissible only to impeach, (2) that are all admissible substantively under FRE 801(d)(1)(A) (and are also admissible to impeach), or (3) some of both types of statements have been admitted. This instruction should be adapted to fit whichever of these situations applies. In the third situation, the court should identify the use of the oath as the factor permitting certain inconsistent witness statements to be used substantively.

The Committee does not offer an instruction on the substantive use of out-of-court statements of witnesses under FRE 801(d)(1)(B) (consistent statement used to rehabilitate), but courts may craft one when appropriate.

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26.3 Prior Inconsistent Statements

A statement made by a defendant before trial that is inconsistent with the defendant’s testimony here in court may be used by you as evidence of the truth of the matters contained in it, and also in deciding the truthfulness and accuracy of that defendant’s testimony in this trial.

This instruction should be given only if a defendant testifies and inconsistent statements by that defendant are admitted that also qualify for substantive use under FRE 801(d)(2)(A). The court may, if appropriate, craft instructions applicable to statements of others attributable to and admitted substantively against a defendant under one of the other subsections of FRE 801(d)(2).

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27.4 Impeachment Of Witness (Non-Defendant) By Prior Conviction

You have heard evidence that __________ has been convicted of a crime. You may consider this evidence only in deciding whether ___________’s testimony is truthful in whole, in part, or not at all. You may not consider this evidence for any other purpose.

The admissibility of prior convictions to impeach a witness’ credibility is governed by FRE 609 [(a) General Rule; 609(b) (Time Limit); 609(c) (Effect of pardon, annulment); 609(d) (Juvenile adjudications); 609(e) (Pendency of appeal).] . See Committee Comment accompanying Instruction 3.05 –"Impeachment--Defendant--Convictions." Only one condition to admissibility of convictions to impeach witnesses other than the defendant requires special attention. FRE 609(a)(1) governing convictions other than those involving dishonesty or false statement requires consideration of the prejudicial effect of the evidence to the defendant. Congress considered the danger of prejudice such as damage to reputation that revelation of a conviction might pose to a witness other than the defendant and decided that it should not prohibit the admission of the impeaching evidence.

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26.11 Character And Reputation Evidence

You have heard [reputation/opinion] evidence about the character trait of ________ for truthfulness [or untruthfulness]. You should consider this evidence in deciding the weight that you will give to ______’s testimony.

See FRE 404(a)(2), 404(a)(3), and 608 [608(a) Opinion and reputation evidence; 608(b) Specific instances of conduct].

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25.5 Witness Immunity

25.6 Accomplices: Cautionary Instructions

25.7.2 Cautionary Instruction: Addict-Informer

25.7.3 Informant Testimony Requires Greater Care And Caution Than Ordinary Witness

25.7.5 Interest Of Witness In Result Of Trial: Testimony May Still Be Believed

Immunized witness: This instruction is designed to be used in normal situations involving a general grant of immunity as provided for in 18 USC 6002. If in a particular case a witness receives a promise from the government which includes elements beyond the scope of the immunity provided for in 18 USC 6002, there should be an appropriate modification of this instruction to reflect those additional elements.

Informer: The Supreme Court acknowledged, in On Lee v. United States, 343 U.S. 747, 757 (1952), that the use of informers "may raise serious questions of credibility. To the extent that they do, a defendant is entitled to . . . . have the issues submitted to the jury with careful instructions."

The Court has never specifically articulated what is to be included in these "careful instructions" but approved the cautionary "interested witness" instruction given in Hoffa v. United States, 385 U.S. 293, 311-12 & n. 14 (1966).

The decision as to whether a particular witness is an informer and if so, whether the defendant is entitled to a special cautionary instruction must be made by the court on a case-by-case basis.

The case law clearly identifies as an informer the witness who is a narcotic user or addict and is testifying to either gain some advantage, or avoid some disadvantage, or who is paid on a ‘contingency fee’ basis by the government. See United States v. Rodgers, 755 F.2d 533, 549-50 (7th Cir.), cert. denied, 473 U.S. 907 (1985) (instruction unnecessary if unreliability sufficiently highlighted elsewhere).

