8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 12: Preliminary Instructions

Ladies and gentlemen: I shall take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I shall give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions - both those I give you now and those I give you later - are equally binding on you and must be followed.

This is a criminal case, brought against the defendant[s] by the United States Government. The defendant[s] [is] [are] charged with _____________________.¹ [That charge is] [Those charges are] set forth in what is called an indictment[,] [which reads as follows: (insert)] [which I will summarize as follows: (insert)] [which I will ask the government attorney to summarize for you].² You should understand that an indictment is simply an accusation. It is not evidence of anything. The defendant[s] [has] [have] pleaded not guilty, and [is] [are] presumed to be innocent unless and until proved guilty beyond a reasonable doubt.³

It will be your duty to decide from the evidence whether [the] [each] defendant is guilty or not guilty of the crime[s] charged. From the evidence, you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Finally, please remember that only [this defendant] [these defendants], not anyone else, [is] [are] on trial here, and that [this defendant] [these defendants] [is] [are] on trial only for the crime[s] charged, not for anything else.

1. The description of the offense should not track statutory language, but rather should be a simple, general statement (e.g., "unlawfully importing cocaine;" "embezzling bank funds"). Statutory citations are unnecessary.

2. Depending on the length and complexity of the indictment and the individual practices of each district judge, the indictment may be read, summarized by the court, summarized by the prosecutor or not read or summarized, depending on what is necessary to assist the jury in understanding the issues before it.

3. A brief summary of the defense may be included here if requested by the defendant.

See Introductory Comment, Section 1.00, supra.

(For 2008 version see below).

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2008 Version

Ladies and gentlemen: I shall take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I shall give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions - both those I give you now and those I give you later - are equally binding on you and must be followed.

This is a criminal case, brought against the defendant[s] by the United States Government. The defendant[s] [is] [are] charged with _____________________.¹ [That charge is] [Those charges are] set forth in what is called an indictment[,] [which reads as follows: (insert)] [which I will summarize as follows: (insert)] [which I will ask the government attorney to summarize for you].² You should understand that an indictment is simply an accusation. It is not evidence of anything. The defendant[s] [has] [have] pleaded not guilty, and [is] [are] presumed to be innocent unless and until proved guilty beyond a reasonable doubt.³

It will be your duty to decide from the evidence whether [the] [each] defendant is guilty or not guilty of the crime[s] charged. From the evidence, you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Finally, please remember that only [this defendant] [these defendants], not anyone else, [is] [are] on trial here, and that [this defendant] [these defendants] [is] [are] on trial only for the crime[s] charged, not for anything else.

1. The description of the offense should not track statutory language, but rather should be a simple, general statement (e.g., "unlawfully importing cocaine;" "embezzling bank funds"). Statutory citations are unnecessary.

2. Depending on the length and complexity of the indictment and the individual practices of each district judge, the indictment may be read, summarized by the court, summarized by the prosecutor or not read or summarized depending on what is necessary to assist the jury in understanding the issues before it.

3. A brief summary of the defense may be included here if requested by the defendant.

See Introductory Comment, Section 1.00, supra.

(For 2006 version see below)

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2006 Version

Ladies and gentlemen: I shall take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I shall give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions - both those I give you now and those I give you later - are equally binding on you and must be followed.

This is a criminal case, brought against the defendant[s] by the United States Government. The defendant[s] [is] [are] charged with _____________________.¹ [That charge is] [Those charges are] set forth in what is called an indictment[,] [which reads as follows: (insert)] [which I will summarize as follows: (insert)] [which I will ask the government attorney to summarize for you].² You should understand that an indictment is simply an accusation. It is not evidence of anything. The defendant[s] [has] [have] pleaded not guilty, and [is] [are] presumed to be innocent unless and until proved guilty beyond a reasonable doubt.³

It will be your duty to decide from the evidence whether [the] [each] defendant is guilty or not guilty of the crime[s] charged. From the evidence, you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Finally, please remember that only [this defendant] [these defendants], not anyone else, [is] [are] on trial here, and that [this defendant] [these defendants] [is] [are] on trial only for the crime[s] charged, not for anything else.

Notes on Use

1. The description of the offense should not track statutory language, but rather should be a simple, general statement (e.g., "unlawfully importing cocaine;" "embezzling bank funds"). Statutory citations are unnecessary.

2. Depending on the length and complexity of the indictment and the individual practices of each district judge, the indictment may be read, summarized by the court, summarized by the prosecutor or not read or summarized depending on what is necessary to assist the jury in understanding the issues before it.

3. A brief summary of the defense may be included here if requested by the defendant.

See Introductory Comment, Section 1.00, supra.

For 2000 version see below

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2000 Version

1.01 GENERAL: NATURE OF CASE; NATURE OF INDICTMENT; BURDEN OF PROOF; 
PRESUMPTION OF INNOCENCE; DUTY OF JURY; CAUTIONARY

Ladies and gentlemen: I shall take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I shall give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions - both those I give you now and those I give you later - are equally binding on you and must be followed.

This is a criminal case, brought against the defendant[s] by the United States Government. The defendant[s] [is] [are] charged with _________________________________.1 [That charge is] [Those charges are] set forth in what is called an indictment[,] [which reads as follows: (insert)] [which I will summarize as follows: (insert)] [which I will ask the government attorney to summarize for you].2 You should understand that an indictment is simply an accusation. It is not evidence of anything. The defendant[s] [has] [have] pleaded not guilty, and [is] [are] presumed to be innocent unless and until proved guilty beyond a reasonable doubt.3

It will be your duty to decide from the evidence whether [the] [each] defendant is guilty or not guilty of the crime[s] charged. From the evidence, you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Finally, please remember that only [this defendant] [these defendants], not anyone else, [is] [are] on trial here, and that [this defendant] [these defendants] [is] [are] on trial only for the crime[s] charged, not for anything else.

See Introductory Comment, Section 1.00, supra.

