8TH CIRCUIT CHAPTER 2

8TH CIRCUIT MODEL INSTRUCTIONS 2009
Go to Federal Model Instructions Table of Contents - Go to 8th Circuit Table of Contents

2. Instructions for Use During Trial

        2.00     Instructions for Use During Trial (Introductory Comment)
        2.01     Duties Of Jury -- Recesses
        2.02     Stipulated Testimony
        2.03     Stipulated Facts
        2.04     Judicial Notice (FRE 201)
        2.05     Wiretap Or Other Tape-recorded Evidence
        2.06A   Transcript Of Tape-Recorded Conversation
        2.06B   Transcript of Foreign Language; Tape-recorded Conversation
        2.07     Statement By Defendant
        2.08     Defendant's Prior Similar Acts (Where Introduced To Prove An Issue Other Than Identity) (FRE 404(b))
        2.09     Defendant’s Prior Similar Acts (Where Introduced To Prove Identity) (FRE 404(b))
        2.10     Cross-Examination Of Defendant's Character Witness
        2.11     Dismissal, During Trial, Of Some Charges Against Single Defendant
        2.12     Disposition, During Trial, Of All Charges Against One Or More Codefendant's]
        2.13     Disposition, During Trial, Of One Or More But Less Than All Charges Against Codefendant[s]
        2.14     Evidence Admitted Against Only One Defendant
        2.15     Statement Of One Defendant In Multi-defendant Trial
        2.16     Defendant's Testimony - Impeachment By Prior Conviction
        2.17     Defendant's Testimony - Impeachment By Otherwise Inadmissible Statement (Harris v. New York)
        2.18     Impeachment Of Witness - Prior Conviction
        2.19     Witness Who Has Pleaded Guilty
        2.20     Defendant’s Previous Trial
        2.21     Defendant's Photographs - "Mugshots"
        2.22     Discharge Of Defense Counsel During Trial

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.00 INSTRUCTIONS FOR USE DURING TRIAL

Introductory Comment

The instructions included in this section are those the Committee felt were most likely to be given during trial, to limit or explain evidence, to advise the jury of its duties, or to cure or avoid prejudice. An instruction bearing on the jury's duties during recesses is contained in Instruction 2.01. Instructions explaining various kinds of evidence include Instructions 2.02-2.07.

Limiting instructions must be given, if requested, where evidence is admissible for one purpose, but not for another purpose, or against one defendant but not another. Rule 105 . Although it may be the better practice to give such an instruction sua sponte, this circuit has made it clear that the district court is not required to give a limiting instruction unless counsel requests one. United States v. Perkins, 94 F.3d 429, 435 (8^th Cir. 1996). Generally, when neither party requests a limiting instruction, the trial court’s failure to give a limiting instruction is reviewed for plain error. Id. A party who declines a district court’s offer to provide a limiting instruction or who makes it clear that he does not want such a limiting instruction waives the issue on appeal and cannot complain that such a failure constituted plain error. United States v. Haukass, 172 F.3d 542, 545 (8^th Cir. 1999); Arkansas State Highway Comm’n v. Arkansas River Co., 27 F.3d 753, 760 (8^th Cir. 2001) (when error invited, there can be no reversible error).

The district court has discretion in deciding whether to give limiting instructions, but when it does, it should instruct the jury as to the limited purpose for which the evidence is received. United States v. Larry Reid & Sons Partnership, 280 F.3d 1212, 1215 (8^th Cir. 2002). Limiting instructions include Instructions 2.08-2.19.

Curative instructions are used to avoid or cure possible prejudice that may arise from a variety of situations occurring during trial. United States v. Flores, 73 F.3d 826, 831 (8^th Cir. 1996). See, e.g., United States v. Waddington, 233 F.3d 1067, 1077 (8^th Cir. 2000) (reference to a co-defendant’s conviction in the same underlying case); United States v. O’Dell, 204 F.3d 1829, 1835 (8^th Cir. 2000) (improper prosecutor’s argument that the government cannot force someone to testify); United States v. Sopczak, 742 F.2d 1119, 1122 (8th Cir. 1984) (witness mentioned the defendant had changed plea from guilty to not guilty); United States v. Martin, 706 F.2d 263, 266 (8th Cir. 1983) (court's reference to the defendants as "pimps"); United States v. Singer, 660 F.2d 1295, 1304-05 (8th Cir. 1981) (prosecutor's comments during closing argument); United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978) (the codefendant's disruptive conduct at trial); United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970) (witness characterized the defendant's remark as "vulgar"). Curative instructions include Nos. 2.20-2.22.

The court has discretion to refuse a curative instruction where the effect may be to amplify the event rather than dispel prejudice. Long v. Cottrell, 265 F.3d 663, 665 (8^th Cir. 2001).

Other Instructions dealing with evidentiary matters are found in Section 4. Any of those evidentiary instructions may easily be adapted for use during trial where appropriate.

Instructions given during trial may be repeated at the conclusion of trial, if appropriate.

(For 2008 version see below).

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2008 Version

Limiting instructions must be given, if requested, where evidence is admissible for one purpose, but not for another purpose, or against one defendant but not another. Fed. R. Evid. 105. Although it may be the better practice to give such an instruction sua sponte, this circuit has made it clear that the district court is not required to give a limiting instruction unless counsel requests one. United States v. Perkins, 94 F.3d 429, 435 (8^th Cir. 1996). Generally, when neither party requests a limiting instruction, the trial court’s failure to give a limiting instruction is reviewed for plain error. Id. A party who declines a district court’s offer to provide a limiting instruction or who makes it clear that he does not want such a limiting instruction waives the issue on appeal and cannot complain that such a failure constituted plain error. United States v. Haukass, 172 F.3d 542, 545 (8^th Cir. 1999); Arkansas State Highway Comm’n v. Arkansas River Co., 27 F.3d 753, 760 (8^th Cir. 2001) (when error invited, there can be no reversible error).

Curative instructions are used to avoid or cure possible prejudice that may arise from a variety of situations occurring during trial. United States v. Flores, 73 F.3d 826, 831 (8^th Cir. 1996). See, e.g., United States v. Waddington, 233 F.3d 1067, 1077 (8^th Cir. 2000) [reference to a co-defendant’s conviction in the same underlying case]; United States v. O’Dell, 204 F.3d 1829, 1835 (8^th Cir. 2000) [improper prosecutor’s argument that the government cannot force someone to testify]; United States v. Sopczak, 742 F.2d 1119, 1122 (8th Cir. 1984) [witness mentioned the defendant had changed plea from guilty to not guilty]; United States v. Martin, 706 F.2d 263, 266 (8th Cir. 1983) [court's reference to the defendants as "pimps"]; United States v. Singer, 660 F.2d 1295, 1304-05 (8th Cir. 1981) [prosecutor's comments during closing argument]; United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978) [the codefendant's disruptive conduct at trial]; United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970) [witness characterized the defendant's remark as "vulgar"]. Curative instructions include Nos. 2.20-2.22.

The court has discretion to refuse a curative instruction where the effect may be to amplify the event rather than dispel prejudice. Long v. Cottrell, 265 F.3d 663, 665 (8^th Cir. 2001).

Other Instructions dealing with evidentiary matters are found in Section 4. Any of those evidentiary instructions may easily be adapted for use during trial where appropriate.

Instructions given during trial may be repeated at the conclusion of trial, if appropriate.

(For 2006 version see below)

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2006 Version

Limiting instructions must be given, if requested, where evidence is admissible for one purpose, but not for another purpose, or against one defendant but not another. FRE 105. Although it may be the better practice to give such an instruction sua sponte, this circuit has made it clear that the district court is not required to give a limiting instruction unless counsel requests one. United States v. Perkins, 94 F.3d 429, 435 (8th Cir. 1996). Generally, when neither party requests a limiting instruction, the trial court’s failure to give a limiting instruction is reviewed for plain error. Id. A party who declines a district court’s offer to provide a limiting instruction or who makes it clear that he does not want such a limiting instruction waives the issue on appeal and cannot complain that such a failure constituted plain error. United States v. Haukass, 172 F.3d 542, 545 (8th Cir. 1999); Arkansas State Highway Comm’n v. Arkansas River Co., 27 F.3d 753, 760 (8th Cir. 2001) (when error invited, there can be no reversible error).

The district court has discretion in deciding whether to give limiting instructions, but when it does, it should instruct the jury as to the limited purpose for which the evidence is received. United States v. Larry Reid & Sons Partnership, 280 F.3d 1212, 1215 (8th Cir. 2002). Limiting instructions include Instructions 2.08-2.19.

Curative instructions are used to avoid or cure possible prejudice that may arise from a variety of situations occurring during trial. United States v. Flores, 73 F.3d 826, 831 (8th Cir. 1996). See, e.g., United States v. Waddington, 233 F.3d 1067, 1077 (8th Cir. 2000) [reference to a co-defendant’s conviction in the same underlying case]; United States v. O’Dell, 204 F.3d 1829, 1835 (8th Cir. 2000) [improper prosecutor’s argument that the government cannot force someone to testify]; United States v. Sopczak, 742 F.2d 1119, 1122 (8th Cir. 1984) [witness mentioned the defendant had changed plea from guilty to not guilty]; United States v. Martin, 706 F.2d 263, 266 (8th Cir. 1983) [court's reference to the defendants as "pimps"]; United States v. Singer, 660 F.2d 1295, 1304-05 (8th Cir. 1981) [prosecutor's comments during closing argument]; United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978) [the codefendant's disruptive conduct at trial]; United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970) [witness characterized the defendant's remark as "vulgar"]. Curative instructions include Nos. 2.20-2.22.

The court has discretion to refuse a curative instruction where the effect may be to amplify the event rather than dispel prejudice. Long v. Cottrell, 265 F.3d 663, 665 (8th Cir. 2001).

Other Instructions dealing with evidentiary matters are found in Section 4. Any of those evidentiary instructions may easily be adapted for use during trial where appropriate.

Instructions given during trial may be repeated at the conclusion of trial, if appropriate.

For 2000 version see below

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2000 Version

2. INSTRUCTIONS FOR USE DURING TRIAL (Introductory Comment)

The district court has discretion in deciding whether to give limiting instructions, but when it does, it should instruct the jury as to the limited purpose for which the evidence is received. United States v. Robinson, 774 F.2d 261, 272 (8th Cir. 1985). Limiting instructions include Instructions 2.08-2.19.

Curative instructions are used to avoid or cure possible prejudice that may arise from a variety of situations occurring during trial. See, e.g., United States v. Sopczak, 742 F.2d 1119, 1122 (8th Cir. 1984) [witness mentioned defendant had changed plea from guilty to not guilty]; United States v. Martin, 706 F.2d 263, 266 (8th Cir. 1983) [court's reference to defendants as "pimps"]; United States v. Singer, 660 F.2d 1295, 1304-05 (8th Cir. 1981), cert. denied, 454 U.S. 1156 (1982) [prosecutor's comments during closing argument]; United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978) [codefendant's disruptive conduct at trial]; United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970), cert. denied, 402 U.S. 986 (1971) [witness characterized defendant's remark as "vulgar"]. Curative instructions include Nos. 2.20-2.22.

The court has discretion to refuse a curative instruction where the effect may be to amplify the event rather than dispel prejudice. See, e.g., United States v. Wyant, 576 F.2d 1312, 1319 (8th Cir. 1978).

Other Instructions dealing with evidentiary matters are found in Section 4. Any of those evidentiary instructions may easily be adapted for use during trial where appropriate. Other examples of instructions which may be given during trial are in 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 11.01-11.15 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions §§ 5-8 (1988); Fifth Circuit Pattern Jury Instructions: Criminal Chapter 1 (1997); Ninth Cir. Crim. Jury Instr. 2.1-2.13 (1997).

The Committee recommends that any instruction which is given during trial be repeated in the court's final instructions given at the end of trial, unless valid reasons are presented to the court for doing otherwise.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.01 DUTIES OF JURY -- RECESSES¹

FORECITE National™ Materials Related To This Instruction:

16.2.3 Duty Not To Converse With Other Persons

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

We are about to take [our first] [a] recess² and I remind you of the instruction I gave you earlier. During this recess or any other recess, you must not discuss this case with anyone, including the other jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, please let me know about it immediately. [Do not read, watch or listen to any news reports of the trial. Finally, keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

I may not repeat these things to you before every recess, but keep them in mind throughout the trial.]

Notes on Use

1. This instruction should be given before the first recess and at subsequent recesses within the discretion of the court.

2. This language should be modified for overnight or weekend recesses.

Committee Comments

See Instruction 1.08, supra.

The court has considerable discretion to separate a jury before it has reached a verdict. United States v. Dixon, 913 F.2d 1305, 1312 (8^th Cir. 1990) (distinguishing separation of jury prior to and after deliberations). However, the jury must be admonished as to their duties and responsibilities when not in court. Such an instruction may be given at the beginning of trial, before recesses and lunchtime, and most importantly before separating for the evening. Id. United States v. Williams, 635 F.2d 744, 745 (8^th Cir. 1990). Although failure to give any instruction of this nature during the course of a trial which was completed in one day has been held harmless error, Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969), it is prejudicial error to fail to give a cautionary instruction at any stage of the trial prior to separation. See United States v. Williams, 635 F.2d at 746; cf., United States v. Lashley, 251 F.3d 706, 712 (8^th Cir. 2001). The jurors mistakenly left early during deliberations. The court held it was not reversible error for the trial judge to contact the jurors by telephone and admonish them not to speak to anyone about the case, where such admonition had been given during trial. However, the failure to give a cautionary instruction prior to an overnight separation was held not reversible error, absent any other claim of prejudice where the jury had been so cautioned on at least thirteen other occasions. United States v. Weatherd, 699 F.2d 959, 962 (8th Cir. 1983). See also United States v. McGrane, 746 F.2d 632 (8th Cir. 1984), holding that the jury was adequately cautioned when they were so instructed on ten occasions.

(For 2008 version see below).

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2008 Version

We are about to take [our first] [a] recess² and I remind you of the instruction I gave you earlier. During this recess or any other recess, you must not discuss this case with anyone, including the other jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, please let me know about it immediately. [Do not read, watch or listen to any news reports of the trial. Finally, keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

I may not repeat these things to you before every recess, but keep them in mind throughout the trial.]

Notes on Use

1. This instruction should be given before the first recess and at subsequent recesses within the discretion of the court.

2. This language should be modified for overnight or weekend recesses.

Committee Comments

See Instruction 1.08, supra.

The court has considerable discretion to separate a jury before it has reached a verdict. United States v. Dixon, 913 F.2d 1305, 1312 (8^th Cir. 1990) (distinguishing separation of jury prior to and after deliberations). However, the jury must be admonished as to their duties and responsibilities when not in court. Such an instruction may be given at the beginning of trial, before recesses and lunchtime, and most importantly before separating for the evening. Id. United States v. Williams, 635 F.2d 744, 745 (8^th Cir. 1990). Although failure to give any instruction of this nature during the course of a trial which was completed in one day has been held harmless error, Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969), it is prejudicial error to fail to give a cautionary instruction at any stage of the trial prior to separation. See United States v. Williams, 635 F.2d at 746; cf., United States v. Lashley, 251 F.3d 706, 712 (8^th Cir. 2001). The jurors mistakenly left early during deliberations. The court held it was not reversible error for the trial judge to contact the jurors by telephone and admonish them not to speak to anyone about the case, where such admonition had been given during trial. However, the failure to give a cautionary instruction prior to an overnight separation was held not reversible error, absent any other claim of prejudice where the jury had been so cautioned on at least thirteen other occasions. United States v. Weatherd, 699 F.2d 959, 962 (8th Cir. 1983). See also United States v. McGrane, 746 F.2d 632 (8th Cir. 1984) holding that the jury was adequately cautioned when they were so instructed on ten occasions.

(For 2006 version see below)

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2006 Version

We are about to take [our first] [a] recess2 and I remind you of the instruction I gave you earlier. During this recess or any other recess, you must not discuss this case with anyone, including the other jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, please let me know about it immediately. [Do not read, watch or listen to any news reports of the trial. Finally, keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

I may not repeat these things to you before every recess, but keep them in mind throughout the trial.]

Notes on Use

1. This instruction should be given before the first recess and at subsequent recesses within the discretion of the court.

2. This language should be modified for overnight or weekend recesses.

Committee Comments

See Instruction 1.08, supra.

The court has considerable discretion to separate a jury before it has reached a verdict. United States v. Dixon, 913 F.2d 1305, 1312 (8th Cir. 1990) (distinguishing separation of jury prior to and after deliberations). However, the jury must be admonished as to their duties and responsibilities when not in court. Such an instruction may be given at the beginning of trial, before recesses and lunchtime, and most importantly before separating for the evening. Id. United States v. Williams, 635 F.2d 744, 745 (8th Cir. 1990). Although failure to give any instruction of this nature during the course of a trial which was completed in one day has been held harmless error, Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969), it is prejudicial error to fail to give a cautionary instruction at any stage of the trial prior to separation. See United States v. Williams, 635 F.2d at 746; cf., United States v. Lashley, 251 F.3d 706, 712 (8th Cir. 2001). The jurors mistakenly left early during deliberations. The court held it was not reversible error for the trial judge to contact the jurors by telephone and admonish them not to speak to anyone about the case, where such admonition had been given during trial. However, the failure to give a cautionary instruction prior to an overnight separation was held not reversible error, absent any other claim of prejudice where the jury had been so cautioned on at least thirteen other occasions. United States v. Weatherd, 699 F.2d 959, 962 (8th Cir. 1983). See also United States v. McGrane, 746 F.2d 632 (8th Cir. 1984) holding that the jury was adequately cautioned when they were so instructed on ten occasions.