Also generally included are witnesses who are paid (in cash or other benefits) for their testimony in a specific case on a continuing basis by the government. United States v. Lee, 506 F.2d 111, 122-23 (D.C. Cir. 1974), cert. denied, 421 U.S. 1002 (1975).

The Seventh Circuit appears to follow this pattern and had approved the giving of a special informer instruction in certain cases. Brandes v. Burbank, 613 F.2d 658, 669 (7th Cir. 1980) ("While it is a general rule that a large discretion is vested in a trial judge as to the language to be used in an instruction, . . . . this does not mean that an instruction essential to the jury’s understanding of the case should be omitted."); United States v. Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979) ("We decline to apply under our supervisory powers . . . . that all contingent fee arrangements with informers are invalid. The method of payment is properly a matter for the jury to consider in weighing the credibility of the informant."); United States v. Rajewski, 526 F.2d 149, 159-60 (7th Cir. 1975), cert. denied, 426 U.S. 908 (1976); United States v. Gardner, 516 F.2d 334, 343-44 n. 4 (7th Cir.), cert. denied, 423 U.S. 861 (1975). However, in other cases, where neither corroboration nor materiality were at issue, the court has indicated that while the giving of the instruction may be "well-advised", it is not reversible error to refuse to do so. United States v. Booker, 480 F.2d 1310, 1311 (7th Cir. 1973); United States v. Green, 327 F.2d 715, 718 (7th Cir.), cert. denied, 377 U.S. 944 (1964).

Witness who has pled guilty: This instruction is recommended for use in trials in which a witness testifies after having pleaded guilty to an offense arising from the same occurrence for which the defendant is on trial and the jury knows of the plea. Because of the skepticism with which such testimony is received, the phrase "caution and great care" is used here, as in the Accomplice instruction. The Committee suggests that this phrase is adequate whether the testimony is inculpatory or exculpatory of the defendant on trial.

If evidence of the witness’ plea is received, it may only be used for the purpose of impeachment or to reflect on the credibility of the witness and the jury should be so instructed. United States v. Fleetwood, 528 F.2d 528 (5th Cir. 1976); United States v. Braxton, 877 F. 2d 556, 564 (7th Cir. 1989).

At the request of the defendant this instruction should be given immediately after the plea is admitted and repeated with the general instructions at the end of the trial. See United States v. Bryza, 522 F.2d 414, 425 (7th Cir. 1975), cert. denied, 426 U.S. 912 (1976); United States v. Johnson, 26 F.3d 669, 677-80 (7th Cir.), cert. denied, 115 S.Ct. 344 (1994). The general rule is that guilty pleas should only be used to attack credibility. However, admissibility has been broadened to include evidence of a guilty plea to foreclose "the possibility that the government had singled out [the defendant] for prosecution, while permitting his co-defendant to go free", or to "‘blunt the impact of cross examination and to avoid the impression that the government was concealing the information.’" United States v. Sanders, 893 F.2d 133, 136, 29 FRE Serv. 328 (7th Cir.), cert. denied, 496 U.S. 907 (1990)(citations omitted).

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Chapter 33: Inference From Possession Of Recently Stolen Property

See Barnes v. United States, 412 U.S. 837 (1973).

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25.3 Charts, Summaries, Etc.

Certain summaries are in evidence. They truly and accurately summarize the contents of voluminous books, records or documents, and should be considered together with and in the same way as all other evidence in the case.

This instruction is based on FRE 1006 which permits summaries to be admitted as evidence without admission of the underlying documents as long as the opposing party has had an opportunity to examine and copy the documents at a reasonable time and place. See United States v. Smyth, 556 F.2d 1179, 1184 (5th Cir.), cert. denied, 434 U.S. 862 (1977). The Rules contemplate that the summaries will not be admitted until the court has made a preliminary ruling as to their accuracy. See FRE 104 [104(a) Questions of admissibility generally; 104(b) Relevancy conditioned on fact; 104(c) Hearing of jury] ;United States v. Smyth, supra.