1. The description of the offense should not track statutory language, but rather should be a simple, general statement (e.g., "unlawfully importing cocaine;" "embezzling bank funds"). Statutory citations are unnecessary.

2. Depending on the length and complexity of the indictment and the individual practices of each district judge, the indictment may be read, summarized by the court, summarized by the prosecutor or not read or summarized depending on what is necessary to assist the jury in understanding the issues before it.

3. A brief summary of the defense may be included here if requested by defendant.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

[In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] charged, which the Government must prove beyond a reasonable doubt to make its case:

One, ___________________________________________________

Two, ______________________________________________ ; and

Etc., ____________________________________________________.¹

You should understand, however, that what I have just given you is only a preliminary outline. At the end of the trial I shall give you a final instruction on these matters. If there is any difference between what I just told you, and what I tell you in the instructions I give you at the end of the trial, the instructions given at the end of the trial must govern you.]

1. List the elements of the offense charged in the indictment. If more than one offense is charged, each offense should be referred to separately (e.g.: "As to Count I, which charges ______________, the elements are: ________________"). Statutory citations are unnecessary. For guidance in framing the elements, see Instruction 3.09 and Section 6, infra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1, Commentary (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.04 (1998); Ninth Circuit Criminal Jury Instructions § 1.2 (2000)

This is an optional instruction; and some care should be exercised in using it. The Committee recommends that it not be utilized unless there has first been a discussion with counsel concerning any problems that it might present.

(For 2008 version see below).

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2008 Version

[In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] charged, which the Government must prove beyond a reasonable doubt to make its case:

One, ___________________________________________________

Two, ______________________________________________ ; and

Etc., ____________________________________________________.¹

You should understand, however, that what I have just given you is only a preliminary outline. At the end of the trial I shall give you a final instruction on these matters. If there is any difference between what I just told you, and what I tell you in the instructions I give you at the end of the trial, the instructions given at the end of the trial must govern you.]

1. List the elements of the offense charged in the indictment. If more than one offense is charged, each offense should be referred to separately (e.g.: "As to Count I, which charges ______________, the elements are: ________________"). Statutory citations are unnecessary. For guidance in framing the elements, see Instruction 3.09 and Section 6, infra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1, Commentary (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.04 (1998); Ninth Circuit Criminal Jury Instructions § 1.2 (2000)

This is an optional instruction; and some care should be exercised in using it. The Committee recommends that it not be utilized unless there has first been a discussion with counsel concerning any problems that it might present.

(For 2006 version see below)

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1. List the elements of the offense charged in the indictment. If more than one offense is charged, each offense should be referred to separately (e.g.: "As to Count I, which charges ______________, the elements are: ________________"). Statutory citations are unnecessary. For guidance in framing the elements, see Instruction 3.09 and Section 6, infra.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1, Commentary (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.04 (1998); Ninth Circuit Criminal Jury Instructions § 1.2 (2000)

This is an optional instruction; and some care should be exercised in using it. The Committee recommends that it not be utilized unless there has first been a discussion with counsel concerning any problems that it might present.

For 2000 version see below

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2000 Version

1.02 ELEMENTS OF THE OFFENSE (PRELIMINARY)

[In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] charged, which the Government must prove beyond a reasonable doubt to make its case:

One, _______________________________________________________________

Two,___________________________________________________________ ; and

Etc., _______________________________________________________________.1

You should understand, however, that what I have just given you is only a preliminary outline. At the end of the trial I shall give you a final instruction on these matters. If there is any difference between what I just told you, and what I tell you in the instructions I give you at the end of the trial, the instructions given at the end of the trial must govern you.]

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 10.01 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 1, Commentary (1988); Ninth Cir. Crim. Jury Instr. 1.2 (1997).

This is an optional instruction; and some care should be exercised in using it. The Committee recommends that it not be utilized unless there has first been a discussion with counsel concerning any problems that it might present.

1. List the essential elements of the offense charged in the indictment. If more than one offense is charged, each offense should be referred to separately (e.g.: "As to Count I, which charges ______________, the elements are: ________________"). Statutory citations are unnecessary. For guidance in framing the elements, see Instruction 3.09 and Section 6, infra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 26 Limited Purpose Evidence

I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, documents and other things received as exhibits, any facts that have been stipulated--that is, formally agreed to by the parties, and any facts that have been judicially noticed--that is, facts which I say you may, but are not required to, accept as true, even without evidence.

Certain things are not evidence. I shall list those things for you now:

1. Statements, arguments, questions and comments by lawyers representing the parties in the case are not evidence.

2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

3. Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.

4. Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.

Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You are instructed that you should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 11.03, 11.08, 11.09, 12.03, 12.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.05 (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.06 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.04 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit §§ 1.02, 1.06 (1998); Ninth Circuit Criminal Jury Instructions §§ 1.3, 1.4, 1.5, 1.7 (2000).

See also Instruction 3.03, infra.

Stipulated facts and judicially noticed facts are further explained in Instructions 2.02, 2.03 and 2.04, infra. The Committee recommends giving the appropriate one of those instructions the first time evidence is received either by way of stipulation or judicial notice, even though a brief definition is in this instruction.

(For 2008 version see below).

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2008 Version

I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, documents and other things received as exhibits, any facts that have been stipulated--that is, formally agreed to by the parties, and any facts that have been judicially noticed--that is, facts which I say you may, but are not required to, accept as true, even without evidence.

Certain things are not evidence. I shall list those things for you now:

1. Statements, arguments, questions and comments by lawyers representing the parties in the case are not evidence.

2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

3. Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.

4. Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.

Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You are instructed that you should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 11.03, 11.08, 11.09, 12.03, 12.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.05 (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.06 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.04 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit §§ 1.02, 1.06 (1998); Ninth Circuit Criminal Jury Instructions §§ 1.3, 1.4, 1.5, 1.7  (2000).

See also Instruction 3.03, infra.