For 2000 version see below

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2000 Version

2.01 DUTIES OF JURY: RECESSES1

We are about to take [our first] [a] recess2 and I remind you of the instruction I gave you earlier. During this recess or any other recess, you must not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, please let me know about it immediately. [Do not read, watch or listen to any news reports of the trial. Finally, keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

I may not repeat these things to you before every recess, but keep them in mind throughout the trial.]3

Committee Comments

See 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 § 5 (1988); Ninth Cir. Crim. Jury Instr. 2.1 (1997).

See also Instruction 1.08, supra.

The court has considerable discretion to separate a jury before it has reached a verdict. United States v. Williams, 635 F.2d 744, 745 (8th Cir. 1980) and cases cited therein. However, the jury must be admonished as to their duties and responsibilities when not in court. Such an instruction may be given at the beginning of trial, before recesses and lunchtime, and most importantly before separating for the evening. Id. Although failure to give any instruction of this nature during the course of a trial which was completed in one day has been held harmless error, Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969), it is prejudicial error to allow the jury to separate overnight without a cautionary instruction having been given at any stage of the trial prior to separation. Williams, 635 F.2d at 746. However, the failure to give a cautionary instruction prior to an overnight separation was held not reversible error, absent any other claim of prejudice where the jury had been so cautioned on at least thirteen other occasions. United States v. Weatherd, 699 F.2d 959, 962 (8th Cir. 1983). See also United States v. McGrane, 746 F.2d 632 (8th Cir. 1984) holding that the jury was adequately cautioned when they were so instructed on ten occasions.

See Instruction 3.12, infra, for final instructions on this topic.

Notes on Use

1. This instruction should be given before the first recess and at subsequent recesses within the discretion of the court.

2. This language should be modified for overnight or weekend recesses.

3. This language may be omitted for subsequent breaks during trial, but not for overnight or weekend recesses.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.02 STIPULATED TESTIMONY

FORECITE National™ Materials Related To This Instruction:

24.2.3 What Is Evidence: Stipulations

The Government and the defendant[s] have stipulated - that is, they have agreed - that if (name of witness) were called as a witness [he][she] would testify in the way counsel have just stated. You should accept that as being (name of witness)'s testimony, just as if it had been given here in court from the witness stand.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 1.02 (1997); Ninth Cir. Crim. Jury Instr. 2.3 (1997). See generally Federal Judicial Center, Pattern Criminal Jury Instructions § 11 (1988); West Key # "Stipulations" 14(10).

There is a difference between stipulating that a witness would give certain testimony, and stipulating that certain facts are established. United States v. Lambert, 604 F.2d 594, 595 (8th Cir. 1979). Instruction 2.03, infra, covers stipulations of facts. By entering into a stipulation as to a witness's testimony, calling that person as a witness is avoided. Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965).

Where there is stipulation as to testimony, the parties may contest the truth or accuracy of that testimony. See United States v. Garcia, 593 F.2d 77, 79 (8th Cir. 1979). In such a situation, it may be appropriate to instruct the jury on the factual areas that remain disputed. See, e.g., United States v. Renfro, 600 F.2d 55, 59 (6th Cir. 1979), for an example of such an instruction where only authenticity was stipulated.

(For 2008 version see below).

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2008 Version

The Government and the defendant[s] have stipulated - that is, they have agreed - that if (name of witness) were called as a witness [he][she] would testify in the way counsel have just stated. You should accept that as being (name of witness)'s testimony, just as if it had been given here in court from the witness stand.

Committee Comments

(For 2006 version see below)

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2006 Version

The Government and the defendant[s] have stipulated - that is, they have agreed - that if (name of witness) were called as a witness [he][she] would testify in the way counsel have just stated. You should accept that as being (name of witness)'s testimony, just as if it had been given here in court from the witness stand.

Committee Comments

For 2000 version see below

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

2000 Version

2.02 STIPULATED TESTIMONY

The Government and the defendant[s] have stipulated - that is, they have agreed - that if (name of witness) were called as a witness [he][she] would testify in the way counsel have just stated. You should accept that as being (name of witness)'s testimony, just as if it had been given here in court from the witness stand.

Committee Comments

Where there is stipulation as to testimony, the parties may contest the truth or accuracy of that testimony. See United States v. Garcia, 593 F.2d 77, 79 (8th Cir. 1979). In such a situation, it may be appropriate to instruct the jury on the factual areas that remain disputed. See, e.g., United States v. Renfro, 600 F.2d 55, 59 (6th Cir.), cert. denied, 444 U.S. 941 (1979), for an example of such an instruction where only authenticity was stipulated.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.03 STIPULATED FACTS

FORECITE National™ Materials Related To This Instruction:

24.2.3 What Is Evidence: Stipulations

The government [prosecutor] and the defendant[s] have stipulated -- that is, they have agreed -- that certain facts are as counsel have just stated. You must therefore treat those facts as having been proved.

Committee Comments

When facts are stipulated, it is not error for the court to so instruct. United States v. Sims, 529 F.2d 10, 11 (8th Cir. 1976). See, e.g., United States v. Steeves, 525 F.2d 33, 35 (8^th Cir. 1975). When the parties stipulate to an element of an offense, it is not error to instruct the jury as to that fact. "Stipulations of fact fairly entered into are controlling and conclusive and courts are bound to enforce them." Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965).

A case may be submitted on an agreed statement of facts and the defendant may raise any defenses by stipulation. Such a practice, where the essential facts in the case are uncontested, has been approved as a practical and expeditious procedure. United States v. Wray, 608 F.2d 722, 724 (8th Cir. 1979). When facts which tend to establish guilt are submitted on stipulation, the court must determine whether the consequences of the admissions are understood by the defendant and whether he consented to them. Cox v. Hutto, 589 F.2d 394, 396 (8th Cir. 1979) (stipulation to prior convictions in habitual offender action). An extensive examination before entry of a guilty plea under Rule 11 is ordinarily not required. United States v. Stalder, 696 F.2d 59, 62 (8^th Cir. 1982). However, when a stipulation is entered that leaves no fact to be tried, the court should determine that the stipulation was voluntarily and intelligently entered into, and that the defendant knew and understood the consequences of the stipulation. Id.

By agreeing to a stipulation, a defendant waives any right to argue error on appeal. United States v. Hawkins, 215 F.3d 858, 860 (8^th Cir. 2000) (citing Ohler v. United States, 529 U.S. 753, 756 (2000) (party introducing evidence cannot complain on appeal that the evidence was erroneously admitted)).

(For 2008 version see below).

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2008 Version

The government [prosecutor] and the defendant[s] have stipulated -- that is, they have agreed -- that certain facts are as counsel have just stated. You must therefore treat those facts as having been proved.

Committee Comments

(For 2006 version see below)

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2006 Version

The government [prosecutor] and the defendant[s] have stipulated -- that is, they have agreed -- that certain facts are as counsel have just stated. You must therefore treat those facts as having been proved.

Committee Comments

When facts are stipulated, it is not error for the court to so instruct. United States v. Sims, 529 F.2d 10, 11 (8th Cir. 1976). See, e.g., United States v. Steeves, 525 F.2d 33, 35 (8th Cir. 1975). When the parties stipulate to an element of an offense, it is not error to instruct the jury as to that fact. "Stipulations of fact fairly entered into are controlling and conclusive and courts are bound to enforce them." Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965).

A case may be submitted on an agreed statement of facts and the defendant may raise any defenses by stipulation. Such a practice, where the essential facts in the case are uncontested, has been approved as a practical and expeditious procedure. United States v. Wray, 608 F.2d 722, 724 (8th Cir. 1979). When facts which tend to establish guilt are submitted on stipulation, the court must determine whether the consequences of the admissions are understood by the defendant and whether he consented to them. Cox v. Hutto, 589 F.2d 394, 396 (8th Cir. 1979) (stipulation to prior convictions in habitual offender action). An extensive examination before entry of a guilty plea under Rule 11 is ordinarily not required. United States v. Stalder, 696 F.2d 59, 62 (8th Cir. 1982). However, when a stipulation is entered that leaves no fact to be tried, the court should determine that the stipulation was voluntarily and intelligently entered into, and that the defendant knew and understood the consequences of the stipulation. Id.

By agreeing to a stipulation, a defendant waives any right to argue error on appeal. United States v. Hawkins, 215 F.3d 858, 860 (8th Cir. 2000) (citing Ohler v. United States, 529 U.S. 753, 756 (2000) (party introducing evidence cannot complain on appeal that the evidence was erroneously admitted)).

For 2000 version see below

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2000 Version

2.03 STIPULATED FACTS

The Government and the defendant[s] have stipulated -- that is, they have agreed -- that certain facts are as counsel have just stated. You must therefore treat those facts as having been proved.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 2.4 (1997). See generally 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.03 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 12 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.15 (1999); West Key # "Stipulations" 14(10). See also Committee Comments, Instruction 2.02, supra.

When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Sims, 529 F.2d 10, 11 (8th Cir. 1976); United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976). "Stipulations of fact fairly entered into are controlling and conclusive and courts are bound to enforce them." Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965).

A case may be submitted on an agreed statement of facts and the defendant may raise any defenses by stipulation. Such a practice, where the essential facts in the case are uncontested, has been approved as a practical and expeditious procedure. United States v. Wray, 608 F.2d 722, 724 (8th Cir. 1979), cert. denied, 444 U.S. 1048 (1980). When facts which tend to establish guilt are submitted on stipulation, the court must determine whether the consequences of the admissions are understood by the defendant and whether he consented to them. Cox v. Hutto, 589 F.2d 394, 396 (8th Cir. 1979) [stipulation to prior convictions in habitual offender action]; United States v. Terrack, 515 F.2d 558, 560-61 (9th Cir. 1975) [whole case submitted on stipulated facts]. However, the extensive examination before entry of a guilty plea under Rule 11 is ordinarily not required. Terrack, 515 F.2d at 560-61, and cases cited therein; United States v. Miller, 588 F.2d 1256, 1263-64 (9th Cir. 1978), cert. denied, 440 U.S. 947 (1979); United States v. Schmidt, 760 F.2d 828 (7th Cir.), cert. denied, 474 U.S. 827 (1985). Guilty plea safeguards may be required, however, where and by such stipulation the defendant effectively admits guilt and waives trial on all issues. Schmidt, 760 F.2d at 834.

Where the stipulated facts do not directly establish guilt, the court need not personally address defendants as to the voluntariness of the stipulation. United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981), which held:

[W]hen a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant's acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agrees to it through his or her attorney. Unless a criminal defendant indicates objection at the time the stipulation is made, he or she is ordinarily bound by such a stipulation. [Case citations from Second, Seventh, Ninth and Tenth Circuits omitted.]

In Ferreboeuf, the stipulation was to one of the three necessary elements to establish the crime. See also Loggins v. Frey, 786 F.2d 364, 367-68 (8th Cir.), cert. denied, 479 U.S. 842 (1986), upholding a stipulation that a witness was unavailable (which allowed his prior testimony to be read into evidence), where, although defendant's attorney did not consult him about the stipulation, it appeared from the record that defendant acquiesced in it and the stipulation was motivated by sound strategic reasons.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.04 JUDICIAL NOTICE (FRE 201)

FORECITE National™ Materials Related To This Instruction:

24.2.4 What Is Evidence: Judicial Notice

Even though no evidence has been introduced about it, I have decided to accept as proved the fact that (insert fact noticed). I believe this fact [is of such common knowledge] [can be so accurately and readily determined from (name accurate source)] that it cannot reasonably be disputed. You may therefore treat this fact as proved, even though no evidence was brought out on the point. As with any fact, however, the final decision whether or not to accept it is for you to make and you are not required to agree with me.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 7 (1988); Ninth Cir. Crim. Jury Instr. 2.5 (1997); United States v. Deckard, 816 F.2d 426, 428 (8th Cir. 1987). See generally 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.03 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.02 (1999); FRE 201; West Key # "Criminal Law" 304.

The kinds of facts which may be judicially noticed are set out in FRE 201(b).

An instruction regarding judicial notice is appropriately given at the time notice is taken. In Deckard, the jury was instructed at the time notice was taken that it would be instructed at the close of the case on what to do with facts judicially noticed. That part of the final charge read as follows:

When the court declares it will take judicial notice of some fact or event, you may accept the court's declaration as evidence, and regard as proved the fact or event which has been judicially noticed, but you are not required to do so since you are the sole judge of the facts.

816 F.2d at 428.

Fed. R. Evid. 201(g) requires that the jury in a criminal case be instructed that it is not required to accept as conclusive any fact so noticed. However, failure to so instruct does not rise to the level of plain error if the defendant is not prejudiced. United States v. Berrojo, 628 F.2d 368, 370 (5th Cir. 1980); United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980).

Courts "may take judicial notice of either legislative or adjudicative facts, [but] only notice of the latter is subject to the strictures of Rule 201. Although Rule 201 is frequently (albeit erroneously) cited in cases that involve judicial notice of legislative facts, see II [Kenneth C.] Davis & [Richard J.] Pierce, Jr., Administrative Law Treatise § 10.6 at 155 (3d ed. 1994), [courts] recognize the importance of this distinction and its clear basis in Rule 201(a) and the advisory note thereon." United States v. Hernandez-Fundora, 58 F.3d 802, 812 (2d Cir. 1995). While the federal rule provides, in part, that "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed," the rule extends only to adjudicative, not legislative facts. United States v. Gould, 536 F.2d 216 (8th Cir. 1976); United States v. Bowers, 660 F.2d 527 (5th Cir. 1981) (per curiam). "No rule deals with judicial notice of 'legislative' facts.'" United States v. Hernandez-Fundora, 58 F.3d at 811.

Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case. If the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury. United States v. Gould, 536 F.2d at 220 (instruction to jury that it could disregard the judicially noticed fact that cocaine hydrochloride was a schedule II controlled substance would have been inappropriate); United States v. Hernandez-Fundora, 58 F.3d at 810 (resolution of territorial jurisdiction issue required the determination of legislative facts with the result that Rule 201(g) inapplicable); United States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) ("public official" for purposes of bribery statute is a question of law for the court); United States v. Anderson, 782 F.2d 908, 917 (11th Cir. 1986) (fact that violation of Georgia arson statute is a felony for RICO purposes is a legislative fact that can be judicially noticed but not instructed on).

(For 2008 version see below).

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2008 Version

Even though no evidence has been introduced about it, I have decided to accept as proved the fact that (insert fact noticed). I believe this fact [is of such common knowledge] [can be so accurately and readily determined from (name accurate source)] that it cannot reasonably be disputed. You may therefore treat this fact as proved, even though no evidence was brought out on the point. As with any fact, however, the final decision whether or not to accept it is for you to make and you are not required to agree with me.

Committee Comments

The kinds of facts which may be judicially noticed are set out in FRE 201(b).

When the court declares it will take judicial notice of some fact or event, you may accept the court's declaration as evidence, and regard as proved the fact or event which has been judicially noticed, but you are not required to do so since you are the sole judge of the facts.

816 F.2d at 428.

Fed. R. Evid. 201(g), requires that the jury in a criminal case be instructed that it is not required to accept as conclusive any fact so noticed. However, failure to so instruct does not rise to the level of plain error if the defendant is not prejudiced. United States v. Berrojo, 628 F.2d 368, 370 (5th Cir. 1980); United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980).

(For 2006 version see below)

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2006 Version

Even though no evidence has been introduced about it, I have decided to accept as proved the fact that (insert fact noticed). I believe this fact [is of such common knowledge] [can be so accurately and readily determined from (name accurate source)] that it cannot reasonably be disputed. You may therefore treat this fact as proved, even though no evidence was brought out on the point. As with any fact, however, the final decision whether or not to accept it is for you to make and you are not required to agree with me.

Committee Comments

The kinds of facts which may be judicially noticed are set out in FRE 201(b).

When the court declares it will take judicial notice of some fact or event, you may accept the court's declaration as evidence, and regard as proved the fact or event which has been judicially noticed, but you are not required to do so since you are the sole judge of the facts.

816 F.2d at 428.

FRE 201(g), requires that the jury in a criminal case be instructed that it is not required to accept as conclusive any fact so noticed. However, failure to so instruct does not rise to the level of plain error if the defendant is not prejudiced. United States v. Berrojo, 628 F.2d 368, 370 (5th Cir. 1980); United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980).