This instruction should only be given when the accuracy and authenticity of the exhibits are not in question.

This instruction is not necessary if a stipulation instruction on other stipulated matters has been given.

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25.3 Charts, Summaries, Etc.

Certain summaries are in evidence. Their accuracy has been challenged by [the government] [the defendant]. Thus, the original materials upon which the exhibits are based have also been admitted into evidence so that you may determine whether the summaries are accurate.

Committee Comment

FRE 1006 provides that the "court may order" the underlying documents be produced in court. Thus, where the court determines the summaries might be helpful they may be admitted despite objection together with the underlying documents. See generally 6 Weinstein's Federal Evidence ¶ 1006.05[5] (2d ed. 1997).

This instruction is not intended to cover the situation where some or all of the underlying materials are unavailable.

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25.9 Electronic Recordings

Committee Comment

Some judges may prefer to allow the jury to take all of the transcripts along with the exhibits admitted in evidence. No particular practice is prescribed in this regard. The language in double brackets should be used only when videotape recordings are in evidence.

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25.9.4 Foreign Language Recording

Among the exhibits admitted during the trial were recordings that contained conversations in the _________ language. You were also provided with English transcripts of those conversations.

The transcripts were provided to you [by the government] so that you could consider the content of the conversations on the recordings.

Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the meaning 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. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.

In a case where videotape recordings make it possible to see the person as they speak, the jury should be instructed 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."

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Chapter 37: Motive

The Committee recommends that no instruction be given on this subject.

Instructions on motive have been used either to enunciate its immateriality to the proof of the case or to distinguish it from intent. IPI-Criminal 3.04; 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 17.06 (4th ed. 1992). The Committee believes that neither of these purposes can be successfully accomplished through an instruction.

United States v. Pomponio, 429 U.S. 10 (1976) demonstrates the two entirely different meanings of the word "motive," either as a synonym for intent or a reason for acting. Only the former meaning is material to jury deliberations. To specifically define motive, then to explain its immateriality for a purpose other than one probative of intent, only creates confusion far greater than any clarification an instruction might accomplish.

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34.1 Opposing Or Limiting Consciousness Of Guilt Instructions

34.2 General Instructional Principles

34.3 Flight

The Committee recommends that no instruction be given on this subject.

Evidence of flight, in appropriate circumstances, is a relevant circumstance evidencing a consciousness of guilt. Any argument based upon it is proper. But the facts of flight are frequently contested and their relevance frequently disputed. An instruction on the subject gives undue weight to a particular piece of evidence which the Committee feels should be avoided. For discussions of the dangers of giving a flight instruction, see United States v. Jackson, 572 F.2d 636 (7th Cir. 1978), United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993), cert. denied, 114 S.Ct. 1224 (1994), United States v. Williams, 33 F.3d 876, 879 (7th Cir. 1994), cert. denied, 115 S.Ct. 1383 (1995).

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25.8 Dying Declaration

The Committee recommends that no instruction be given on this subject. FRE 804(b)(2) permits the introduction of dying declarations only in prosecutions for homicide. Although there are decisions to the contrary, the Committee believes that the conditions of admissibility are questions to be determined by the court under FRE 104(a). See 5 Wigmore on Evidence § 1451 (Chadbourn rev. 1974); 4 Muller & Kirkpatrick, Federal Evidence §495 (2d ed. 1994). An instruction on this subject is, therefore, unnecessary. The weight which should be given to a particular declaration is a proper subject of final argument. See McCormick on Evidence § 314 at 333 (4th ed. 1992).

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34.1 Opposing Or Limiting Consciousness Of Guilt Instructions

34.2 General Instructional Principles

34.4 False Statements

The Committee is of the opinion that an instruction on this subject should not be given. The general subject is adequately covered in other instructions, and the specific references to evidence are likely to be viewed by the jury as judge's comments on the evidence.