Stipulated facts and judicially noticed facts are further explained in Instructions 2.02, 2.03 and 2.04, infra. The Committee recommends giving the appropriate one of those instructions the first time evidence is received either by way of stipulation or judicial notice, even though a brief definition is in this instruction.

(For 2006 version see below)

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I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, documents and other things received as exhibits, any facts that have been stipulated--that is, formally agreed to by the parties, and any facts that have been judicially noticed--that is, facts which I say you may, but are not required to, accept as true, even without evidence.

Certain things are not evidence. I shall list those things for you now:

1. Statements, arguments, questions and comments by lawyers representing the parties in the case are not evidence.

2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

3. Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.

4. Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.

Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You are instructed that you should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 11.03, 11.08, 11.09, 12.03, 12.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.05 (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.06 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.04 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit §§ 1.02, 1.06 (1998); Ninth Circuit Criminal Jury Instructions §§ 1.3, 1.4, 1.5, 1.7 (2000).

See also Instruction 3.03, infra.

Stipulated facts and judicially noticed facts are further explained in Instructions 2.02, 2.03 and 2.04, infra. The Committee recommends giving the appropriate one of those instructions the first time evidence is received either by way of stipulation or judicial notice, even though a brief definition is in this instruction.

For 2000 version see below

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2000 Version

1.03 EVIDENCE; LIMITATIONS

I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, documents and other things received as exhibits, any facts that have been stipulated--that is, formally agreed to by the parties, and any facts that have been judicially noticed--that is, facts which I say you may, but are not required to, accept as true, even without evidence.

Certain things are not evidence. I shall list those things for you now:

1. Statements, arguments, questions and comments by lawyers representing the parties in the case are not evidence.

2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

3. Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.

4. Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.

Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You are instructed that you should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 10.01, 12.04 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Ninth Cir. Crim. Jury Instr. 1.3, 1.4, 1.5 (1997).

See also Instruction 3.03, infra.

Stipulated facts and judicially noticed facts are further explained in Instructions 2.02, 2.03 and 2.04, infra. The Committee recommends giving the appropriate one of those instructions the first time evidence is received either by way of stipulation or judicial notice, even though a brief definition is in this instruction.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

16.3 Duty Of Jury As To The Evidence

(See final paragraph of Instruction 1.03, supra.)

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.05 (1998); Ninth Circuit Criminal Jury Instructions § 1.6 (2000) and Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988) for examples of a direct and circumstantial evidence instruction as part of the preliminary instructions. See further 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.04 (5th ed. 2000), the substance of which was approved in United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976). See also Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.05 (1998); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997).

The Committee believes that the last paragraph of Instruction 1.03 is sufficient and that in the ordinary case it is unnecessary to attempt to define or distinguish direct and circumstantial evidence.

(For 2008 version see below).

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2008 Version

[See final paragraph of Instruction 1.03, supra.]

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.05 (1998); Ninth Circuit Criminal Jury Instructions § 1.6 (2000) and Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988) for examples of a direct and circumstantial evidence instruction as part of the preliminary instructions. See further 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.04 (5th ed. 2000), the substance of which was approved in United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976). See also Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.05 (1998); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997).

The Committee believes that the last paragraph of Instruction 1.03 is sufficient and that in the ordinary case it is unnecessary to attempt to define or distinguish direct and circumstantial evidence.

(For 2006 version see below)

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[See final paragraph of Instruction 1.03, supra.]

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.05 (1998); Ninth Circuit Criminal Jury Instructions § 1.6 (2000) and Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988) for examples of a direct and circumstantial evidence instruction as part of the preliminary instructions. See further 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.04 (5th ed. 2000), the substance of which was approved in United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976). See also Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.05 (1998); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997).

The Committee believes that the last paragraph of Instruction 1.03 is sufficient and that in the ordinary case it is unnecessary to attempt to define or distinguish direct and circumstantial evidence.

For 2000 version see below

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2000 Version

1.04 DIRECT AND CIRCUMSTANTIAL EVIDENCE

[See final paragraph of Instruction 1.03, supra.]

See Ninth Cir. Crim. Jury Instr. 1.5 (1997) and Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988) for examples of a direct and circumstantial evidence instruction as part of the preliminary instructions. See further 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.04 (4th ed. 1992), the substance of which was approved in United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976), cert. denied, 433 U.S. 907 (1977). See also Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 1.05 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997).

The Committee believes that the last paragraph of Instruction 1.03 is sufficient and that in the ordinary case it is unnecessary to attempt to define or distinguish direct and circumstantial evidence.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

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Chapter 27 Witness Credibility

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

[In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe].¹

1. Whether the court wishes to include this language or other additional detail in its preliminary instructions is optional.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.06 (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.08 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.07 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.03 (1998); Ninth Circuit Criminal Jury Instructions § 1.8 (2000).

See also Instruction 3.04, infra.

For an approved instruction on the credibility of a child witness, see United States v. Butler, 56 F.3d 941 (8th Cir. 1995).

A district court’s credibility instruction will be affirmed if it adequately calls to the jury’s attention the factors which may impact a witnesses’ credibility. United States v. Stevens, 918 F.2d 1383, 1385 (8^th Cir. 1990). Special instructions dealing with factors such as immunity agreements, prior convictions and governmental payments have been approved. United States v. Dierling, 131 F.3d 722, 734 (8^th Cir. 1997). The Eighth Circuit has also recognized a special instruction may be appropriate in considering the testimony of addict - informants. United States v. Parker, 32 F.3d 395, 401 (8^th Cir. 1994)

(For 2008 version see below).

****************************************************************************************************************************

2008 Version

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

[In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe].¹

1. Whether the court wishes to include this language or other additional detail in its preliminary instructions is optional.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.06 (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.08 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.07 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.03 (1998); Ninth Circuit Criminal Jury Instructions § 1.8 (2000).

See also Instruction 3.04, infra.