For 2000 version see below

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2000 Version

2.04 JUDICIAL NOTICE (Fed. R. Evid. 201)

Even though no evidence has been introduced about it, I have decided to accept as proved the fact that (insert fact noticed). I believe this fact [is of such common knowledge] [can be so accurately and readily determined from (name accurate source)] that it cannot reasonably be disputed. You may therefore treat this fact as proved, even though no evidence was brought out on the point. As with any fact, however, the final decision whether or not to accept it is for you to make and you are not required to agree with me.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 7 (1988); Ninth Cir. Crim. Jury Instr. 2.5 (1997); United States v. Deckard, 816 F.2d 426, 428 (8th Cir. 1987). See generally 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.03 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 1.02 (1999); Fed. R. Evid. 201; West Key # "Criminal Law" 304.

The kinds of facts which may be judicially noticed are set out in Fed. R. Evid. 201(b).

When the court declares it will take judicial notice of some fact or event, you may accept the court's declaration as evidence, and regard as proved the fact or event which has been judicially noticed, but you are not required to do so since you are the sole judge of the facts.

816 F.2d at 428.

Fed. R. Evid. 201(g), requires that the jury in a criminal case be instructed that it is not required to accept as conclusive any fact so noticed. However, failure to so instruct does not rise to the level of plain error if defendant is not prejudiced. United States v. Berrojo, 628 F.2d 368, 370 (5th Cir. 1980); United States v. Piggie, 622 F.2d 486, 488 (10th Cir.), cert. denied, 449 U.S. 863 (1980).

Courts "may take judicial notice of either legislative or adjudicative facts, [but] only notice of the latter is subject to the strictures of Rule 201. Although Rule 201 is frequently (albeit erroneously) cited in cases that involve judicial notice of legislative facts, see II [Kenneth C.] Davis & [Richard J.] Pierce, Jr., Administrative Law Treatise § 10.6 at 155 (3d ed. 1994), [courts] recognize the importance of this distinction and its clear basis in Rule 201(a) and the advisory note thereon." United States v. Hernandez- Fundora, 58 F.3d 802, 812 (2d Cir.), cert. denied, 515 U.S. 1127 (1995). While the federal rule provides, in part, that "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed," the rule extends only to adjudicative, not legislative facts. United States v. Gould, 536 F.2d 216 (8th Cir. 1976); United States v. Bowers, 660 F.2d 527 (5th Cir. 1981) (per curiam). "No rule deals with judicial notice of 'legislative' facts.'" United States v. Hernandez-Fundora, 58 F.3d 802, 811 (2d Cir.), cert. denied, 515 U.S. 1127 (1995).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.05 WIRETAP OR OTHER TAPE-RECORDED EVIDENCE

[You are about to hear [have heard] tape recordings of conversations. These conversations were legally recorded, and you may consider the recordings just like any other evidence.]

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 13 (1988); Ninth Cir. Crim. Jury Instr. 2.8 (1997). See generally 18 USC 2510-2520.

The Committee recommends that this instruction be given only if a question as to the propriety of the recording has been raised in the jury's presence.

Note that when a transcript of a tape is offered and the tape is available, the tape, rather than the transcript, controls. See FRE 1002. United States v. Martinez, 951 F.2d 887, 889 (8^th Cir. 1991). The trial court did not err in permitting the jury to listen to a tape, which was arguably unintelligible, and follow along with the transcript, when the court instructed the jury that only the tape and not the transcript was to be considered when weighing the evidence. This is covered in Instruction 2.06A, infra. In situations where a transcript is utilized together with the recording, Instruction 2.06A should be given immediately after this instruction.

In United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), the Court set forth the foundation requirements for use of tape recordings as evidence. The McMillan foundation requirements are directed to the government's use of recording equipment, but not to a recording found in a defendant's possession. United States v. O'Connell, 841 F.2d 1408 (8th Cir. 1988); United States v. Kandiel, 865 F.2d 967 (8th Cir. 1989). If the requirements are satisfied, a tape may be admitted even if it is poor quality as long as the quality of the recording does not call into question the trustworthiness of the tape. United States v. Munoz, 324 F.3d 987, 992 (8^th Cir. 2003); cf. United States v. Le, 272 F.3d 530, 532 (8^th Cir. 2001). It is within the trial court’s discretion to exclude a tape when its quality renders it untrustworthy.

(For 2008 version see below).

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2008 Version

[You are about to hear [have heard] tape recordings of conversations. These conversations were legally recorded, and you may consider the recordings just like any other evidence.]

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 13 (1988); Ninth Cir. Crim. Jury Instr. 2.8 (1997). See generally 18 USC 2510-2520.

The Committee recommends that this instruction be given only if a question as to the propriety of the recording has been raised in the jury's presence.

Note that when a transcript of a tape is offered and the tape is available, the tape, rather than the transcript, controls. See FRE 1002. United States v. Martinez, 951 F.2d 887, 889 (8^th Cir. 1991). The trial court did not err in permitting the jury to listen to a tape, which was arguably unintelligible, and follow along with the transcript, when the court instructed the jury that only the tape and not the transcript was to be considered when weighing the evidence. This is covered in Instruction 2.06, infra. In situations where a transcript is utilized together with the recording, Instruction 2.06 should be given immediately after this instruction.

In United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), the Court set forth the foundation requirements for use of tape recordings as evidence. The McMillan foundation requirements are directed to the government's use of recording equipment, but not to a recording found in a defendant's possession. United States v. O'Connell, 841 F.2d 1408 (8th Cir. 1988); United States v. Kandiel, 865 F.2d 967 (8th Cir. 1989). If the requirements are satisfied, a tape may be admitted even if it is poor quality as long as the quality of the recording does not call into question the trustworthiness of the tape. United States v. Munoz, 324 F.3d 987, 992 (8^th Cir. 2003); Cf., United States v. Le, 272 F.3d 530, 532 (8^th Cir. 2001). It is within the trial court’s discretion to exclude a tape when its quality renders it untrustworthy.

(For 2006 version see below)

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2006 Version

[You are about to hear [have heard] tape recordings of conversations. These conversations were legally recorded, and you may consider the recordings just like any other evidence.]

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 13 (1988); Ninth Cir. Crim. Jury Instr. 2.8 (1997). See generally 18 USC 2510-2520.

The Committee recommends that this instruction be given only if a question as to the propriety of the recording has been raised in the jury's presence.

Note that when a transcript of a tape is offered and the tape is available, the tape, rather than the transcript, controls. See FRE 1002. United States v. Martinez, 951 F.2d 887, 889 (8th Cir. 1991). The trial court did not err in permitting the jury to listen to a tape, which was arguably unintelligible, and follow along with the transcript, when the court instructed the jury that only the tape and not the transcript was to be considered when weighing the evidence. This is covered in Instruction 2.06, infra. In situations where a transcript is utilized together with the recording, Instruction 2.06 should be given immediately after this instruction.

In United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), the Court set forth the foundation requirements for use of tape recordings as evidence. The McMillan foundation requirements are directed to the government's use of recording equipment, but not to a recording found in a defendant's possession. United States v. O'Connell, 841 F.2d 1408 (8th Cir. 1988); United States v. Kandiel, 865 F.2d 967 (8th Cir. 1989). If the requirements are satisfied, a tape may be admitted even if it is poor quality as long as the quality of the recording does not call into question the trustworthiness of the tape. United States v. Munoz, 324 F.3d 987, 992 (8th Cir. 2003); Cf., United States v. Le, 272 F.3d 530, 532 (8th Cir. 2001). It is within the trial court’s discretion to exclude a tape when its quality renders it untrustworthy.

For 2000 version see below

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2000 Version

2.05 WIRETAP OR OTHER TAPE-RECORDED EVIDENCE

[You are about to hear [have heard] tape recordings of conversations. These conversations were legally recorded, and you may consider the recordings just like any other evidence.]

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 13 (1988); Ninth Cir. Crim. Jury Instr. 2.8 (1997). See generally 18 USC§ 2510-2520.

The Committee recommends that this instruction be given only if a question as to the propriety of the recording has been raised in the jury's presence.

Note that when a transcript of a tape is offered and the tape is available, the tape, rather than the transcript, controls. See Fed. R. Evid. 1002. This is covered in Instruction 2.06, infra. In situations where a transcript is utilized together with the recording, Instruction 2.06 should be given immediately after this instruction.

In United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975), the Court set forth the foundation requirements for use of tape recordings as evidence. The McMillan foundation requirements are directed to the government's use of recording equipment, but not to a recording found in a defendant's possession. United States v. O'Connell, 841 F.2d 1408 (8th Cir.), cert. denied, 487 U.S. 1210 (1988); United States v. Kandiel, 865 F.2d 967 (8th Cir. 1989).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.06A TRANSCRIPT OF TAPE-RECORDED CONVERSATION

FORECITE National™ Materials Related To This Instruction:

25.9 Electronic Recordings

As you have [also] heard, there is a typewritten transcript of the tape recording [I just mentioned] [you are about to hear]. That transcript also undertakes to identify the speakers engaged in the conversation.

You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you keep track of the speakers. Differences in meaning between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker's voice. It is what you hear, however, and not what you read, that is the evidence.

[You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.]¹

Notes on Use

1. This paragraph should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8^th Cir. 2004), the court said: "[W]e believe that whenever the parties intend to introduce a transcript at trial, they should first try ‘to produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all sides,’ United States v. Cruz, 765 F.2d 1020, 1023 (11^th Cir. 1985) (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5^th Cir. 1978)). If they are unable to do so, ‘then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version.’ Id. (quoting Wilson, 578 F.2d at 69-70)." In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.

Committee Comments

See generally United States v. McMillan, 508 F.2d 101 (8th Cir. 1974) (specifies the procedures for use of transcripts at trial). United States v. Calderin-Rodriquez, 244 F.3d 979, 987 (8^th Cir. 2001), held that transcripts which provide voice identification and date headings were properly admitted.

A jury may use transcripts of taped conversations during trial and jury deliberations. United States v. Delpit, 94 F.3d 1134, 1147-48 (8^th Cir. 1996); United States v. Foster, 815 F.2d 1200, 1203 (8^th Cir. 1987), where the court held it was not error for the trial court to permit the transcripts to be sent to the jury during deliberations when the transcripts were admitted into evidence without objection, and the jury was instructed that the tape is controlling. If the accuracy of the transcript has been stipulated, the transcript may be admitted into evidence without limiting instructions. See United States v. Crane, 632 F.2d 663, 664 (6th Cir. 1980).

The trial court has broad discretion in the use of transcripts. See, e.g., United States v. Grajales-Montoya, 117 F.3d 356, 367 (8^th Cir. 1997). The court held that the trial court did not abuse its discretion by admitting transcripts of certain translations of tape-recorded conversations in Spanish. In United States v. Delpit, 94 F.3d 1134, 1147 (8^th Cir. 1996), the court held it was not error for the trial court to allow the jury to use the transcripts of wire-tapped conversations during trial and deliberations which included the government’s interpretation and translation, in brackets, of pig-Latin codes used in tapes.

(For 2008 version see below).

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2008 Version

2.06 TRANSCRIPT OF TAPE-RECORDED CONVERSATION

As you have [also] heard, there is a typewritten transcript of the tape recording [I just mentioned] [you are about to hear]. That transcript also undertakes to identify the speakers engaged in the conversation.

You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you keep track of the speakers. Differences in meaning between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker's voice. It is what you hear, however, and not what you read, that is the evidence.

[You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.]¹

Notes on Use

Committee Comments

The trial court has broad discretion in the use of transcripts. See e.g., United States v. Grajales-Montoya, 117 F.3d 356, 367 (8^th Cir. 1997). The court held that the trial court did not abuse its discretion by admitting transcripts of certain translations of tape recorded conversations in Spanish. In United States v. Delpit, 94 F.3d 1134, 1147 (8^th Cir. 1996), the court held it was not error for the trial court to allow the jury to use the transcripts of wire-tapped conversations during trial and deliberations which included the government’s interpretation and translation, in brackets, of pig-Latin codes used in tapes.

(For 2006 version see below)

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2006 Version

As you have [also] heard, there is a typewritten transcript of the tape recording [I just mentioned] [you are about to hear]. That transcript also undertakes to identify the speakers engaged in the conversation.

You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you keep track of the speakers. Differences in meaning between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker's voice. It is what you hear, however, and not what you read, that is the evidence.

[You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.]1

Notes on Use

1. This paragraph should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8th Cir. 2004), the court said: "[W]e believe that whenever the parties intend to introduce a transcript at trial, they should first try ‘to produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all sides,’ United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985) (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). If they are unable to do so, ‘then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version.’ Id. (quoting Wilson, 578 F.2d at 69-70)." In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.

Committee Comments

See generally United States v. McMillan, 508 F.2d 101 (8th Cir. 1974) (specifies the procedures for use of transcripts at trial). United States v. Calderin-Rodriquez, 244 F.3d 979, 987 (8th Cir. 2001), held that transcripts which provide voice identification and date headings were properly admitted.

A jury may use transcripts of taped conversations during trial and jury deliberations. United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir. 1996); United States v. Foster, 815 F.2d 1200, 1203 (8th Cir. 1987), where the court held it was not error for the trial court to permit the transcripts to be sent to the jury during deliberations when the transcripts were admitted into evidence without objection, and the jury was instructed that the tape is controlling. If the accuracy of the transcript has been stipulated, the transcript may be admitted into evidence without limiting instructions. See United States v. Crane, 632 F.2d 663, 664 (6th Cir. 1980).

The trial court has broad discretion in the use of transcripts. See e.g., United States v. Grajales-Montoya, 117 F.3d 356, 367 (8th Cir. 1997). The court held that the trial court did not abuse its discretion by admitting transcripts of certain translations of tape recorded conversations in Spanish. In United States v. Delpit, 94 F.3d 1134, 1147 (8th Cir. 1996), the court held it was not error for the trial court to allow the jury to use the transcripts of wire-tapped conversations during trial and deliberations which included the government’s interpretation and translation, in brackets, of pig-Latin codes used in tapes.

For 2000 version see below

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

2000 Version

2.06 TRANSCRIPT OF TAPE-RECORDED CONVERSATION

As you have [also] heard, there is a typewritten transcript of the tape recording [I just mentioned] [you are about to hear]. That transcript also undertakes to identify the speakers engaged in the conversation.

You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you keep track of the speakers. The transcript, however, is not evidence. The tape recording itself is the primary evidence of its own contents. [You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.]1

Differences in meaning between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker's voice. You should, therefore, rely on what you hear rather than what you read when there is a difference.

Committee Comments

See generally United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975); United States v. Bentley, 706 F.2d 1498 (8th Cir. 1983), cert. denied, 467 U.S. 1209 (1984).

The transcript, absent stipulation of the parties, should not go to the jury room. See United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976), cert. denied, 430 U.S. 906 (1977), 433 U.S. 907 (1977). If the accuracy of the transcript has been stipulated, the transcript may be admitted into evidence without limiting instructions. See United States v. Crane, 632 F.2d 663, 664 (6th Cir. 1980).

Notes on Use

1. This language should be included if the accuracy of the transcript is an issue.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.06B TRANSCRIPT OF FOREIGN LANGUAGE;
TAPE-RECORDED CONVERSATION ¹

Among the exhibits admitted during the trial were recordings that contained conversations in the _______ language. You were also provided English transcripts of those conversations. The transcripts were provided to you [by the government] so that you can consider the content of the conversations on the recordings. Whether a transcript is an accurate translation, in whole or in part, is for you to decide. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.²

[In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.]³

Notes on Use

1. This instruction should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8^th Cir. 2004), the court encouraged the parties to produce an official or stipulated transcript, which satisfies all sides. If they are unable to do so, "then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version." (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5^th Cir. 1978)). In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.

2. Jurors should be instructed to rely only on the English translation, not on their own knowledge of the foreign language. United States v. Gonzalez, 365 F.3d 656, 661-62 (8^th Cir. 2004). The court cited with approval the Seventh Circuit Federal Criminal Jury Instruction § 3.18, and encouraged district courts to "use an instruction similar to it when introducing an English transcript of dialogue that originally was spoken in another language." Id. at 662.

3. This language may be included if desired. United States v. Gonzalez, 365 F.3d 656 (8^th Cir. 2004).

(For 2008 version see below).

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2008 Version

2.06A TRANSCRIPT OF FOREIGN LANGUAGE
TAPE-RECORDED CONVERSATION ¹

Among the exhibits admitted during the trial were recordings that contained conversations in the _______ language. You were also provided English transcripts of those conversations. The transcripts were provided to you [by the government] so that you can consider the content of the conversations on the recordings. Whether a transcript is an accurate translation, in whole or in part, is for you to decide. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.²

[In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.]³

Notes on Use

1. This instruction should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8^th Cir. 2004), the court encouraged the parties to produce an official or stipulated transcript, which satisfies all sides.If they are unable to do so, "then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version." (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5^th Cir. 1978)). In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.