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27.2.13 Testimony Of A Child: Cautionary Instruction

The Committee recommends no instruction on child witness since it is covered by Instruction 1.03 "Testimony of Witnesses (Deciding What to Believe)."

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36.2 Missing Witness

It was particularly within the power of the (government) (defense) to produce _____, who could have given material testimony on an issue in the case. The (government's) (defense's) failure to call ______ may give rise to an inference that his testimony would be unfavorable to it.

You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

This instruction is taken from United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025 (1976), where the Seventh Circuit noted that two requirements must be met "before a party can raise to the jury the possibility of drawing an inference from the absence of a witness . . . . " Id. at 926. Thus the trial court must make an advance ruling before the instruction may be given or the inference argued to the jury. See also United States v. Rollins, 862 F.2d 1282, 1297-99 (7th Cir. 1988), cert. denied, 490 U.S. 1074 (1989); United States v. Valles, 41 F.3d 355, 360(7th Cir. 1994). Regarding argument on this issue, see United States v. Sblendorio, 830 F.2d1382, 1390-94 (7th Cir. 1987), cert. denied, 484 U.S. 1068 (1988).

The first requirement is that the absent witness is "peculiarly within the other party's power to produce." 537 F.2d at 926. The court noted that this occurs when the witness is (a) physically available to only one party or (b) when the witness "has a relationship with the opposing party "that would in a pragmatic sense make his testimony unavailable to the opposing party regardless of physical availability." Id. (quoting Yumich v. Cotter, 452 F.2d 59,64 (7th Cir. 1971), cert. denied, 410 U.S. 908 (1973)).

Obvious examples of persons physically available to only one party are witnesses, like informers, whose names or addresses are unknown to the other party. See United States v. Tucker, 552 F.2d 202, 209-10 (7th Cir. 1977); United States v. Valles, 41 F.3d 355, 358 (7th Cir. 1994) ("While a defendant can overcome the confidential informant privilege by demonstrating a need for the information, he bears this burden in the face of an assumption that the privilege should apply."). Persons pragmatically unavailable to one party are law enforcement officers or other persons closely associated with one party. See United States v. Mahone, supra at 926; Yumich v.Cotter, supra at 64. In Yumich, the court stated, "where there is likelihood of bias on the part of the person not called as a witness in favor of one party, 'that person is not, in a true sense, "equally available" to both parties.'" 452 F.2d at 64.

The second requirement is a showing that the absent witness' testimony would "elucidate issues in the case." United States v. Mahone, supra at 927. Where the testimony would be merely cumulative, see United States v. Johnson, 467 F.2d 804, 808 (1st Cir. 1972), cert. denied, 410

U.S. 909 (1973) and United States v. Warwick, 695 F.2d 1063, 1069 (7th Cir. 1982), or where itwould be irrelevant to the issues in the case, United States v. Emalfarb, 484 F.2d 787 (7th Cir.), cert. denied, 414 U.S. 1064 (1973), no inference is permissible. See Givens v. United States, supra. In Mahone, the Seventh Circuit noted that the party requesting the missing witness instruction may ask the court to direct the witness to tell counsel what witness would say if called. 537 F.2d at 927 n. 4. The court also noted that in cases where it is "debatable" whether the witness' testimony would be elucidative, the giving of the instruction is within the trial court's discretion. Id. at 927. See also United States v. Bautista, 509 F.2d 675 (9th Cir.), cert. denied, 421 U.S. 976 (1975). The trial court may, in an appropriate case, refuse to give the instruction but allow counsel to argue the inference to the jury. Where the witness is equally available to both parties, no instruction should be given. Nor should the instruction be given where it could be construed as a comment either directly or indirectly on the defendant's failure to testify. United States v. Keller, 512 F.2d 182, 186 (3d Cir. 1975); United States v. Miceli, 446 F.2d 256, 260 (1st Cir. 1971).

The instruction is couched in terms of an inference rather than a presumption because of the constitutional difficulties presumptions create in criminal cases. See United States v. Lake, 482 F.2d 146, 148 (9th Cir. 1973).