For an approved instruction on the credibility of a child witness, see United States v. Butler, 56 F.3d 941 (8th Cir. 1995).

A district court’s credibility instruction will be affirmed if it adequately calls to the jury’s attention the factors which may impact a witnesses’ credibility. United States v. Stevens, 918 F.2d 1383, 1385 (8^th Cir. 1990). Special instructions dealing with factors such as immunity agreements, prior convictions and government payments have been approved. United States v. Dierling, 131 F. 3d 722, 734 (8^th Cir. 1997). The Eighth Circuit has also recognized a special instruction may be appropriate in considering the testimony of addict - informants. United States v. Parker, 32 F. 3d 395, 401 (8^th Cir. 1994)

(For 2006 version see below)

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In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

[In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe].1

1. Whether the court wishes to include this language or other additional detail in its preliminary instructions is optional.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.06 (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.08 (2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.07 (1991); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.03 (1998); Ninth Circuit Criminal Jury Instructions § 1.8 (2000).

See also Instruction 3.04, infra.

For an approved instruction on the credibility of a child witness, see United States v. Butler, 56 F.3d 941 (8th Cir. 1995).

A district court’s credibility instruction will be affirmed if it adequately calls to the jury’s attention the factors which may impact a witnesses’ credibility. United States v. Stevens, 918 F.2d 1383, 1385 (8th Cir. 1990). Special instructions dealing with factors such as immunity agreements, prior convictions and government payments have been approved. United States v. Dierling, 131 F. 3d 722, 734 (8th Cir. 1997). The Eighth Circuit has also recognized a special instruction may be appropriate in considering the testimony of addict - informants. United States v. Parker, 32 F. 3d 395, 401 (8th Cir. 1994).

For 2000 version see below

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2000 Version

1.05 CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

[In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe].1

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 10.01 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 1.03 (1999); Ninth Cir. Crim. Jury Instr. 1.7 (1997). See generally West Key # "Criminal Law" 785(1-16).

See also Instruction 3.04, infra.

For an approved instruction on the credibility of a child witness, see United States v. Butler, 56 F.3d 941 (8th Cir. 1995).

Such factors may be considered by the jury in determining the credibility of the witness. Clark v. United States, 391 F.2d 57, 60 (8th Cir.), cert. denied, 393 U.S. 873 (1968). In United States v. Phillips, 522 F.2d 388, 390 n.3 (8th Cir. 1975), the trial court gave an even more detailed instruction on such factors as part of its preliminary instructions:

In considering the weight and value of the testimony of any witness you may take into consideration the appearance, attitude and behavior of the witness, the interest of the witness in the outcome of the case, the relation of the witness to the government or any of the defendants, the inclination of a witness to speak truthfully or not, the probability of the witness' statements, and all other facts and circumstances in evidence. Thus, you may give the testimony of any witness just such weight and value as you may believe the testimony of such witness is entitled to receive. (Emphasis omitted.)

In the final charge in Phillips, a more detailed credibility instruction was given to the jury.

1. Whether the court wishes to include this language or other additional detail in its preliminary instructions is optional.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

16.8.3 How Juror Notes Should Be Used

At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read [play]¹ back lengthy testimony. You must pay close attention to the testimony as it is given.

[If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness.]

[When you leave at night, your notes will be secured and not read by anyone.]²

1. Use the word "play" if electronic recording system is used and testimony will be "played" back rather than read back to the jury.

2. The court may wish to describe the method to be used for safekeeping. In a high-profile case, the court may want to give some additional cautionary instructions.

Both the unbracketed and bracketed portions of this instruction are optional. The unbracketed portion may help keep jurors attentive and may discourage requests for lengthy read-backs of testimony. The practice of restricting the reading back of testimony is discretionary. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).

Whether to permit note-taking is within the discretion of the trial judge. United States v. Bassler, 651 F.2d 600, 602 (8^th Cir. 1981). Note-taking is not a favored procedure. Some circuit judges have expressed concern about letting jurors take notes. See United States v. Darden, 70 F.3d 1507, 1536-37 (8th Cir. 1995).

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.02 (2001); Ninth Circuit Criminal Jury Instructions § 1.10, 1.11 (2000); see also 1 and 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 5.11, 10.03 and 10.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 3 (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.08 (1998); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.2, 2.1, 2.2 (1997).

This instruction is identical to Model Instruction 1.04, Eighth Circuit Model Civil Jury Instructions.

(For 2008 version see below).

****************************************************************************************************************************

2008 Version

At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read [play]¹ back lengthy testimony. You must pay close attention to the testimony as it is given.

[If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness.]

[When you leave at night, your notes will be secured and not read by anyone.]²

1. Use the word "play" if electronic recording system is used and testimony will be "played" back rather than read back to the jury.

2. The court may wish to describe the method to be used for safekeeping. In a high profile case, the court may want to give some additional cautionary instructions.

Both the unbracketed and bracketed portions of this instruction are optional. The unbracketed portion may help keep jurors attentive and may discourage requests for lengthy read-backs of testimony. The practice of restricting the reading back of testimony is discretionary. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).

Whether to permit note-taking is within the discretion of the trial judge. United States v. Bassler, 651 F. 2d 600, 602 (8^th Cir. 1981). Note-taking is not a favored procedure. Some circuit judges have expressed concern about letting jurors take notes. See United States v. Darden, 70 F.3d 1507, 1536-37 (8th Cir. 1995).

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.02 (2001); Ninth Circuit Criminal Jury Instructions § 1.10, 1.11 (2000); see also 1 and 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 5.11, 10.03 and 10.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 3 (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.08 (1998); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.2, 2.1, 2.2 (1997).

This instruction is identical to Model Instruction 1.04, Eighth Circuit Model Civil Jury Instructions.

(For 2006 version see below)

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At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read [play]1 back lengthy testimony. You must pay close attention to the testimony as it is given.

[If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness.]