2. Jurors should be instructed to rely only on the English translation, not on their own knowledge of the foreign language. United States v. Gonzalez, 365 F.3d 656, 661-62 (8^th Cir. 2004). The court cited with approval the Seventh Circuit Federal Criminal Jury Instruction § 3.18, and encouraged district courts to "use an instruction similar to it when introducing an English transcript of dialogue that originally was spoken in another language." Id. at 662.

3. This language may be included if desired. United States v. Gonzalez, 365 F.3d 656 (8^th Cir. 2004).

(For 2006 version see below)

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

2006 Version

Among the exhibits admitted during the trial were recordings that contained conversations in the _______ language. You were also provided English transcripts of those conversations. The transcripts were provided to you [by the government] so that you can consider the content of the conversations on the recordings. Whether a transcript is an accurate translation, in whole or in part, is for you to decide. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.2

[In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.]3

Notes on Use

1. This instruction should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8th Cir. 2004), the court encouraged the parties to produce an official or stipulated transcript, which satisfies all sides.If they are unable to do so, "then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version." (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.

2. Jurors should be instructed to rely only on the English translation, not on their own knowledge of the foreign language. United States v. Gonzalez, 365 F.3d 656, 661-62 (8th Cir. 2004). The court cited with approval the Seventh Circuit Federal Criminal Jury Instruction § 3.18, and encouraged district courts to "use an instruction similar to it when introducing an English transcript of dialogue that originally was spoken in another language." Id. at 662.

3. This language may be included if desired. United States v. Gonzalez, 365 F.3d 656 (8th Cir. 2004).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.07 STATEMENT BY THE DEFENDANT

FORECITE National™ Materials Related To This Instruction:

Chapter 28 Out Of Court Statements By Defendant

You have heard testimony that [the defendant] [defendant (name)] made a statement to (name of person or agency). It is for you to decide:

First, whether [the defendant] [defendant (name)] made the statement and

Second, if so, how much weight you should give to it. ¹

[In making these two decisions you should consider all of the evidence, including the circumstances under which the statement may have been made.] ²

Notes on Use

1. In a multi-defendant trial, this instruction should be followed by Instruction 2.15, infra, unless the statement was made during the course of a conspiracy or was otherwise adoptive.

2. Use this sentence, if appropriate.

Committee Comments

See generally 18 USC 3501 and United States v. Dickerson, 530 U.S. 428 (2000).

The instruction uses the word "statement" in preference to the word "confession." Not all statements are "confessions," particularly from a lay person's point of view.

Pursuant to 18 USC 3501(a), the trial judge must first make a determination as to the voluntariness of the statement (including compliance with applicable Miranda requirements), outside the presence of the jury. This may, of course, be done either pretrial or out of the jury's presence during trial. If done during trial, no reference to the statement should be made in the jury's presence unless and until the trial judge has made a determination that the statement is admissible. If such a determination is made, the trial judge should then permit the jury to hear evidence on the issue of voluntariness and give the present instruction. The jury should not be advised that the trial judge has made an independent determination that the statement was voluntary. United States v. Standing Soldier, 538 F.2d 196, 203 (8th Cir. 1976); United States v. Bear Killer, 534 F.2d 1253, 1258-59 (8th Cir. 1976). The Committee concludes that it is not necessary to instruct the jury with respect to the various specific factors enumerated in 18 USC 3501(b).

The defendant may introduce evidence of the circumstances in which the statement is made. Crane v. Kentucky, 476 U.S. 683 (1986); United States v. Blue Horse, 856 F.2d 1037, 1039 n.3 (8th Cir. 1988).

If the voluntariness of the statement is not an issue, the defendant is not entitled to this instruction. United States v. Blue Horse, 856 F.2d at 1039.

Even though the defendant's failure to request an instruction such as this one may be a waiver of any error in the matter, see United States v. Houle, 620 F.2d 164, 166 (8th Cir. 1980), the Committee strongly recommends that if voluntariness is an issue, the instruction be given even absent a request.

"Informal" voluntary statements - that is, in the language of 18 USC 3501(d), those made "without interrogation by anyone, or at any time at which the person . . . was not under arrest or other detention" - do not require any instruction. See United States v. Houle, 620 F.2d at 166.

(For 2008 version see below).

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

2008 Version

You have heard testimony that [the defendant] [defendant (name)] made a statement to (name of person or agency). It is for you to decide:

First, whether [the defendant] [defendant (name)] made the statement and

Second, if so, how much weight you should give to it. ¹

[In making these two decisions you should consider all of the evidence, including the circumstances under which the statement may have been made.] ²

Notes on Use

1. In a multi defendant trial this instruction should be followed by Instruction 2.15, infra, unless the statement was made during the course of a conspiracy or was otherwise adoptive.

2. Use this sentence, if appropriate.

Committee Comments

See generally 18 USC 3501 and United States v. Dickerson, 530 U.S. 428 (2000).

The instruction uses the word "statement" in preference to the word "confession." Not all statements are "confessions," particularly from a lay person's point of view.

Pursuant to 18 USC 3501(a), the trial judge must first make a determination as to the voluntariness of the statement (including compliance with applicable Miranda requirements), outside the presence of the jury. This may, of course, be done either pre-trial or out of the jury's presence during trial. If done during trial, no reference to the statement should be made in the jury's presence unless and until the trial judge has made a determination that the statement is admissible. If such a determination is made, the trial judge should then permit the jury to hear evidence on the issue of voluntariness and give the present instruction. The jury should not be advised that the trial judge has made an independent determination that the statement was voluntary. United States v. Standing Soldier, 538 F.2d 196, 203 (8th Cir. 1976); United States v. Bear Killer, 534 F.2d 1253, 1258-59 (8th Cir. 1976). The Committee concludes that it is not necessary to instruct the jury with respect to the various specific factors enumerated in 18 USC 3501(b).

If the voluntariness of the statement is not an issue, the defendant is not entitled to this instruction. United States v. Blue Horse, 856 F.2d at 1039.

(For 2006 version see below)

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

2006 Version

You have heard testimony that [the defendant] [defendant (name)] made a statement to (name of person or agency). It is for you to decide:

First, whether [the defendant] [defendant (name)] made the statement and

Second, if so, how much weight you should give to it. 1

[In making these two decisions you should consider all of the evidence, including the circumstances under which the statement may have been made.] 2

Notes on Use

1. In a multi defendant trial this instruction should be followed by Instruction 2.15, infra, unless the statement was made during the course of a conspiracy or was otherwise adoptive.

2. Use this sentence, if appropriate.

Committee Comments

See generally 18 USC 3501 and United States v. Dickerson, 530 U.S. 428 (2000).

The instruction uses the word "statement" in preference to the word "confession." Not all statements are "confessions," particularly from a lay person's point of view.

Pursuant to 18 USC 3501(a), the trial judge must first make a determination as to the voluntariness of the statement (including compliance with applicable Miranda requirements), outside the presence of the jury. This may, of course, be done either pre-trial or out of the jury's presence during trial. If done during trial, no reference to the statement should be made in the jury's presence unless and until the trial judge has made a determination that the statement is admissible. If such a determination is made, the trial judge should then permit the jury to hear evidence on the issue of voluntariness and give the present instruction. The jury should not be advised that the trial judge has made an independent determination that the statement was voluntary. United States v. Standing Soldier, 538 F.2d 196, 203 (8th Cir. 1976); United States v. Bear Killer, 534 F.2d 1253, 1258-59 (8th Cir. 1976). The Committee concludes that it is not necessary to instruct the jury with respect to the various specific factors enumerated in 18 USC 3501(b).

If the voluntariness of the statement is not an issue, the defendant is not entitled to this instruction. United States v. Blue Horse, 856 F.2d at 1039.

For 2000 version see below

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

2000 Version

2.07 STATEMENT BY DEFENDANT

You have heard testimony that the defendant (name) made a statement to (name of person or agency). It is for you to decide:

First, whether the defendant (name) made the statement and

Second, if so, how much weight you should give to it.

In making these two decisions you should consider all of the evidence, including the circumstances under which the statement may have been made.1

Committee Comments

See Ninth Cir. Crim. Jury Instr. 4.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 2.1 (1997). See also 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 14.03 and 14.04 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 36 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.26 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.02 (1999). See generally 18 USC 3501; West Key # "Criminal Law" 405, 406 (1-3, 5-7), 409, 411, 412(1-6), 412.1(1-4), 412.2(1-5), 414, 781(1-6), 814(16), 815(8), 823(11).

The instruction uses the word "statement" in preference to the word "confession." Not all statements are "confessions," particularly from a lay person's point of view.

Pursuant to 18 USC 3501(a), the trial judge must first make a determination as to the voluntariness of the statement (including compliance with applicable Miranda requirements), outside the presence of the jury. This may, of course, be done either pre-trial or out of the jury's presence during trial. If done during trial, no reference to the statement should be made in the jury's presence unless and until the trial judge has made a determination that the statement is admissible. If such a determination is made, the trial judge should then permit the jury to hear evidence on the issue of voluntariness and give the present instruction. The jury should not be advised that the trial judge has made an independent determination that the statement was voluntary. United States v. Standing Soldier, 538 F.2d 196, 203 (8th Cir.), cert. denied, 429 U.S. 1025 (1976); United States v. Bear Killer, 534 F.2d 1253, 1258-59 (8th Cir.), cert. denied, 429 U.S. 846 (1976). The Committee concludes that it is not necessary to instruct the jury with respect to the various specific factors enumerated in 18 USC 3501(b).

If the voluntariness of the statement is not an issue, the defendant is not entitled to this instruction. United States v. Blue Horse, 856 F.2d at 1039.

Even though the defendant's failure to request an instruction such as this one may be a waiver of any error in the matter, see United States v. Houle, 620 F.2d 164, 166 (8th Cir. 1980), the Committee strongly recommends that if voluntariness is an issue, the instruction be given even absent a request.

Notes on Use

1. In a multi defendant trial this instruction should be followed by Instruction 2.15, infra, unless the statement was made during the course of a conspiracy or was otherwise adoptive.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.08 THE DEFENDANT'S PRIOR SIMILAR ACTS
(Where Introduced to Prove an Issue Other Than Identity)
(FRE 404(b))

FORECITE National™ Materials Related To This Instruction:

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear or has heard). You may consider this evidence only if you (unanimously) find it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt. If you find that this evidence is more likely true than not true, you may consider it to help you decide (describe purpose under 404(b) for which evidence has been admitted.)¹ You should give it the weight and value you believe it is entitled to receive. If you find that it is not more likely true than not true, then you shall disregard it.²

Remember, even if you find that the defendant may have committed [a] similar [act] [acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)³

Notes on Use

1. Use care in framing the language to be used in specifying the purpose for which the evidence can be used. See United States v. Mothershed, 859 F.2d 585, 588-89 (8th Cir. 1988) (court should specify which component of Rule 404(b) the prior similar act evidence is relevant to and explain the relationship between the prior acts and proof of that proper component).

2. See generally, 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions: Criminal, §5.10 (2000); United States v. Frazier, 280 F.3d 835, 846 (8^th Cir. 2002).

3. This paragraph should be given only upon request of the defendant. This portion of the instruction explains that prior similar act evidence is not admissible to prove propensity to commit crime, and the defendant may want the jury so instructed. On the other hand, this portion of the instruction repeats reference to the prior act[s]. The trade-off between explanation and repetition should be made by the defendant in the first instance.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 2.10 (1997). See also 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.08 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 50 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.30 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.04 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 4 (1997). See generally FRE 404(b); West Key # "Criminal Law" 369-374, 673(5), 761(14), 783(1). See also United States v. Felix, 867 F.2d 1068, 1075 (8th Cir. 1989) (court satisfied that earlier, but nearly identical, version of this instruction was correct as given).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Supreme Court, in Huddleston v. United States, 485 U.S. 681, 691 (1988), acknowledged the unfair prejudice that can arise from the admission of similar act evidence and noted that such prejudice could be dealt with, in part, through a limiting instruction. Such an instruction should be given when requested.

Prior act evidence is admissible when it is relevant to a material issue in question other than the character of the defendant, the act is similar in kind and reasonably close in time to the crime charged, there is sufficient evidence to support a finding by the jury that the defendant committed the prior act and the potential unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Anderson, 879 F.2d 369, 378 (8th Cir. 1989); United States v. Marin-Cifuentes, 866 F.2d 988, 996 (8th Cir. 1989). This circuit follows a rule of inclusion, wherein such evidence is admissible unless it tends to prove only the defendant's criminal disposition. E.g., United States v. Kandiel, 865 F.2d 967, 972 (8th Cir. 1989); United States v. Mothershed, 859 F.2d 585, 589 (8th Cir. 1988).

While other act evidence is generally admissible to prove intent, knowledge, motive, etc., it is only admissible where such an issue is material in the case. Mothershed, 859 F.2d at 589-90; United States v. Nichols, 808 F.2d 660, 663 (8th Cir. 1987). In United States v. Carroll, 207 F.3d 465, 467 (8^th Cir. 2000), the Court stated, "[i]n some circumstances, a defendant’s prior bad acts are part of a broader plan or scheme relevant to the charged offense. . . . Evidence of past acts may also be admitted . . . as direct proof of a charged crime that includes a plan or scheme element. . . . In other circumstances . . . the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature. . . . In these cases, the evidence goes to identity. . . . These ‘plan’ and ‘identity’ uses of Rule 404(b) evidence are distinct from each other . . . . (Emphasis added.) See also United States v. LeCompte, 99 F.3d 274 (8^th Cir. 1996). Where admission of other act evidence is sought, "the proponent of the evidence [must] articulate the basis for the relevancy of the prior act evidence and . . . the court [must] 'specify which components of the rule form the basis of its ruling and why.' United States v. Harvey, 845 F.2d 760, 762 (8th Cir. 1988) (emphasis added)." United States v. Johnson, 879 F.2d 331, 334 n.2 (8th Cir. 1989). Other act evidence is admissible during the Government’s case-in-chief where the defendant plans to present a general denial defense, because the defendant, by pleading not guilty, puts the Government to its proof on all elements of the charged crime. United States v. Miller, 974 F.2d 953, 960 (8th Cir. 1992); United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995). See also Untied States v. Carroll, 207 F.3d 465 (8^th Cir. 2000). For a discussion of the stringent test which the defendant must meet to remove a state-of-mind issue, see United States v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995), and United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir. 1993) (Rule 404(b) evidence inadmissible to show intent during rebuttal when the defendant denied committing the criminal act).

This instruction is designed for use only in those situations where the prior acts are to be utilized for one or more purposes covered by Rule 404(b), 'such as proof of motive, opportunity, intent, preparation, plan, knowledge, . . . or absence of mistake or accident . . .' but not for proof of identity or in sexual assault or child molestation cases.

This instruction should not be used when the theory for admitting the evidence is to show identity. When the evidence is to be used for this purpose, use Instruction 2.09, infra. This instruction is also not appropriate when evidence of similar crimes is introduced in sexual assault and child molestation cases. Those cases are covered by Rules 413 and 414, Fed. R. Evid., which allow evidence of similar crimes to show the defendant’s propensity to commit such crimes as evidence that he or she did commit the crime for which the defendant is on trial. It is the opinion of the Committee that, in an appropriate case, evidence otherwise admissible under Rules 413 and 414 may be excluded under Rule 403 if the danger of unfair prejudice or confusion of the issues substantially outweighs the probative value of the evidence.

If the defendant's prior conviction has been admitted under Rule 609, a different limiting instruction should be given. See Instruction 2.16, infra; 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.08 (5th ed. 2000).

(For 2008 version see below).

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

2008 Version

You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear or has heard). You may consider this evidence only if you (unanimously) find it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt. If you find that this evidence is more likely true than not true, you may consider it to help you decide (describe purpose under 404(b) for which evidence has been admitted.)¹ You should give it the weight and value you believe it is entitled to receive. If you find that it is not more likely true than not true, then you shall disregard it.²

Remember, even if you find that the defendant may have committed [a] similar [act] [acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)³

Notes on Use

2. See generally, 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions: Criminal, §5.10 (2000); United States v. Frazier, 280 F.3d 835, 846 (8^th Cir. 2002).

Committee Comments

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Supreme Court, in Huddleston v. United States, 485 U.S. 681, 691 (1988), acknowledged the unfair prejudice that can arise from the admission of similar act evidence and noted that such prejudice could be dealt with in part through a limiting instruction. Such an instruction should be given when requested.