[When you leave at night, your notes will be secured and not read by anyone.]2

1. Use the word "play" if electronic recording system is used and testimony will be "played" back rather than read back to the jury.

2. The court may wish to describe the method to be used for safekeeping. In a high profile case, the court may want to give some additional cautionary instructions.

Both the unbracketed and bracketed portions of this instruction are optional. The unbracketed portion may help keep jurors attentive and may discourage requests for lengthy read-backs of testimony. The practice of restricting the reading back of testimony is discretionary. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).

Whether to permit note-taking is within the discretion of the trial judge. United States v. Bassler, 651 F. 2d 600, 602 (8th Cir. 1981). Note-taking is not a favored procedure. Some circuit judges have expressed concern about letting jurors take notes. See United States v. Darden, 70 F.3d 1507, 1536-37 (8th Cir. 1995).

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.02 (2001); Ninth Circuit Criminal Jury Instructions § 1.10, 1.11 (2000); see also 1 and 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 5.11, 10.03 and 10.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 3 (1988); Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.08 (1998); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.2, 2.1, 2.2 (1997).

This instruction is identical to Model Instruction 1.04, Eighth Circuit Model Civil Jury Instructions.

For 2000 version see below

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2000 Version

1.06 NO TRANSCRIPT AVAILABLE [NOTE-TAKING]

At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read [play]1 back lengthy testimony. You must pay close attention to the testimony as it is given.

[If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness.]

[When you leave at night, your notes will be secured and not read by anyone.]2

Both the unbracketed and bracketed portions of this instruction are optional. The unbracketed portion may help keep jurors attentive and may discourage requests for lengthy read-backs of testimony. The practice of restricting the reading back of testimony is discretionary. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).

Whether to permit note-taking is within the discretion of the trial judge. United States v. Anthony, 565 F.2d 533, 536 (8th Cir. 1977), cert. denied, 434 U.S. 1079 (1978); United States v. Rhodes, 631 F.2d 43, 45 (5th Cir. 1980). Some circuit judges have expressed concern about letting jurors take notes. See United States v. Darden, 70 F.3d 1507, 1536-37 (8th Cir. 1995).

If note-taking is permitted, the Fifth Circuit requires an instruction concerning the use of notes during deliberations. United States v. Rhodes, 631 F.2d at 46 and n.3. The Eighth Circuit has not imposed such a requirement.

See Ninth Cir. Crim. Jury Instr. 1.9, 1.10 (1997). See also 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 10.03 and 10.04 (4th ed. 1992); Federal .Judicial .Center, Pattern Criminal Jury Instructions § 3 (1988); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.2, 2.1, 2.2 (1997). See generally West Key # "Criminal Law" 855(1).

This instruction is identical to Model Instruction 1.04, Eighth Circuit Model Civil Jury Instructions.

1. Use the word "play" if electronic recording system is used and testimony will be "played" back rather than read back to the jury.

2. The court may wish to describe the method to be used for safekeeping. In a high profile case, the court may want to give some additional cautionary instructions.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

16.9 Questions To Witnesses By Jurors

When attorneys have finished their examination of a witness, you may ask questions of the witness (describe procedure to be used here)². If the rules of evidence do not permit a particular question, I will so advise you. Following your questions, if any, the attorneys may ask additional questions.

1. This instruction may be used if the court permits questioning of witnesses by jurors. Various procedures have been used for handling jurors' questions. Some judges require that the questions be in writing, while others permit the jurors to state their questions orally. The procedure employed for taking jurors' questions, considering objections, and posing the questions should be left to the discretion of the judge. The jury should be advised of the procedure to be used.

2. Different methods may be used. For example:

(1) When attorneys have finished their examination of a witness, you may submit a written question or questions if you have not understood something. I will review each question with the attorneys. You may not receive an answer to your question because I may decide that the question is not proper under the rules of evidence. Even if the question is proper, you may not get an immediate answer to your question. For instance, a later witness or an exhibit you will see later in the trial may answer your question.

(2) Most of the testimony will be given in response to questions by the attorneys. Sometimes I may ask questions of a witness. When the attorneys have finished their questioning of a witness and I have finished mine, I shall ask you whether you have any questions for that witness. If you do, direct each of your questions to me, and if I decide that it meets the legal rules, I shall ask it of the witness. After all your questions for a witness have been dealt with, the attorneys will have an opportunity to ask the witness further about the subjects raised by your questions. When you direct questions to me to be asked of the witness, you may state them either orally or in writing.

(3) The court will permit jurors to submit written questions during the course of the trial. Such questions must be submitted to the court, but, depending upon the court's ruling on the questions, the court may not submit them to the witness. The court will endeavor to permit such questions at the conclusion of a witness' testimony.

The Eighth Circuit has held that the practice of allowing juror questions is a matter within the sound discretion of the district court and is not prejudicial per se. United States v. Taylor, 900 F.2d 145, 148 (8^th Cir. 1990). However, the Eighth Circuit has strongly discouraged this practice. United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992). While some courts have found that it is advantageous that jurors become more involved in the trial proceedings and are permitted to address their particular concerns with respect to the issues, see Hener and Penrod, "Increasing Juror’s Participation with Jury Notetaking and Question Asking," 12 Law & Human Behavior 231 (1988); "Toward More Active Juries: Taking Notes and Asking Questions," American Judicature (1991), some courts have perceived dangers in the practice and have strongly criticized the practice. See United States v. Johnson, 892 F.2d 707 (8^th Cir. 1989) (Concurrence by Lay, Chief Judge); United States v. Land, 877 F.2d 17, 19 (8^th Cir. 1989); United States v. Polowichak, 783 F.2d 410, 413 (4^th Cir. 1986); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4^th Cir. 1985). The Eighth Circuit has affirmed jury questioning procedures used by courts when the jury is instructed that it should not draw any factual conclusions from what it observed in the process because it was the judge’s job to determine what questions were proper. United States v. George, 986 F.2d 1176, 1178-79 (8^th Cir. 1993). The Eighth Circuit will affirm a district court’s procedure that provides for debate of questions outside the hearing of the jury and the rejection of any question found objectionable under the rule of evidence. Id.

This instruction is identical to Instruction 1.04A, Eighth Circuit Model Civil Jury Instructions.

(For 2008 version see below).

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2008 Version

When attorneys have finished their examination of a witness, you may ask questions of the witness (describe procedure to be used here)². If the rules of evidence do not permit a particular question, I will so advise you. Following your questions, if any, the attorneys may ask additional questions.

1. This instruction may be used if the court permits questioning of witnesses by jurors. Various procedures have been used for handling jurors' questions. Some judges require that the questions be in writing, while others permit the jurors to state their questions orally. The procedure employed for taking jurors' questions, considering objections, and posing the questions should be left to the discretion of the judge. The jury should be advised of the procedure to be used.

2. Different methods may be used. For example:

(1) When attorneys have finished their examination of a witness, you may submit a written question or questions if you have not understood something. I will review each question with the attorneys. You may not receive an answer to your question because I may decide that the question is not proper under the rules of evidence. Even if the question is proper, you may not get an immediate answer to your question. For instance, a later witness or an exhibit you will see later in the trial may answer your question.

(2) Most of the testimony will be given in response to questions by the attorneys. Sometimes I may ask questions of a witness. When the attorneys have finished their questioning of a witness and I have finished mine, I shall ask you whether you have any questions for that witness. If you do, direct each of your questions to me, and if I decide that it meets the legal rules, I shall ask it of the witness. After all your questions for a witness have been dealt with, the attorneys will have an opportunity to ask the witness further about the subjects raised by your questions. When you direct questions to me to be asked of the witness, you may state them either orally or in writing.

(3) The court will permit jurors to submit written questions during the course of the trial. Such questions must be submitted to the court, but, depending upon the court's ruling on the questions, the court may not submit them to the witness. The court will endeavor to permit such questions at the conclusion of a witness' testimony.

The Eighth Circuit has held that the practice of allowing juror questions is a matter within the sound discretion of the district court and is not prejudicial per se. United States v. Taylor, 900 F. 2d 145, 148 (8^th Cir. 1990). However the Eighth Circuit has strongly discouraged this practice. United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992). While some courts have found that it is advantageous that jurors become more involved in the trial proceedings and are permitted to address their particular concerns with respect to the issues, see Hener and Penrod, Increasing Juror’s Participation with Jury Notetaking and Question Asking, " 12 Law & Human Behavior 231 (1988); "Toward More Active Juries: Taking Notes and Asking Questions," American Judicature (1991), some courts have perceived dangers in the practice and have strongly criticized the practice. See, United States v. Johnson, 892 F. 2d 707 (8^th Cir. 1989) (Concurrence by Lay, Chief Judge); United States v. Land, 877 F. 2d 17, 19 (8^th Cir. 1989); United States v. Polowichak, 783 F. 2d 410, 413 (4^th Cir. 1986); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F. 2d 512, 516 (4^th Cir. 1985). The Eighth Circuit has affirmed jury questioning procedures used by courts when the jury is instructed that it should not draw any factual conclusions from what it observed in the process because it was the judge’s job to determine what questions were proper. United States v. George, 986 F. 2d 1176, 1178-79 (8^th Cir. 1993). The Eighth Circuit will affirm a district court’s procedure that provides for debate of questions outside the hearing of the jury and the rejection of any question found objectionable under the rule of evidence. Id.

This instruction is identical to Instruction 1.04A, Eighth Circuit Model Civil Jury Instructions.

(For 2006 version see below)

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When attorneys have finished their examination of a witness, you may ask questions of the witness (describe procedure to be used here)2. If the rules of evidence do not permit a particular question, I will so advise you. Following your questions, if any, the attorneys may ask additional questions.

1. This instruction may be used if the court permits questioning of witnesses by jurors. Various procedures have been used for handling jurors' questions. Some judges require that the questions be in writing, while others permit the jurors to state their questions orally. The procedure employed for taking jurors' questions, considering objections, and posing the questions should be left to the discretion of the judge. The jury should be advised of the procedure to be used.

2. Different methods may be used. For example:

(1) When attorneys have finished their examination of a witness, you may submit a written question or questions if you have not understood something. I will review each question with the attorneys. You may not receive an answer to your question because I may decide that the question is not proper under the rules of evidence. Even if the question is proper, you may not get an immediate answer to your question. For instance, a later witness or an exhibit you will see later in the trial may answer your question.

(2) Most of the testimony will be given in response to questions by the attorneys. Sometimes I may ask questions of a witness. When the attorneys have finished their questioning of a witness and I have finished mine, I shall ask you whether you have any questions for that witness. If you do, direct each of your questions to me, and if I decide that it meets the legal rules, I shall ask it of the witness. After all your questions for a witness have been dealt with, the attorneys will have an opportunity to ask the witness further about the subjects raised by your questions. When you direct questions to me to be asked of the witness, you may state them either orally or in writing.

(3) The court will permit jurors to submit written questions during the course of the trial. Such questions must be submitted to the court, but, depending upon the court's ruling on the questions, the court may not submit them to the witness. The court will endeavor to permit such questions at the conclusion of a witness' testimony.