While other act evidence is generally admissible to prove intent, knowledge, motive, etc., it is only admissible where such an issue is material in the case. Mothershed, 859 F.2d at 589-90; United States v. Nichols, 808 F.2d 660, 663 (8th Cir. 1987). In United States v. Carroll, 207 F.3d 465, 467 (8^th Cir. 2000), the Court stated, "[i]n some circumstances, a defendant’s prior bad acts are part of a broader plan or scheme relevant to the charged offense. . . . Evidence of past acts may also be admitted . . . as direct proof of a charged crime that includes a plan or scheme element. . . . In other circumstances . . . the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature. . . . In these cases, the evidence goes to identity. . . . These ‘plan’ and ‘identity’ uses of Rule 404(b) evidence are distinct from each other . . . . (Emphasis added.) See also United States v. LeCompte, 99 F.3d 274 (8^th Cir. 1996). Where admission of other act evidence is sought, "the proponent of the evidence [must] articulate the basis for the relevancy of the prior act evidence and . . . the court [must] 'specify which components of the rule form the basis of its ruling and why.' United States v. Harvey, 845 F.2d 760, 762 (8th Cir. 1988) (emphasis added)." United States v. Johnson, 879 F.2d 331, 334 n.2 (8th Cir. 1989). Other act evidence is admissible during the Government’s case-in-chief where the defendant plans to present a general denial defense, because the defendant, by pleading not guilty, puts the Government to its proof on all elements of the charged crime. United States v. Miller, 974 F.2d 953, 960 (8th Cir. 1992); United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995). See also Untied States v. Carroll, 207 F.3d 465 (8^th Cir. 2000). For a discussion of the stringent test which the defendant must meet to remove a state-of-mind issue, see United States v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995) and United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir. 1993) (Rule 404(b) evidence inadmissible to show intent during rebuttal when the defendant denied committing the criminal act).

(For 2006 version see below)

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

2006 Version

You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear or has heard). You may consider this evidence only if you (unanimously) find it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt. If you find that this evidence is more likely true than not true, you may consider it to help you decide (describe purpose under 404(b) for which evidence has been admitted.)1 You should give it the weight and value you believe it is entitled to receive. If you find that it is not more likely true than not true, then you shall disregard it.2

Remember, even if you find that the defendant may have committed [a] similar [act] [acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)3

Notes on Use

2. See generally, 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions: Criminal, §5.10 (2000); United States v. Frazier, 280 F.3d 835, 846 (8th Cir. 2002).

Committee Comments

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Supreme Court, in Huddleston v. United States, 485 U.S. 681, 691 (1988), acknowledged the unfair prejudice that can arise from the admission of similar act evidence and noted that such prejudice could be dealt with in part through a limiting instruction. Such an instruction should be given when requested.

While other act evidence is generally admissible to prove intent, knowledge, motive, etc., it is only admissible where such an issue is material in the case. Mothershed, 859 F.2d at 589-90; United States v. Nichols, 808 F.2d 660, 663 (8th Cir. 1987). In United States v. Carroll, 207 F.3d 465, 467 (8th Cir. 2000), the Court stated, "[i]n some circumstances, a defendant’s prior bad acts are part of a broader plan or scheme relevant to the charged offense. . . . Evidence of past acts may also be admitted . . . as direct proof of a charged crime that includes a plan or scheme element. . . . In other circumstances . . . the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature. . . . In these cases, the evidence goes to identity. . . . These ‘plan’ and ‘identity’ uses of Rule 404(b) evidence are distinct from each other . . . . (Emphasis added.) See also United States v. LeCompte, 99 F.3d 274 (8th Cir. 1996). Where admission of other act evidence is sought, "the proponent of the evidence [must] articulate the basis for the relevancy of the prior act evidence and . . . the court [must] 'specify which components of the rule form the basis of its ruling and why.' United States v. Harvey, 845 F.2d 760, 762 (8th Cir. 1988) (emphasis added)." United States v. Johnson, 879 F.2d 331, 334 n.2 (8th Cir. 1989). Other act evidence is admissible during the Government’s case-in-chief where the defendant plans to present a general denial defense, because the defendant, by pleading not guilty, puts the Government to its proof on all elements of the charged crime. United States v. Miller, 974 F.2d 953, 960 (8th Cir. 1992); United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995). See also Untied States v. Carroll, 207 F.3d 465 (8th Cir. 2000). For a discussion of the stringent test which the defendant must meet to remove a state-of-mind issue, see United States v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995) and United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir. 1993) (Rule 404(b) evidence inadmissible to show intent during rebuttal when the defendant denied committing the criminal act).

For 2000 version see below

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2000 Version

2.08 DEFENDANT'S PRIOR SIMILAR ACTS
(Where Introduced to Prove an Issue Other Than Identity) (Fed. R. Evid. 404(b))

You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear). You may not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in the indictment. However, if you are convinced beyond a reasonable doubt, based on other evidence introduced, that the defendant did carry out the acts involved in the crime charged in the indictment, then you may use this evidence to decide (describe purpose under 404(b) for which evidence has been admitted.)1

[Remember, even if you find that the defendant may have committed [a] similar [act] [acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)]2

Committee Comments

See Ninth Cir. Crim. Jury Instr. 2.10 (1997). See also 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 17.08 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 50 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.30 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.04 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 4 (1997). See generally Fed. R. Evid. 404(b); West Key # "Criminal Law" 369-374, 673(5), 761(14), 783(1). See also United States v. Felix, 867 F.2d 1068, 1075 (8th Cir. 1989) (court satisfied that earlier, but nearly identical, version of this instruction was correct as given).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Supreme Court, in Huddleston v. United States, 485 U.S. 681, 691 (1988), acknowledged the unfair prejudice that can arise from the admission of similar act evidence and noted that such prejudice could be dealt with in part through a limiting instruction. Such an instruction should be given when requested.

While other act evidence is generally admissible to prove intent, knowledge, motive, etc., it is only admissible where such an issue is material in the case. Mothershed, 859 F.2d at 589-90; United States v. Nichols, 808 F.2d 660, 663 (8th Cir.), cert. denied, 481 U.S. 1038 (1987). Where admission of other act evidence is sought, "the proponent of the evidence [must] articulate the basis for the relevancy of the prior act evidence and . . . the court [must] 'specify which components of the rule form the basis of its ruling and why.' United States v. Harvey, 845 F.2d 760, 762 (8th Cir. 1988) (emphasis added)." United States v. Johnson, 879 F.2d 331, 334 n.2 (8th Cir. 1989). Other act evidence is admissible during the Government’s case-in-chief where the defendant plans to present a general denial defense, because the defendant, by pleading not guilty, puts the Government to its proof on all elements of the charged crime. United States v. Miller, 974 F.2d 953, 960 (8th Cir. 1992); United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995). For a discussion of the stringent test which the defendant must meet to remove a state-of-mind issue, see United States v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995) and United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir. 1993) (Rule 404(b) evidence inadmissible to show intent during rebuttal when the defendant denied committing the criminal act).

If the defendant's prior conviction has been admitted under Rule 609, a different limiting instruction should be given. See Instruction 2.16, infra; 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.08 (4th ed. 1992).

Notes on Use

1. Use care in framing the language to be used in specifying the purpose for which the evidence can be used. See United States v. Mothershed, 859 F.2d 585, 588-89 (8th Cir. 1988) (court should specify which component of Rule 404(b) the prior similar act evidence is relevant to and explain the relationship between the prior acts and proof of that proper component).

2. This paragraph should be given only upon request of the defendant. This portion of the instruction explains that prior similar act evidence is not admissible to prove propensity to commit crime, and defendant may want the jury so instructed. On the other hand, this portion of the instruction repeats reference to the prior act[s]. The trade-off between explanation and repetition should be made by the defendant in the first instance.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.09 THE DEFENDANT'S PRIOR SIMILAR ACTS
(Where Introduced to Prove Identity)
(FRE 404(b))

FORECITE National™ Materials Related To This Instruction:

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those] charged in this case. You may use this evidence to help you decide [manner in which the evidence will be used to prove identity - e.g., whether the similarity between the acts previously committed and the one[s] charged in this case suggests that the same person committed all of them].¹ [If you find that the evidence of other acts is not proven by the greater weight of the evidence, then you shall disregard such evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt.] ²

The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he] [she] may have committed some act[s], even bad act[s], in the past.³

Notes on Use

1. The language here should specify whether the evidence is to be considered to show a common pattern, scheme or plan or for another permissible purpose relating to proof of the acts charged.

2. See Notes on Use 2 and 3 to Instruction 2.08.

3. See Notes on Use 2 and 3 to Instruction 2.08.

Committee Comments

See S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS § 2.14A (1985); Sand, et al., Modern Federal Jury Instructions, 5-26 (1994); see generally FRE 404(b); West Key # "Criminal Law" 369.15, 372.

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Evidence of prior crimes or acts may be admissible in some cases to prove the crime charged. See, e.g., United States v. Calvert, 523 F.2d 895, 905-07 (8th Cir. 1975); United States v. Robbins, 613 F.2d 688, 692-95 (8th Cir. 1979). For example, such evidence is admissible to prove identity when the theory for admitting the evidence is to show a common scheme, pattern or plan between the prior acts and the present offense. United States v. McMillian, 535 F.2d 1035, 1038 (8th Cir. 1976); United States v. Davis, 551 F.2d 233, 234 (8th Cir. 1977); United States v. Weaver, 565 F.2d 129, 133-35 (8th Cir. 1977); United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987). Such evidence is admissible where there is a "peculiar similarity" between the prior acts and the crime charged. United States v. Garbett, 867 F.2d 1132, 1135 (8th Cir. 1989). This instruction is not appropriate when evidence of similar crimes is introduced in sexual assault and child molestation cases covered by FRE 413 and 414.

Because similar act evidence tends not only to prove the commission of the act but also has a tendency to show the defendant's bad or criminal character, undue prejudice must be avoided. This instruction, which in effect tells the jury to consider the evidence only on the issue of identity and not on the issue of character, should be given on request. See United States v. Danzey, 594 F.2d 905, 914-15 (2d Cir. 1979); see also United States v. McMillian, 535 F.2d at 1038-39.

Where similar act evidence may be admissible both on the issue of identity and for another proper purpose, Instruction 2.08, supra, and this Instruction 2.09 may need to be adapted to meet the particular situation.

(For 2008 version see below).

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2008 Version

You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those] charged in this case. You may use this evidence to help you decide [manner in which the evidence will be used to prove identity - e.g., whether the similarity between the acts previously committed and the one[s] charged in this case suggests that the same person committed all of them].¹ [If you find that the evidence of other acts is not proven by the greater weight of the evidence, then you shall disregard such evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt.] ²

The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he] [she] may have committed some act[s], even bad act[s], in the past.³

Notes on Use

1. The language here should specify whether the evidence is to be considered to show a common pattern, scheme or plan or for another permissible purpose relating to proof of the acts charged.

2. See Notes on Use 2 and 3 to Instruction 2.08.

3. See Notes on Use 2 and 3 to Instruction 2.08.

Committee Comments

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

(For 2006 version see below)

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2006 Version

You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those] charged in this case. You may use this evidence to help you decide [manner in which the evidence will be used to prove identity - e.g., whether the similarity between the acts previously committed and the one[s] charged in this case suggests that the same person committed all of them].1 [If you find that the evidence of other acts is not proven by the greater weight of the evidence, then you shall disregard such evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt.] 2

The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he] [she] may have committed some act[s], even bad act[s], in the past.3

Notes on Use

1. The language here should specify whether the evidence is to be considered to show a common pattern, scheme or plan or for another permissible purpose relating to proof of the acts charged.

2. See Notes on Use 2 and 3 to Instruction 2.08

3. See Notes on Use 2 and 3 to Instruction 2.08.

Committee Comments

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

For 2000 version see below

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2000 Version

2.09 DEFENDANT'S PRIOR SIMILAR ACTS
(Where Introduced to Prove Identity) (Fed. R. Evid. 404(b))

You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those] charged in this case. You may use this evidence to help you decide [manner in which the evidence will be used to prove identity - e.g., whether the similarity between the acts previously committed and the one[s] charged in this case suggests that the same person committed all of them].1

Remember, however, that the mere fact that the defendant may have committed [a similar act] [similar acts] in the past is not evidence that [he] [she] committed such [an act] [acts] in this case. The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he] [she] may have committed some act[s], even bad act[s], in the past.

Committee Comments

See S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS § 2.14A (1985); see generally Fed. R. Evid. 404(b); West Key # "Criminal Law" 369.15, 372.

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Evidence of prior crimes or acts may be admissible in some cases to prove the crime charged. See, e.g., United States v. Calvert, 523 F.2d 895, 905-07 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976); United States v. Robbins, 613 F.2d 688, 692-95 (8th Cir. 1979). For example, such evidence is admissible to prove identity when the theory for admitting the evidence is to show a common scheme, pattern or plan between the prior acts and the present offense. United States v. McMillian, 535 F.2d 1035, 1038 (8th Cir. 1976), cert. denied, 434 U.S. 1074 (1978); United States v. Davis, 551 F.2d 233, 234 (8th Cir.), cert. denied, 431 U.S. 923 (1977); United States v. Weaver, 565 F.2d 129, 133-35 (8th Cir. 1977), cert. denied, 434 U.S. 1074 (1978); United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987). Such evidence is admissible where there is a "peculiar similarity" between the prior acts and the crime charged. United States v. Garbett, 867 F.2d 1132, 1135 (8th Cir. 1989).

Because similar act evidence tends not only to prove the commission of the act but also has a tendency to show defendant's bad or criminal character, undue prejudice must be avoided. This instruction, which in effect tells the jury to consider the evidence only on the issue of identity and not on the issue of character, should be given on request. See United States v. Danzey, 594 F.2d 905, 914-15 (2d Cir.), cert. denied, 441 U.S. 951 (1979); see also United States v. McMillian, 535 F.2d at 1038-39.

Notes on Use

1. The language here should specify whether the evidence is to be considered to show a common pattern, scheme or plan or for another permissible purpose relating to proof of the acts charged.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.10 CROSS-EXAMINATION OF THE DEFENDANT'S CHARACTER WITNESS

FORECITE National™ Materials Related To This Instruction:

251.4.3 Good Character Defense: Strategic Concerns

You will recall that after witness (name) testified about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by testimony), the prosecutor asked the witness some questions about whether [he] [she] knew that (describe in brief terms the subject of the cross-examination on the character trait, e.g., the defendant was convicted of fraud on an earlier occasion). Those questions were asked only to help you decide if the witness really knew about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by the testimony). The information developed by the prosecutor on that subject may not be used by you for any other purpose.

That the defendant [committed] [may have committed] (e.g., committed fraud on an earlier occasion) is not evidence that [he] [she] committed the crime charged in this case.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

For a good treatment of this topic, see Michelson v. United States, 335 U.S. 469 (1948); United States v. Monteleone, 77 F.3d 1086, 1089-90 (8^th Cir. 1996).

Although character testimony is usually limited to the reputation of the defendant, the government may challenge a defendant’s character witness by cross-examining the witness about the witness’ knowledge of "relevant specific instances" of a defendant’s conduct. United States v. Monteleone, 77 F.3d at 1089-90. This type of cross-examination is discouraged, however, because it is fraught with danger and could form the basis for a miscarriage of justice. United States v. Knapp, 815 F.2d 1183, 1186 (8^th Cir. 1989). The government may only use this type of cross-examination if two requirements are met: (1) a good faith factual basis for the incidents, which must be of a type likely to be a matter of general knowledge in the community; and (2) the incidents must be relevant to the character trait at issue. United States v. Monteleone, 77 F.3d at 1089-90. With respect to community reputation for a character trait, only reputation reasonably contemporaneous with the acts charged is relevant. Mullins v. United States, 487 F.2d 581, 590 (8th Cir. 1973). Cross-examination must be limited to the particular character trait placed in issue. Michelson v. United States, 335 U.S. at 475-76. Cf. United States v. Smith, 32 F.3d 1291, 1295 (8^th Cir. 1994), in which the court held it was harmless error to permit cross-examination of the defendant’s character witness on the defendant’s prior marijuana conviction when the jury was instructed that the government’s questions and the witness’ responses were only to be used to challenge the character witness’ knowledge of the defendant’s reputation.

(For 2008 version see below).

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2008 Version

You will recall that after witness (name) testified about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by testimony), the prosecutor asked the witness some questions about whether [he] [she] knew that (Describe in brief terms the subject of the cross-examination on the character trait, e.g., the defendant was convicted of fraud on an earlier occasion). Those questions were asked only to help you decide if the witness really knew about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by the testimony). The information developed by the prosecutor on that subject may not be used by you for any other purpose.

That the defendant [committed] [may have committed] (e.g., committed fraud on an earlier occasion) is not evidence that [he] [she] committed the crime charged in this case.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

For a good treatment of this topic, see Michelson v. United States, 335 U.S. 469 (1948); United States v. Monteleone, 77 F.3d 1086, 1089-90 (8^th Cir. 1996).

Although character testimony is usually limited to the reputation of the defendant, the government may challenge a defendant’s character witness by cross-examining the witness about the witness’ knowledge of "relevant specific instances" of a defendant’s conduct. United States v. Monteleone, 77 F.3d at 1089-90. This type of cross-examination is discouraged, however, because it is fraught with danger and could form the basis for a miscarriage of justice. United States v. Knapp, 815 F.2d 1183, 1186 (8^th Cir. 1989). The government may only use this type of cross-examination if two requirements are met: (1) a good faith factual basis for the incidents, which must be of a type likely to be a matter of general knowledge in the community; and (2) the incidents must be relevant to the character trait at issue. United States v. Monteleone, 77 F.3d at 1089-90. With respect to community reputation for a character trait, only reputation reasonably contemporaneous with the acts charged is relevant. Mullins v. United States, 487 F.2d 581, 590 (8th Cir. 1973). Cross-examination must be limited to the particular character trait placed in issue. Michelson v. United States, 335 U.S. at 475-76. Cf., United States v. Smith, 32 F.3d 1291, 1295 (8^th Cir. 1994), in which the court held it was harmless error to permit cross-examination of the defendant’s character witness on the defendant’s prior marijuana conviction when the jury was instructed that the government’s questions and the witness’ responses were only to be used to challenge the character witness’ knowledge of the defendant’s reputation

(For 2006 version see below)

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2006 Version

You will recall that after witness (name) testified about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by testimony), the prosecutor asked the witness some questions about whether [he] [she] knew that (Describe in brief terms the subject of the cross-examination on the character trait, e.g., the defendant was convicted of fraud on an earlier occasion). Those questions were asked only to help you decide if the witness really knew about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by the testimony). The information developed by the prosecutor on that subject may not be used by you for any other purpose.

That the defendant [committed] [may have committed] (e.g., committed fraud on an earlier occasion) is not evidence that [he] [she] committed the crime charged in this case.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

For a good treatment of this topic, see Michelson v. United States, 335 U.S. 469 (1948); United States v. Monteleone, 77 F.3d 1086, 1089-90 (8th Cir. 1996).

Although character testimony is usually limited to the reputation of the defendant, the government may challenge a defendant’s character witness by cross-examining the witness about the witness’ knowledge of "relevant specific instances" of a defendant’s conduct. United States v. Monteleone, 77 F.3d at 1089-90. This type of cross-examination is discouraged, however, because it is fraught with danger and could form the basis for a miscarriage of justice. United States v. Knapp, 815 F.2d 1183, 1186 (8th Cir. 1989). The government may only use this type of cross-examination if two requirements are met: (1) a good faith factual basis for the incidents, which must be of a type likely to be a matter of general knowledge in the community; and (2) the incidents must be relevant to the character trait at issue. United States v. Monteleone, 77 F.3d at 1089-90. With respect to community reputation for a character trait, only reputation reasonably contemporaneous with the acts charged is relevant. Mullins v. United States, 487 F.2d 581, 590 (8th Cir. 1973). Cross-examination must be limited to the particular character trait placed in issue. Michelson v. United States, 335 U.S. at 475-76. Cf., United States v. Smith, 32 F.3d 1291, 1295 (8th Cir. 1994), in which the court held it was harmless error to permit cross-examination of the defendant’s character witness on the defendant’s prior marijuana conviction when the jury was instructed that the government’s questions and the witness’ responses were only to be used to challenge the character witness’ knowledge of the defendant’s reputation.

For 2000 version see below

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2000 Version

2.10 CROSS-EXAMINATION OF DEFENDANT'S CHARACTER WITNESS

You will recall that after witness (name) testified about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by testimony), the government attorney asked the witness some questions about whether [he] [she] knew that (Describe in brief terms the subject of the cross-examination on the character trait, e.g., defendant was convicted of fraud on an earlier occasion). Those questions were asked only to help you decide if the witness really knew about the defendant's [reputation for] [character for] [reputation and character for] (insert character trait covered by the testimony). The information developed by the government attorney on that subject may not be used by you for any other purpose.

The possibility that the defendant may have (e.g., committed fraud on an earlier occasion) is not evidence that [he] [she] committed the crime charged in this case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 52 (1988); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 11.15 (4th ed. 1992). See generally Fed. R. Evid. 405(a); West Key # "Criminal Law" 673(2), "Witnesses" 274(l).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

For a good treatment of this topic, see Michelson v. United States, 335 U.S. 469 (1948).

Character testimony is limited to the reputation of a defendant, not to specific instances of behavior. United States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983) (citing Michelson, 335 U.S. at 477). With respect to community reputation for a character trait, only reputation reasonably contemporaneous with the acts charged is relevant. United States v. Curtis, 644 F.2d 263, 268 (3d Cir. 1981), cert. denied, 459 U.S. 1018 (1982); Mullins v. United States, 487 F.2d 581, 590 (8th Cir. 1973). Cross-examination must be limited to the particular character trait placed in issue. Michelson, 335 U.S. at 475-76; United States v. Curtis, 644 F.2d at 268.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.11 DISMISSAL, DURING TRIAL, OF SOME CHARGES
AGAINST SINGLE DEFENDANT

FORECITE National™ Materials Related To This Instruction:

16.17 Partial Dismissal Of Charges During Trial

At the beginning of the trial I told you that the defendant was accused of (insert number) different crimes: (Briefly describe the offenses mentioned at the commencement of trial.)¹ Since the trial started, however, [one] [two, etc.] of these charges [has] [have] been disposed of, the one(s) having to do with (describe offenses disposed of).² [That charge] [Those charges] [is] [are] no longer before you, and the only crime[s] that the defendant is charged with now [is] [are] (describe remaining offenses). You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, the count[s] which remain, which are (list remaining count[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (Describe stricken evidence).]³

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. In some cases, circumstances may require a more specific treatment of the reasons for dismissal.

3. If the evidence remains admissible, the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8^th Cir. 1998) (citing with approval 8^th Cir. Model Crim. Jury Instruction 2.11).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Such an instruction is appropriate only on rare occasions and should not be given unless requested by the defendant.

(For 2008 version see below).

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

2008 Version

At the beginning of the trial I told you that the defendant was accused of (insert number) different crimes: (Briefly describe the offenses mentioned at the commencement of trial.)¹ Since the trial started, however, [one] [two, etc.] of these charges [has] [have] been disposed of, the one(s) having to do with (describe offenses disposed of).² [That charge] [Those charges] [is] [are] no longer before you, and the only crime[s] that the defendant is charged with now [is] [are] (describe remaining offenses). You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, the count[s] which remain, which are (list remaining count[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (Describe stricken evidence).]³

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. In some cases circumstances may require a more specific treatment of the reasons for dismissal.

3. If the evidence remains admissible the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8^th Cir. 1998) (citing with approval 8^th Cir. Model Crim. Jury Instruction 2.11).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Such an instruction is appropriate only on rare occasions and should not be given unless requested by the defendant.

(For 2006 version see below)

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

2006 Version

At the beginning of the trial I told you that the defendant was accused of (insert number) different crimes: (Briefly describe the offenses mentioned at the commencement of trial.)1 Since the trial started, however, [one] [two, etc.] of these charges [has] [have] been disposed of, the one(s) having to do with (describe offenses disposed of).2 [That charge] [Those charges] [is] [are] no longer before you, and the only crime[s] that the defendant is charged with now [is] [are] (describe remaining offenses). You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, the count[s] which remain, which are (list remaining count[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (Describe stricken evidence).]3

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. In some cases circumstances may require a more specific treatment of the reasons for dismissal.

3. If the evidence remains admissible the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8th Cir. 1998) (citing with approval 8th Cir. Model Crim. Jury Instruction 2.11).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Such an instruction is appropriate only on rare occasions and should not be given unless requested by the defendant.

For 2000 version see below

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

2000 Version

2.11 DISMISSAL, DURING TRIAL, OF SOME CHARGES AGAINST SINGLE DEFENDANT

At the beginning of the trial I told you that the defendant was accused of (insert number) different crimes: (Briefly describe the offenses mentioned at the commencement of trial.)1 Since the trial started, however, [one] [two, etc.] of these charges [has] [have] been disposed of, the one(s) having to do with (describe offenses disposed of).2 [That charge] [Those charges] [is] [are] no longer before you, and the only crime[s] that the defendant is charged with now [is] [are] (describe remaining offenses). You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the Government has proved, beyond a reasonable doubt, the count[s] which remain, which are (list remaining count[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (Describe stricken evidence).]3

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 16 (1988); Ninth Cir. Crim. Jury Instr. 2.12 (1997); United States v. Beran, 546 F.2d 1316, 1319-20 (8th Cir. 1976), cert. denied, 430 U.S. 916 (1977). See generally West Key # "Criminal Law" 750, 867, 1166.22(2).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Such an instruction is appropriate only on rare occasions and should not be given unless requested by defendant.

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. In some cases circumstances may require a more specific treatment of the reasons for dismissal.

3. If the evidence remains admissible the jury may be so instructed. See United States v. D'Alora, 585 F.2d 16 (1st Cir. 1978) which approved the following instruction:

For reasons which need not concern the jury, Count II has been withdrawn from your consideration. However, the evidence you heard relating to that count may be considered by you in your deliberations on the remaining counts.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.12 DISPOSITION, DURING TRIAL, OF ALL CHARGES
AGAINST ONE OR MORE CODEFENDANT[S]

FORECITE National™ Materials Related To This Instruction:

19.4 Disposition Of Charges As To Codefendant

At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you (describe stricken evidence).]¹

Notes on Use

1. If the evidence remains admissible, the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8^th Cir. 1998).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Eighth Circuit has held that the trial court properly instructed a jury that the absence of the codefendants, who pled guilty after opening statements during trial, should have no bearing upon the case of the remaining defendant. Therefore, a mistrial was not warranted due to the pleas of the codefendants. United States v. Daniele, 886 F.2d 1046, 1055 (8^th Cir. 1989).

If a guilty plea of a codefendant is brought into trial, either directly or indirectly, a trial court must ensure that it is not being offered as substantive evidence of a defendant’s guilt. One factor in determining whether admission of such evidence is an abuse of a trial court’s discretion is whether a limiting instruction is given. United States v. Jones, 145 F.3d 959, 963 (8^th Cir. 1998). However, if the introduction of the evidence is invited by counsel or if defense counsel requests no limiting instruction, failure to give a limiting instruction may not constitute plain error. Id.; United States v. Francisco, 410 F.2d 1283, 1288-89 (8th Cir. 1969).

(For 2008 version see below).

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2008 Version

At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you (describe stricken evidence).]¹

Notes on Use

1. If the evidence remains admissible the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8^th Cir. 1998).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Eighth Circuit has held that the trial court properly instructed a jury that the absence of the codefendants, who pled guilty after opening statements during trial, should have no bearing upon the case of the remaining defendant. Therefore a mistrial was not warranted due to the pleas of the codefendants. United States v. Daniele, 886 F.2d 1046, 1055 (8^th Cir. 1989).

(For 2006 version see below)

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2006 Version

At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you (describe stricken evidence).]1

Notes on Use

1. If the evidence remains admissible the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8th Cir. 1998).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The Eighth Circuit has held that the trial court properly instructed a jury that the absence of the codefendants, who pled guilty after opening statements during trial, should have no bearing upon the case of the remaining defendant. Therefore a mistrial was not warranted due to the pleas of the codefendants. United States v. Daniele, 886 F.2d 1046, 1055 (8th Cir. 1989).

If a guilty plea of a codefendant is brought into trial, either directly or indirectly, a trial court must ensure that it is not being offered as substantive evidence of a defendant’s guilt. One factor in determining whether admission of such evidence is an abuse of a trial court’s discretion is whether a limiting instruction is given. United States v. Jones, 145 F.3d 959, 963 (8th Cir. 1998). However, if the introduction of the evidence is invited by counsel or if defense counsel requests no limiting instruction, failure to give a limiting instruction may not constitute plain error. Id.; United States v. Francisco, 410 F.2d 1283, 1288-89 (8th Cir. 1969).

For 2000 version see below

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2000 Version

2.12 DISPOSITION, DURING TRIAL, OF ALL CHARGES AGAINST ONE OR MORE CODEFENDANT[S]

At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the Government has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you (describe stricken evidence).]1

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 12.16 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 17 (1988); Ninth Cir. Crim. Jury Instr. § 2.13 (1997); United States v. Schmaltz, 562 F.2d 558 (8th Cir.), cert. denied, 434 U.S. 957 (1977). See generally West Key # "Criminal Law" 768(l), 793.

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Courts have split on the question of whether the jury should be told the reason for the codefendant's departure or told not to concern themselves with it. See discussion in United States v. Barrientos, 758 F.2d 1152, 1155-58 (7th Cir. 1985), cert. denied, 474 U.S. 1062 (1986). This instruction follows the holding of the Seventh Circuit in that case. However, see Wood v. United States, 279 F.2d 359, 362-63 (8th Cir. 1960) in which the court approved the trial court's advising the jury that certain co-defendants had pleaded guilty.

If the jury should become aware that a codefendant has pleaded guilty, it should be clearly instructed that it is not to consider or discuss the plea in deciding the case of the remaining defendant or defendants. Wood, Id.; United States v. Phillips, 640 F.2d 87, 91 n. 7 (7th Cir.), cert. denied, 451 U.S. 991 (1981). However, the defense may elect to forego an instruction if it desires to avoid calling attention to the plea. United States v. Francisco, 410 F.2d 1283, 1288-89 (8th Cir. 1969).

Notes on Use

1. If the evidence remains admissible the jury may be so instructed. See United States v. D'Alora, 585 F.2d 16 (1st Cir. 1978).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.13 DISPOSITION, DURING TRIAL, OF ONE OR MORE BUT LESS
THAN ALL CHARGES AGAINST THE CODEFENDANT[S]

FORECITE National™ Materials Related To This Instruction:

19.4 Disposition Of Charges As To Codefendant

At the beginning of the trial I told you that [both] [all] defendants were charged, among other things, with the crimes of (describe crimes).¹ The charges of (describe disposed of charges), as against the defendant[s], [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] defendant[s] as to [that] [those] charge[s]. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved beyond a reasonable doubt that defendant[s] (name remaining defendant[s]) committed any of the crimes with which [he] [she] [they] [is] [are] charged, or when deciding if the [government] [prosecutor] has proved beyond a reasonable doubt that defendant[s] (name remaining defendants) committed the remaining crime[s] with which [he] [she] [they] [is] [are] charged.

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (describe stricken evidence).]²

[So far as this case is concerned, you will continue to be concerned with the following charges: (describe charges).]³

Notes on Use

1. If one or more counts of the same offense has been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. If the evidence remains admissible, the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8^th Cir. 1998).

3. Optional for use when there are a number of charges, and the court feels it would be helpful to "re-cap" those remaining for the jury.

Committee Comments

See Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra.

(For 2008 version see below).

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2008 Version

At the beginning of the trial I told you that [both] [all] defendants were charged, among other things, with the crimes of (describe crimes).¹ The charges of (describe disposed of charges), as against the defendant[s], [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] defendant[s] as to [that] [those] charge[s]. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved beyond a reasonable doubt that defendant[s] (name remaining defendant[s]) committed any of the crimes with which [he] [she] [they] [is] [are] charged, or when deciding if the [government] [prosecutor] has proved beyond a reasonable doubt that defendant[s] (name remaining defendants) committed the remaining crime[s] with which [he] [she] [they] [is] [are] charged.

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (describe stricken evidence).]²

[So far as this case is concerned, you will continue to be concerned with the following charges: (describe charges).]³

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. If the evidence remains admissible the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8^th Cir. 1998).

3. Optional for use when there are a number of charges, and the court feels it would be helpful to "re-cap" those remaining for the jury.

Committee Comments

See Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra.

(For 2006 version see below)

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2006 Version

At the beginning of the trial I told you that [both] [all] defendants were charged, among other things, with the crimes of (describe crimes).1 The charges of (describe disposed of charges), as against the defendant[s], [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] defendant[s] as to [that] [those] charge[s]. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the [government] [prosecutor] has proved beyond a reasonable doubt that defendant[s] (name remaining defendant[s]) committed any of the crimes with which [he] [she] [they] [is] [are] charged, or when deciding if the [government] [prosecutor] has proved beyond a reasonable doubt that defendant[s] (name remaining defendants) committed the remaining crime[s] with which [he] [she] [they] [is] [are] charged.

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (describe stricken evidence).]2

[So far as this case is concerned, you will continue to be concerned with the following charges: (describe charges).]3

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. If the evidence remains admissible the jury may be so instructed. See United States v. Kelley, 152 F.3d 886, 888 (8th Cir. 1998).

3. Optional for use when there are a number of charges, and the court feels it would be helpful to "re-cap" those remaining for the jury.

Committee Comments

See Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra.

For 2000 version see below

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2000 Version

2.13 DISPOSITION, DURING TRIAL, OF ONE OR MORE BUT LESS THAN ALL CHARGES AGAINST CODEFENDANT[S]

At the beginning of the trial I told you that [both] [all] defendants were charged, among other things, with the crimes of (describe crimes).1 The charges of (describe disposed of charges), as against defendant[s], [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] defendant[s] as to [that] [those] charge[s]. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the Government has proved beyond a reasonable doubt that defendant[s] (name remaining defendant[s]) committed any of the crimes with which [he] [she] [they] [is] [are] charged, or when deciding if the Government has proved beyond a reasonable doubt that defendant[s] (name remaining defendants) committed the remaining crime[s] with which [he] [she] [they] [is] [are] charged.

[The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you: (describe stricken evidence).]2

[So far as this case is concerned, you will continue to be concerned with the following charges: (describe charges).]3

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.16 (4th ed. 1992); Ninth Cir. Crim. Jury Instr. § 2.13 (1997); United States v. Schmaltz, 562 F.2d 558 (8th Cir.), cert. denied, 434 U.S. 957 (1977). See generally West Key # "Criminal Law" 750, 1166.22(2).