The Eighth Circuit has held that the practice of allowing juror questions is a matter within the sound discretion of the district court and is not prejudicial per se. United States v. Taylor, 900 F. 2d 145, 148 (8th Cir. 1990). However the Eighth Circuit has strongly discouraged this practice. United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992). While some courts have found that it is advantageous that jurors become more involved in the trial proceedings and are permitted to address their particular concerns with respect to the issues, see Hener and Penrod, Increasing Juror’s Participation with Jury Notetaking and Question Asking, " 12 Law & Human Behavior 231 (1988); "Toward More Active Juries: Taking Notes and Asking Questions," American Judicature (1991), some courts have perceived dangers in the practice and have strongly criticized the practice. See, United States v. Johnson, 892 F. 2d 707 (8th Cir. 1989) (Concurrence by Lay, Chief Judge); United States v. Land, 877 F. 2d 17, 19 (8th Cir. 1989); United States v. Polowichak, 783 F. 2d 410, 413 (4th Cir. 1986); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F. 2d 512, 516 (4th Cir. 1985). The Eighth Circuit has affirmed jury questioning procedures used by courts when the jury is instructed that it should not draw any factual conclusions from what it observed in the process because it was the judge’s job to determine what questions were proper. United States v. George, 986 F. 2d 1176, 1178-79 (8th Cir. 1993). The Eighth Circuit will affirm a district court’s procedure that provides for debate of questions outside the hearing of the jury and the rejection of any question found objectionable under the rule of evidence. Id.

This instruction is identical to Instruction 1.04A, Eighth Circuit Model Civil Jury Instructions.

For 2000 version see below

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2000 Version

1.06A QUESTIONS BY JURORS1

When attorneys have finished their examination of a witness, you may ask questions of the witness (describe procedure to be used here)2. If the rules of evidence do not permit a particular question, I will so advise you. Following your questions, if any, the attorneys may ask additional questions.

Some judges permit jurors to ask questions of witnesses during the course of both civil and criminal trials. The Eighth Circuit has strongly discouraged this practice. United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992). The advantage of this practice is that jurors become more involved in the trial proceedings and are permitted to address their particular concerns with respect to the issues. See Hener and Penrod, Increasing Jurors' Participation with Jury Notetaking and Question Asking, 12 Law & Human Behavior 231 (1988); "Toward More Active Juries: Taking Notes and Asking Questions," American Judicature (1991). See United States v. Johnson, 914 F.2d 136 (8th Cir. 1990) for a summary of Eighth Circuit opinions on the subject. The court applied the "abuse of discretion" standard of review to questions to which objections were made and the "plain error" rule to questions to which no objections were made. Some perceive dangers in the practice and have criticized it. See United States v. Johnson, 892 F.2d 707 (8th Cir. 1989) (concurrence by Lay, Chief Judge); United States v. Land, 877 F.2d 17, 19 (8th Cir. 1989); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985). The decision to permit questions by jurors, and the procedures employed to control such questions, are within the sound discretion of the trial judge. The Committee takes no position on whether jurors should be allowed to ask questions of witnesses.

This instruction is identical to Instruction 1.04A, Eighth Circuit Model Civil Jury Instructions.

1. This instruction may be used if the court permits questioning of witnesses by jurors. Various procedures have been used for handling jurors' questions. Some judges require that the questions be in writing, while others permit the jurors to state their questions orally. The procedure employed for taking jurors' questions, considering objections, and posing the questions should be left to the discretion of the judge. The jury should be advised of the procedure to be used.

2. Different methods may be used. For example:

(1) When attorneys have finished their examination of a witness, you may submit a written question or questions if you have not understood something. I will review each question with the attorneys. You may not receive an answer to your question because I may decide that the question is not proper under the rules of evidence. Even if the question is proper, you may not get an immediate answer to your question. For instance, a later witness or an exhibit you will see later in the trial may answer your question.

(2) Most of the testimony will be given in response to questions by the attorneys. Sometimes I may ask questions of a witness. When the attorneys have finished their questioning of a witness and I have finished mine, I shall ask you whether you have any questions for that witness. If you do, direct each of your questions to me, and if I decide that it meets the legal rules, I shall ask it of the witness. After all your questions for a witness have been dealt with, the attorneys will have an opportunity to ask the witness further about the subjects raised by your questions. When you direct questions to me to be asked of the witness, you may state them either orally or in writing.

(3) The court will permit jurors to submit written questions during the course of the trial. Such questions must be submitted to the court, but, depending upon the court's ruling on the questions, the court may not submit them to the witness. The court will endeavor to permit such questions at the conclusion of a witness' testimony.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

2.5.10 Record Of Bench Conference

10.1.2 Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions

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

16.13.3 Bench Conference: Cautionary Instructions

During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

See Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.01 ( (2001); Ninth Circuit Criminal Jury Instructions § 2.2 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997).

(For 2008 version see below).

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2008 Version

During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

See Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.01 ( (2001); Ninth Circuit Criminal Jury Instructions § 2.2 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997).

(For 2006 version see below)

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During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

See Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.01 ( (2001); Ninth Circuit Criminal Jury Instructions § 2.2 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997).

For 2000 version see below

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2000 Version

1.07 BENCH CONFERENCES AND RECESSES

During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

See Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.01 (1997); Ninth Cir. Crim. Jury Instr. 2.2 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

16.2 Conduct And Duty Of The Jury During Trial

16.3 Duty Of Jury As To The Evidence

Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case -- you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side -- even if it is simply to pass the time of day -- an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. It is important for you to understand that this case must be decided by the evidence presented in the case and the instructions I give you]¹

Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not read from a dictionary or a text book or an encyclopedia or talk with a person you consider knowledgeable or go to the Internet for information about some issue in this case. In fairness, learn about this case from the evidence you receive here at the trial and apply it to the law as I give it to you..

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

1. Optional for those cases in which media coverage is expected.

See Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.07 (1998); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.01 (1998); Ninth Instr. Circuit Criminal Jury Instructions § 1.9 (2000); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 11.01 and 11.02 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988).

A similar instruction should be repeated before the first recess, and as needed before other recesses (for example, before a weekend recess). See Instruction 2.01, infra, for a form of instruction before recesses. See also Committee Comments, Instruction 2.01, infra, regarding the necessity of instructions relating to recesses.

(For 2008 version see below).