See also Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra.

Notes on Use

1. If one or more counts of the same offense have been disposed of and other counts of the same offense remain, the language of this instruction should be modified.

2. If the evidence remains admissible the jury may be so instructed. See United States v. D'Alora, 585 F.2d 16 (1st Cir. 1978) which approved the following instruction: For reasons which need not concern the jury, Count II has been withdrawn from your consideration. However, the evidence you heard relating to that count may be considered by you in your deliberations on the remaining counts.

3. Optional for use when there are a number of charges, and the court feels it would be helpful to "re-cap" those remaining for the jury.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.14 EVIDENCE ADMITTED AGAINST ONLY ONE DEFENDANT

FORECITE National™ Materials Related To This Instruction:

26.1 General Rules

As you know, there are (insert number) defendants on trial here: (name each defendant). Each defendant is entitled to have [his] [her] case decided solely on the evidence which applies to [him] [her]. Some of the evidence in this case is limited under the rules of evidence to one of the defendants, and cannot be considered against the others.

The [testimony] [exhibit about which] you [are about to hear] [just heard], (describe testimony or exhibit), can be considered only in the case against defendant (name). You must not consider that evidence when you are deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against defendant[s] (name[s]).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Limiting instructions informing the jury of proper use of the evidence are sufficient, unless the defendant shows that his defense is irreconcilable with the other defendants’ defenses or the jury cannot compartmentalize the evidence. United States v. Bordeaux, 84 F.3d 1544, 1547 (8^th Cir. 1996). A district court, in admitting Rule 404(b) type evidence, need not issue a limiting instruction sua sponte. United States v. Perkins, 94 F.3d 429, 435-36 (8^th Cir. 1996). In the absence of a specific defense request, no limiting instruction is required where the evidence is relevant to an issue in the case. United States v. Conley, 523 F.2d 650, 654 n.7 (8^th Cir. 1975). Where evidence was admissible against one defendant but not admissible to three other defendants, a trial court did not err in failing to give a limiting instruction where none was requested by defense counsel and before retiring, the jury was instructed that "[e]ach defendant is entitled to have his case decided solely on the evidence which applies to him." United States v. Ortiz, 125 F.3d 630, 633 (8^th Cir. 1997). United States v. Bell, 99 F.3d 870, 881 (8^th Cir. 1996).

(For 2008 version see below).

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2008 Version

As you know, there are (insert number) defendants on trial here: (name each defendant). Each defendant is entitled to have [his] [her] case decided solely on the evidence which applies to [him] [her]. Some of the evidence in this case is limited under the rules of evidence to one of the defendants, and cannot be considered against the others.

The [testimony] [exhibit about which] you [are about to hear] [just heard], (describe testimony or exhibit), can be considered only in the case against defendant (name). You must not consider that evidence when you are deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against defendant[s] (name[s]).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

(For 2006 version see below)

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2006 Version

As you know, there are (insert number) defendants on trial here: (name each defendant). Each defendant is entitled to have [his] [her] case decided solely on the evidence which applies to [him] [her]. Some of the evidence in this case is limited under the rules of evidence to one of the defendants, and cannot be considered against the others.

The [testimony] [exhibit about which] you [are about to hear] [just heard], (describe testimony or exhibit), can be considered only in the case against defendant (name). You must not consider that evidence when you are deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against defendant[s] (name[s]).

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Limiting instructions informing the jury of proper use of the evidence are sufficient, unless the defendant shows that his defense is irreconcilable with the other defendants’ defenses or the jury cannot compartmentalize the evidence. United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996). A district court, in admitting Rule 404(b) type evidence, need not issue a limiting instruction sua sponte. United States v. Perkins, 94 F.3d 429, 435-36 (8th Cir. 1996). In the absence of a specific defense request, no limiting instruction is required where the evidence is relevant to an issue in the case. United States v. Conley, 523 F.2d 650, 654 n.7 (8th Cir. 1975). Where evidence was admissible against one defendant but not admissible to three other defendants, a trial court did not err in failing to give a limiting instruction where none was requested by defense counsel and before retiring, the jury was instructed that "[e]ach defendant is entitled to have his case decided solely on the evidence which applies to him." United States v. Ortiz, 125 F.3d 630, 633 (8th Cir. 1997). United States v. Bell, 99 F.3d 870, 881 (8th Cir. 1996).

For 2000 version see below

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2000 Version

2.14 EVIDENCE ADMITTED AGAINST ONLY ONE DEFENDANT

As you know, there are (insert number) defendants on trial here: (name each defendant). Each defendant is entitled to have [his] [her] case decided solely on the evidence which applies to [him] [her]. Some of the evidence in this case is limited under the rules of evidence to one of the defendants, and cannot be considered against the others.

The [testimony] [exhibit about which] you [are about to hear] [just heard], (describe testimony or exhibit), can be considered only in the case against defendant (name). You must not consider that evidence when you are deciding if the Government has proved, beyond a reasonable doubt, its case against defendant[s] (name[s]).

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.14 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 19 (1988); Ninth Cir. Crim. Jury Instr. § 1.4 (1997); United States v. Leach, 429 F.2d 956, 961(8th Cir. 1970), cert. denied, 402 U.S. 986 (1971). See generally West Key # "Criminal Law" 673(2).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Giving this type of instruction each time evidence limited to one or more defendants is admitted is an appropriate method to guard against prejudice, however such interim instructions are not required and it is within the discretion of the trial judge to determine when interim instructions are necessary. United States v. Oxford, 735 F.2d 276, 280 (7th Cir. 1984). In particularly complex cases, the judge might consider marshaling evidence at the end of the trial, thereby identifying the limited evidence available against a particular defendant. Cf. United States v. Kelly, 349 F.2d 720, 757 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966).

An exhibit admissible against only one defendant may go to the jury room if adequate cautionary instructions are given. United States v. Martinez, 428 F.2d 86 (6th Cir.), cert. denied, 400 U.S. 881 (1970).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.15 STATEMENT OF ONE DEFENDANT IN MULTI-DEFENDANT TRIAL

FORECITE National™ Materials Related To This Instruction:

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

19.3.10 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants

You may consider the statement of defendant (name) only in the case against [him] [her], and not against the other defendant[s]. You may not consider or discuss that statement in any way when you are deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against the other defendant[s].

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Bruton v. United States, 391 U.S. 123 (1968), held that nontestifying codefendant confessions used in a joint trial which implicate another defendant on their face are so "devastating" that their effect cannot be limited by jury instructions to consider that confession only against the codefendant. Unless directly admissible, Bruton holds such confessions to be barred by the Confrontation Clause. The Bruton rule has been extended to apply to a nontestifying codefendant's confession in cases in which the confession of the defendant has been admitted, even where the confessions are "interlocking," Cruz v. New York, 481 U.S. 186, 191-93 (1987). However, the fact that the confessions "interlock" may be considered in assessing whether the statements are supported by sufficient indicia of reliability to be directly admissible against the defendant. Id. at 193-94.

In some cases, a nontestifying codefendant's confession may be admitted with a proper limiting instruction where the confession is redacted to eliminate the defendant's name and any reference to his or her existence or where the statement provides only "evidentiary linkage" to the defendant on trial. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).

This instruction should not be used in connection with coconspirator declarations admitted under FRE 801(d)(2)(E). See, e.g., United States v. Roth, 736 F.2d 1222, 1229 (8th Cir. 1984), or in any situation in which the codefendant's statement may be directly admissible against the defendant. See Cruz v. New York, 481 U.S. at 193-94 (citing Lee v. Illinois, 476 U.S. 530 (1986)). However, a limiting instruction is appropriate when an out-of-court statement of a co-conspirator is admitted not for the truth of the matter stated, but rather to explain the actions of an agent. Garrett v. United States, 78 F.3d 1296, 1303 (8^th Cir. 1995). ("We have previously noted that ‘if a conspirator statement is both permissible background and highly prejudicial, otherwise hearsay, fairness demands that the government find a way to get the background into evidence without hearsay. (Citations omitted.) The trial court should instruct the jury as to the limited purpose of any hearsay statements that cannot be avoided. Without such procedures, there is a strong risk that while the statement may be offered as background for the agents’ actions, they will inevitably be used as direct evidence of the defendant’s guilt.")

(For 2008 version see below).

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2008 Version

You may consider the statement of defendant (name) only in the case against [him] [her], and not against the other defendant[s]. You may not consider or discuss that statement in any way when you are deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against the other defendant[s].

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Bruton v. United States, 391 U.S. 123 (1968), held that nontestifying codefendant confessions used in a joint trial which implicate another defendant on their face are so "devastating" that their effect cannot be limited by jury instructions to consider that confession only against the codefendant. Unless directly admissible, Bruton holds such confessions to be barred by the Confrontation Clause. The Bruton rule has been extended to apply to a nontestifying codefendant's confession in cases in which the confession of the defendant has been admitted, even where the confessions are "interlocking," Cruz v. New York, 481 U.S. 186, 191-93 (1987). However the fact that the confessions "interlock" may be considered in assessing whether the statements are supported by sufficient indicia of reliability to be directly admissible against the defendant. Id. at 193-94.

This instruction should not be used in connection with coconspirator declarations admitted under FRE 801(d)(2)(E). See, e.g., United States v. Roth, 736 F.2d 1222, 1229 (8th Cir. 1984), or in any situation in which the codefendant's statement may be directly admissible against the defendant. See Cruz v. New York, 481 U.S. at 193-94 (citing Lee v. Illinois, 476 U.S. 530 (1986)). However, a limiting instruction is appropriate when an out-of-court statement of a co-conspirator is admitted not for the truth of the matter stated but rather to explain the actions of an agent. Garrett v. United States, 78 F.3d 1296, 1303 (8^th Cir. 1995). ("We have previously noted that ‘if a conspirator statement is both permissible background and highly prejudicial, otherwise hearsay, fairness demands that the government find a way to get the background into evidence without hearsay. (Citations omitted.) The trial court should instruct the jury as to the limited purpose of any hearsay statements that cannot be avoided. Without such procedures, there is a strong risk that while the statement may be offered as background for the agents’ actions, they will inevitably be used as direct evidence of the defendant’s guilt.")

(For 2006 version see below)

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2006 Version

You may consider the statement of defendant (name) only in the case against [him] [her], and not against the other defendant[s]. You may not consider or discuss that statement in any way when you are deciding if the [government] [prosecutor] has proved, beyond a reasonable doubt, its case against the other defendant[s].

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Bruton v. United States, 391 U.S. 123 (1968), held that nontestifying codefendant confessions used in a joint trial which implicate another defendant on their face are so "devastating" that their effect cannot be limited by jury instructions to consider that confession only against the codefendant. Unless directly admissible, Bruton holds such confessions to be barred by the Confrontation Clause. The Bruton rule has been extended to apply to a nontestifying codefendant's confession in cases in which the confession of the defendant has been admitted, even where the confessions are "interlocking," Cruz v. New York, 481 U.S. 186, 191-93 (1987). However the fact that the confessions "interlock" may be considered in assessing whether the statements are supported by sufficient indicia of reliability to be directly admissible against the defendant. Id. at 193-94.

This instruction should not be used in connection with coconspirator declarations admitted under FRE 801(d)(2)(E). See, e.g., United States v. Roth, 736 F.2d 1222, 1229 (8th Cir. 1984), or in any situation in which the codefendant's statement may be directly admissible against the defendant. See Cruz v. New York, 481 U.S. at 193-94 (citing Lee v. Illinois, 476 U.S. 530 (1986)). However, a limiting instruction is appropriate when an out-of-court statement of a co-conspirator is admitted not for the truth of the matter stated but rather to explain the actions of an agent. Garrett v. United States, 78 F.3d 1296, 1303 (8th Cir. 1995). ("We have previously noted that ‘if a conspirator statement is both permissible background and highly prejudicial, otherwise hearsay, fairness demands that the government find a way to get the background into evidence without hearsay. (Citations omitted.) The trial court should instruct the jury as to the limited purpose of any hearsay statements that cannot be avoided. Without such procedures, there is a strong risk that while the statement may be offered as background for the agents’ actions, they will inevitably be used as direct evidence of the defendant’s guilt.")

For 2000 version see below

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

2000 Version

2.15 STATEMENT OF ONE DEFENDANT IN MULTI-DEFENDANT TRIAL

You may consider the statement of defendant (name) only in the case against [him] [her], and not in the case against the other defendant[s]. What that means is that you may consider defendant (name)'s statement in the case against [him] [her] and for that purpose rely on it as much or as little as you think proper, but you may not consider or discuss that statement in any way when you are deciding if the Government has proved, beyond a reasonable doubt, its case against the other defendant[s].

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 37 (1988). See also 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.04 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 3.02 (1999). See generally West Key # "Criminal Law" 673(4).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

The standard codefendant confession instruction is not as important as it once was due to the Bruton rule. Bruton v. United States, 391 U.S. 123 (1968). Bruton held that nontestifying codefendant confessions used in a joint trial which implicate another defendant on their face are so "devastating" that their effect cannot be limited by jury instructions to consider that confession only against the codefendant. Unless directly admissible, Bruton holds such confessions to be barred by the Confrontation Clause. The Bruton rule has been extended to apply to a nontestifying codefendant's confession in cases in which the confession of the defendant has been admitted, even where the confessions are "interlocking," Cruz v. New York, 481 U.S. 186, 191-93 (1987). However the fact that the confessions "interlock" may be considered in assessing whether the statements are supported by sufficient indicia of reliability to be directly admissible against the defendant. Id. at 193-94.

This instruction should not be used in connection with coconspirator declarations admitted under Fed. R. Evid. 801(d)(2)(E). See, e.g., United States v. Roth, 736 F.2d 1222, 1229 (8th Cir.), cert. denied, 469 U.S. 1058 (1984), or in any other situation in which the codefendant's statement may be directly admissible against the defendant. See Cruz, 481 U.S. at 193-94 (citing Lee v. Illinois, 476 U.S. 530 (1986)).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.16 DEFENDANT'S TESTIMONY -
IMPEACHMENT BY PRIOR CONVICTION

FORECITE National™ Materials Related To This Instruction:

27.3.2 Prior Conviction Of Defendant

You [are about to hear] [have heard] evidence that defendant (name) was previously convicted of [a] crime[s]. You may use that evidence only to help you decide whether to believe [his] [her] testimony and how much weight to give it. That evidence does not mean that [he] [she] committed the crime charged here, and you must not use that evidence as any proof of the crime charged in this case.

[That evidence may not be used in any way at all in connection with the other defendant[s]].¹

Notes on Use

1. For use in a multiple defendant case.

Committee Comments

See Introductory Comment, Section, 2.00, supra, concerning limiting instructions.

If past crimes of the defendant are to be used to establish intent, motive or other mental element, and not for the purpose of impeachment, Instruction 2.08 should be used rather than this Instruction. If the past crimes are to be used to show a common pattern, scheme or plan as between the prior acts and present offense, or to show the defendant's identity, Instruction 2.09, supra, should be used. For impeachment by prior conviction of a witness other than the defendant, see Instruction 2.18, infra.

(For 2008 version see below).

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2008 Version

You [are about to hear] [have heard] evidence that defendant (name) was previously convicted of [a] crime[s]. You may use that evidence only to help you decide whether to believe [his] [her] testimony and how much weight to give it. That evidence does not mean that [he] [she] committed the crime charged here, and you must not use that evidence as any proof of the crime charged in this case.

[That evidence may not be used in any way at all in connection with the other defendant[s]].¹

Notes on Use

1. For use in a multiple defendant case.

Committee Comments

See Introductory Comment, Section, 2.00, supra, concerning limiting instructions.

(For 2006 version see below)

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

2006 Version

You [are about to hear] [have heard] evidence that defendant (name) was previously convicted of [a] crime[s]. You may use that evidence only to help you decide whether to believe [his] [her] testimony and how much weight to give it. That evidence does not mean that [he] [she] committed the crime charged here, and you must not use that evidence as any proof of the crime charged in this case.

[That evidence may not be used in any way at all in connection with the other defendant[s]].1

Notes on Use

1. For use in a multiple defendant case.

Committee Comments

See Introductory Comment, Section, 2.00, supra, concerning limiting instructions.

For 2000 version see below

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2000 Version

2.16 DEFENDANT'S TESTIMONY: IMPEACHMENT BY PRIOR CONVICTION

You [are about to hear] [have heard] evidence that the defendant (name) was previously convicted of [a] crime[s]. You may use that evidence only to help you decide whether to believe [his] [her] testimony and how much weight to give it. That evidence does not mean that [he] [she] committed the crime charged here, and you must not use that evidence as any proof of the crime charged in this case.

[That evidence may not be used in any way at all in connection with the other defendant[s]].1

Committee Comments

See Ninth Cir. Crim. Jury Instr. 4.6 (1997). See also 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.08 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 3.05 (1999); Federal Judicial Center, Pattern Criminal Jury Instructions § 41 (1988). See generally West Key # "Criminal Law" 786(6), "Witnesses" 337(1-6).