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2008 Version

Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case -- you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side -- even if it is simply to pass the time of day -- an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. It is important for you to understand that this case must be decided by the evidence presented in the case and the instructions I give you]¹

Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not read from a dictionary or a text book or an encyclopedia or talk with a person you consider knowledgeable or go to the Internet for information about some issue in this case. In fairness, learn about this case from the evidence you receive here at the trial and apply it to the law as I give it to you..

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

1. Optional for those cases in which media coverage is expected.

See Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.07 (1998); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.01 (1998); Ninth Instr.Circuit Criminal Jury Instructions § 1.9 (2000); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 11.01 and 11.02 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988).

A similar instruction should be repeated before the first recess, and as needed before other recesses (for example, before a weekend recess). See Instruction 2.01, infra, for a form of instruction before recesses. See also Committee Comments, Instruction 2.01, infra, regarding the necessity of instructions relating to recesses.

(For 2006 version see below)

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Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case -- you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side -- even if it is simply to pass the time of day -- an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. It is important for you to understand that this case must be decided by the evidence presented in the case and the instructions I give you]1

Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not read from a dictionary or a text book or an encyclopedia or talk with a person you consider knowledgeable or go to the Internet for information about some issue in this case. In fairness, learn about this case from the evidence you receive here at the trial and apply it to the law as I give it to you..

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

1. Optional for those cases in which media coverage is expected.

See Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.07 (1998); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 1.01 (1998); Ninth Instr.Circuit Criminal Jury Instructions § 1.9 (2000); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 11.01 and 11.02 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988).

A similar instruction should be repeated before the first recess, and as needed before other recesses (for example, before a weekend recess). See Instruction 2.01, infra, for a form of instruction before recesses. See also Committee Comments, Instruction 2.01, infra, regarding the necessity of instructions relating to recesses.

For 2000 version see below

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2000 Version

1.08 CONDUCT OF THE JURY

Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case -- you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side -- even if it is simply to pass the time of day -- an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.]1

Sixth, do not do any research or make any investigation about the case on your own. Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

See Ninth Cir. Crim. Jury Instr. 1.8 (1997); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 11.01 and 11.02 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988). See generally West Key # "Criminal Law" 1174(1) for cases on the conduct and deliberations of the jury.

A similar instruction should be repeated before the first recess, and as needed before other recesses (for example, before a weekend recess). See Instruction 2.01, infra, for a form of instruction before recesses. See also Committee Comments, Instruction 2.01, infra, regarding the necessity of instructions relating to recesses.

1. Optional for those cases in which media coverage is expected.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

1.09 OUTLINE OF TRIAL

FORECITE National™ Materials Related To This Instruction:

12.2.4 Charging Document: Explanation Of The Term "Information"

The trial will proceed in the following manner:

First, the Government attorney will make an opening statement. [Next the defendant's attorney may, but does not have to, make an opening statement.]¹ An opening statement is not evidence but is simply a summary of what the attorney expects the evidence to be.

The Government will then present its evidence and counsel for the defendant may cross-examine. [Following the Government's case, the defendant may, but does not have to, present evidence, testify or call other witnesses. If the defendant calls witnesses, the Government counsel may cross-examine them.]²

After presentation of evidence is completed, the attorneys will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. The court will instruct you further on the law. After that you will retire to deliberate on your verdict.

1. This sentence may be omitted if the defendant so requests.

2. These sentences may be omitted if the defendant so requests.

See Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.09 (1998); Ninth Circuit Criminal Jury Instructions § 1.12 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.01 (5th ed 2000).

(For 2008 version see below).

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2008 Version

The trial will proceed in the following manner:

First, the Government attorney will make an opening statement. [Next the defendant's attorney may, but does not have to, make an opening statement.]¹ An opening statement is not evidence but is simply a summary of what the attorney expects the evidence to be.

The Government will then present its evidence and counsel for the defendant may cross-examine. [Following the Government's case, the defendant may, but does not have to, present evidence, testify or call other witnesses. If the defendant calls witnesses, the Government counsel may cross-examine them.]²

After presentation of evidence is completed, the attorneys will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. The court will instruct you further on the law. After that you will retire to deliberate on your verdict.

1. This sentence may be omitted if the defendant so requests.

2. These sentences may be omitted if the defendant so requests.

See Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.09 (1998); Ninth Circuit Criminal Jury Instructions § 1.12 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.01 (5th ed 2000).

(For 2006 version see below)

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The trial will proceed in the following manner:

First, the Government attorney will make an opening statement. [Next the defendant's attorney may, but does not have to, make an opening statement.]1 An opening statement is not evidence but is simply a summary of what the attorney expects the evidence to be.

The Government will then present its evidence and counsel for the defendant may cross-examine. [Following the Government's case, the defendant may, but does not have to, present evidence, testify or call other witnesses. If the defendant calls witnesses, the Government counsel may cross-examine them.]2

After presentation of evidence is completed, the attorneys will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. The court will instruct you further on the law. After that you will retire to deliberate on your verdict.

1. This sentence may be omitted if the defendant so requests.

2. These sentences may be omitted if the defendant so requests.

See Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.09 (1998); Ninth Circuit Criminal Jury Instructions § 1.12 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.01 (5th ed 2000).

For 2000 version see below

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2000 Version

1.09 OUTLINE OF TRIAL

The trial will proceed in the following manner:

First, the Government attorney will make an opening statement. [Next the defendant's attorney may, but does not have to, make an opening statement.]1 An opening statement is not evidence but is simply a summary of what the attorney expects the evidence to be.

The Government will then present its evidence and counsel for defendant may cross-examine. [Following the Government's case, the defendant may, but does not have to, present evidence, testify or call other witnesses. If the defendant calls witnesses, the Government counsel may cross-examine them.]2

After presentation of evidence is completed, the attorneys will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. The court will instruct you further on the law. After that you will retire to deliberate on your verdict.

See Ninth Cir. Crim. Jury Instr. 1.11 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 10.01 (4th ed. 1992).

1. This sentence may be omitted if defendant so requests.

2. These sentences may be omitted if defendant so requests.