See also Introductory Comment, Section, 2.00, supra, concerning limiting instructions.

Notes on Use

1. For use in a multiple defendant case.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.17 DEFENDANT'S TESTIMONY - IMPEACHMENT BY OTHERWISE
INADMISSIBLE STATEMENT (Harris v. New York)

FORECITE National™ Materials Related To This Instruction:

26.3.3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda

There has been evidence that defendant (name) was questioned at a time prior to trial, and made certain statements. You may use that evidence only to help you decide whether [he] [she] made a statement before trial and whether what [he] [she] said here in court was true.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

A statement obtained in violation of Miranda may constitutionally be used for impeachment purposes if it was voluntary and trustworthy. Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); Clark v. Wood, 823 F.2d 1241, 1246 (8th Cir. 1987). The trial judge should stress that the government cannot use the prior statement to prove the defendant's guilt; it can only use it to impeach. The statement can only be used if the defendant takes the stand and testifies contrary to the prior statement. Where the statement is used for impeachment, the standard for admissibility is voluntariness. Oregon v. Elstad, 470 U.S. 298, 307-08 (1985). If the defendant raises a voluntariness issue with respect to the prior statement, it will also be necessary upon the defendant's request to instruct the jury appropriately on that issue (see Committee Comments, Instruction 2.07, supra). However, absent a request and a clear invocation of 18 USC 3501(a) at trial, such an instruction is not required. United States v. Diop, 546 F.2d 484, 485-86 (2d Cir. 1976). Presumably in those circumstances it would also be necessary, pursuant to 18 USC 3501, for the trial judge to conduct a hearing out of the presence of the jury, and make a finding on the issue, before allowing the prior statement to be used even for impeachment purposes.

Use of a defendant’s voluntary statement to an agent may be used for impeachment purposes if a proper limiting instruction is given. United States v. Tucker, 137 F.3d 1016, 1035 (8^th Cir. 1998).

(For 2008 version see below).

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2008 Version

There has been evidence that defendant (name) was questioned at a time prior to trial, and made certain statements. You may use that evidence only to help you decide whether [he] [she] made a statement before trial and whether what [he] [she] said here in court was true.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Use of a defendant’s voluntary statement to an agent may be used for impeachment purposes if a proper limiting instruction is given. United States v. Tucker, 137 F.3d 1016, 1035 (8^th Cir. 1998).

(For 2006 version see below)

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2006 Version

There has been evidence that defendant (name) was questioned at a time prior to trial, and made certain statements. You may use that evidence only to help you decide whether [he] [she] made a statement before trial and whether what [he] [she] said here in court was true.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Use of a defendant’s voluntary statement to an agent may be used for impeachment purposes if a proper limiting instruction is given. United States v. Tucker, 137 F.3d 1016, 1035 (8th Cir. 1998).

For 2000 version see below

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2000 Version

2.17 DEFENDANT'S TESTIMONY: IMPEACHMENT BY OTHERWISE INADMISSIBLE STATEMENT (Harris v. New York)

There has been evidence that the defendant (name) was questioned at a time prior to trial, and made certain statements. You may use that evidence only to help you decide if [he] [she] said something different earlier, and if what [he] [she] said here in court was true. You must not, however, consider what was said earlier as any proof or evidence of the defendant (name)'s guilt.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 42 (1988). See generally West Key # "Witnesses" 390.

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

A statement obtained in violation of Miranda may constitutionally be used for impeachment purposes. Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); Clark v. Wood, 823 F.2d 1241, 1246 (8th Cir.), cert. denied, 484 U.S. 945 (1987). The trial judge should stress that the government cannot use the prior statement to prove the defendant's guilt; it can only use it to impeach. Of course, the statement can only be used if the defendant takes the stand and testifies contrary to the prior statement. Where the statement is used for impeachment, the standard for admissibility is voluntariness. Oregon v. Elstad, 470 U.S. 298, 307-08 (1985). If the defendant raises a voluntariness issue with respect to the prior statement, it will also be necessary upon defendant's request to instruct the jury appropriately on that issue (see Committee Comments, Instruction 2.07, supra). However, absent a request and a clear invocation of 18 USC 3501(a) at trial, such an instruction is not required. United States v. Diop, 546 F.2d 484, 485-86 (2d Cir. 1976). Presumably in those circumstances it would also be necessary, pursuant to 18 USC 3501, for the trial judge to conduct a hearing out of the presence of the jury, and make a finding on the issue, before allowing the prior statement to be used even for impeachment purposes.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.18 IMPEACHMENT OF WITNESS - PRIOR CONVICTION

FORECITE National™ Materials Related To This Instruction:

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

You have heard evidence that the witness (name) was once convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give [his] [her] testimony.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Where the witness is the defendant, Instruction 2.16, supra, should be used.

(For 2008 version see below).

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2008 Version

You have heard evidence that the witness (name) was once convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give [his] [her] testimony.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Where the witness is the defendant, Instruction 2.16, supra, should be used.

(For 2006 version see below)

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2006 Version

You have heard evidence that the witness (name) was once convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give [his] [her] testimony.

Committee Comments

See Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Where the witness is the defendant, Instruction 2.16, supra, should be used.

For 2000 version see below

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

2000 Version

2.18 IMPEACHMENT OF WITNESS: PRIOR CONVICTION

You have heard evidence that witness (name) was once convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give [his] [her] testimony.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 30 (1988); Ninth Cir. Crim. Jury Instr. § 4.08 (1997). See also 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.07 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 1.11 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.11 (1999). See generally Fed. R. Evid. 609; West Key # "Witnesses" 344(l-5), 345(1-4).

See also Introductory Comment, Section 2.00, supra, concerning limiting instructions.

Where the witness is the defendant, Instruction 2.16, supra, should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.19 WITNESS WHO HAS PLEADED GUILTY

FORECITE National™ Materials Related To This Instruction:

26.2.3 Witness Who Has Pled Guilty: Limited Purpose Instruction

You have heard evidence that the witness (name) has [pled] [pleaded] guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt. You may consider that witness's guilty plea only for the purpose of determining how much, if at all, to rely upon that witness's testimony.¹

Notes on Use

1. Such evidence may also be used to show the witness' acknowledgment of participation in the offense. United States v. Roth, 736 F.2d 1222, 1226 (8th Cir. 1984). If admitted for that purpose, the instruction should be so modified .

Committee Comments

See Introductory Comment, Section 2.000, supra, and Committee Comments, Instruction 2.12, supra, concerning a codefendant's guilty plea.

Evidence that a codefendant has pleaded guilty may not be used as substantive proof of a defendant's guilt. However, such evidence is admissible to impeach, to show the witness' acknowledgment of participation in the offense, or to reflect on his credibility. In such circumstances, the jury should be instructed that the evidence is received for one or more of these purposes alone, and that the jurors are not to infer the guilt of the defendant. United States v. Lundrum, 898 F.2d 635, 640 n.10 (8^th Cir. 1990) (noting with approval 8^th Cir. Model Crim. Jury Instruction 2.19); United States v. Roth, 736 F.2d 1222, 1226 (8th Cir. 1984). See also Gerberding v. United States, 471 F.2d 55, 60 (8th Cir. 1973); United States v. Wiesle, 542 F.2d 61, 62-63 (8th Cir. 1976); Wallace v. Lockhart, 701 F.2d 719, 725-26 (8th Cir. 1983).

However, the admission of such evidence without a limiting instruction is not reversible error if defense counsel did not request an instruction and if the evidence was introduced and used for a proper purpose. Gerberding v. United States, 471 F.2d at 60; United States v. Wiesle, 542 F.2d at 63; United States v. Roth, 736 F.2d at 1226-27. In Roth it was held that a proper purpose of disclosing the plea agreement and cooperation is to diffuse any attempt to show bias on cross-examination.

For a discussion of impeachment of a witness by a prior inconsistent statement which also incriminates the defendant and appropriate limiting instructions, see United States v. Rogers, 549 F.2d 490, 494-98 (8th Cir. 1976).

(For 2008 version see below).

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2008 Version

You have heard evidence that the witness (name) has [pled] [pleaded] guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt. You may consider that witness's guilty plea only for the purpose of determining how much, if at all, to rely upon that witness's testimony.¹

Notes on Use

Committee Comments

See Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra, concerning a codefendant's guilty plea.

Evidence that a codefendant has pleaded guilty may not be used as substantive proof of a defendant's guilt. However, such evidence is admissible to impeach, to show the witness's acknowledgment of participation in the offense, or to reflect on his credibility. In such circumstances the jury should be instructed that the evidence is received for one or more of these purposes alone, and that the jurors are not to infer the guilt of the defendant. United States v. Lundrum, 898 F.2d 635, 640 n.10 (8^th Cir. 1990) (noting with approval 8^th Cir. Model Crim. Jury Instruction 2.19); United States v. Roth, 736 F.2d 1222, 1226 (8th Cir. 1984). See also Gerberding v. United States, 471 F.2d 55, 60 (8th Cir. 1973); United States v. Wiesle, 542 F.2d 61, 62-63 (8th Cir. 1976); Wallace v. Lockhart, 701 F.2d 719, 725-26 (8th Cir. 1983).

(For 2006 version see below)

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2006 Version

You have heard evidence that the witness (name) has [pled] [pleaded] guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt. You may consider that witness's guilty plea only for the purpose of determining how much, if at all, to rely upon that witness's testimony.1

Notes on Use

Committee Comments

See Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra, concerning a codefendant's guilty plea.

Evidence that a codefendant has pleaded guilty may not be used as substantive proof of a defendant's guilt. However, such evidence is admissible to impeach, to show the witness's acknowledgment of participation in the offense, or to reflect on his credibility. In such circumstances the jury should be instructed that the evidence is received for one or more of these purposes alone, and that the jurors are not to infer the guilt of the defendant. United States v. Lundrum, 898 F.2d 635, 640 n.10 (8th Cir. 1990) (noting with approval 8th Cir. Model Crim. Jury Instruction 2.19); United States v. Roth, 736 F.2d 1222, 1226 (8th Cir. 1984). See also Gerberding v. United States, 471 F.2d 55, 60 (8th Cir. 1973); United States v. Wiesle, 542 F.2d 61, 62-63 (8th Cir. 1976); Wallace v. Lockhart, 701 F.2d 719, 725-26 (8th Cir. 1983).

For 2000 version see below

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2000 Version

2.19 WITNESS WHO HAS PLEADED GUILTY

You have heard evidence that witness (name) has pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt. You may consider that witness's guilty plea only for the purpose of determining how much, if at all, to rely upon that witness's testimony.1

Committee Comments

See generally West Key # "Criminal Law" 655(l), 673(3), 1170 1/2(1), 1173.2(9).

See also Introductory Comment, Section 2.00, supra, and Committee Comments, Instruction 2.12, supra, concerning a codefendant's guilty plea.

Evidence that a codefendant has pleaded guilty may not be used as substantive proof of a defendant's guilt. However, such evidence is admissible to impeach, to show the witness's acknowledgment of participation in the offense, or to reflect on his credibility. In such circumstances the jury should be instructed that the evidence is received for one or more of these purposes alone, and that the jurors are not to infer the guilt of the defendant. United States v. Roth, 736 F.2d 1222, 1226 (8th Cir.), cert. denied, 469 U.S. 1058 (1984). See also Gerberding v. United States, 471 F.2d 55, 60 (8th Cir. 1973); United States v. Wiesle, 542 F.2d 61, 62-63 (8th Cir. 1976); Wallace v. Lockhart, 701 F.2d 719, 725-26 (8th Cir.), cert. denied, 464 U.S. 934 (1983).

For a discussion of impeachment of a witness by a prior inconsistent statement which also incriminates the defendant and appropriate limiting instructions, see United States v. Rogers, 549 F.2d 490, 494-98 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977).

Notes on Use

1. Such evidence may also be used to show the witness' acknowledgment of participation in the offense. United States v. Roth, 736 F.2d 1222, 1226 (8th Cir.), cert. denied, 469 U.S. 1058 (1984). If admitted for that purpose, the instruction should be so modified.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.20 DEFENDANT'S PREVIOUS TRIAL

FORECITE National™ Materials Related To This Instruction:

16.20 Retrial

You have heard that there was a previous trial of the defendant[s] for the crime[s] charged here. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. The fact of a previous trial must have no effect on your consideration of this case.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.08 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 14 (1988); Ninth Cir. Crim. Jury Instr. § 2.14 (formerly 2.09 (1997)). See also United States v. Hykel, 461 F.2d 721, 726 (3d Cir. 1972); Carsey v. United States, 392 F.2d 810, 812 (D.C. Cir. 1967). See generally, West Key # "Criminal Law" 713, 768(1).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless the jury has been informed of the previous trial and the instruction has been specifically requested by the defense.

(For 2008 version see below).

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2008 Version

You have heard that there was a previous trial of the defendant[s] for the crime[s] charged here. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. The fact of a previous trial must have no effect on your consideration of this case.

Committee Comments

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless the jury has been informed of the previous trial and the instruction has been specifically requested by the defense.

(For 2006 version see below)

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2006 Version

You have heard that there was a previous trial of the defendant[s] for the crime[s] charged here. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. The fact of a previous trial must have no effect on your consideration of this case.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 10.08 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 14 (1988); Ninth Cir. Crim. Jury Instr. § 2.14 (1997). See also United States v. Hykel, 461 F.2d 721, 726 (3d Cir. 1972); Carsey v. United States, 392 F.2d 810, 812 (D.C. Cir. 1967). See generally, West Key # "Criminal Law" 713, 768(1).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless the jury has been informed of the previous trial and the instruction has been specifically requested by the defense.

For 2000 version see below

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2000 Version

2.20 DEFENDANT'S PREVIOUS TRIAL

You have heard that there was a previous trial of the defendant[s] for the crime[s] charged here. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. The fact of a previous trial must have no effect on your consideration of this case.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 10.08 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 14 (1988); Ninth Cir. Crim. Jury Instr. § 2.09 (1997). See also United States v. Hykel, 461 F.2d 721, 726 (3d Cir. 1972); Carsey v. United States, 392 F.2d 810, 812 (D.C. Cir. 1967). See generally, West Key # "Criminal Law" 713, 768(1).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless the jury has been informed of the previous trial and the instruction has been specifically requested by the defense.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.21 DEFENDANT'S PHOTOGRAPHS -"MUG SHOTS"

FORECITE National™ Materials Related To This Instruction:

25.15 Evidence That Suggests Defendant Was Previously Arrested Or Convicted

The witness has testified that [he] [she] viewed a photograph of defendant (name) which was shown to [him] [her] by the police. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that [he] [she] committed this or any other crime, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 15 (1988); Ninth Cir. Crim. Jury Instr. § 2.11 (1997). See generally United States v. Runge, 593 F.2d 66, 69 (8th Cir. 1979).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless specifically requested by the defense.

(For 2008 version see below).

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2008 Version

The witness has testified that [he] [she] viewed a photograph of defendant (name) which was shown to [him] [her] by the police. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that [he] [she] committed this or any other crime, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 15 (1988); Ninth Cir. Crim. Jury Instr. § 2.11 (1997). See generally United States v. Runge, 593 F.2d 66, 69 (8th Cir. 1979).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless specifically requested by the defense.

(For 2006 version see below)

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2006 Version

The witness has testified that [he] [she] viewed a photograph of defendant (name) which was shown to [him] [her] by the police. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that [he] [she] committed this or any other crime, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 15 (1988); Ninth Cir. Crim. Jury Instr. § 2.11 (1997). See generally United States v. Runge, 593 F.2d 66, 69 (8th Cir. 1979).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless specifically requested by the defense.

For 2000 version see below

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

2000 Version

2.21 DEFENDANT'S PHOTOGRAPHS: "MUG SHOTS"

The witness has testified that [he] [she] viewed a photograph of the defendant (name) which was shown to [him] [her] by the police. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that [he] [she] committed this or any other crime, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 15 (1988); Ninth Cir. Crim. Jury Instr. § 2.11 (1997). See generally United States v. Runge, 593 F.2d 66, 69 (8th Cir.), cert. denied, 444 U.S. 859 (1979).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

This instruction should not be given unless specifically requested by the defense.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

2.22 DISCHARGE OF DEFENSE COUNSEL DURING TRIAL

FORECITE National™ Materials Related To This Instruction:

18.1.1 Self-Representation Instructions

Even though defendant (name) was at first represented by a lawyer, [he] [she] has decided to continue the trial representing [himself] [herself] and not to use the services of a lawyer. [He] [She] has a right to do that. [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 6 (1988).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

(For 2008 version see below).

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2008 Version

Even though defendant (name) was at first represented by a lawyer, [he] [she] has decided to continue the trial representing [himself] [herself] and not to use the services of a lawyer. [He] [She] has a right to do that. [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 6 (1988).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

(For 2006 version see below)

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2006 Version

Even though defendant (name) was at first represented by a lawyer, [he] [she] has decided to continue the trial representing [himself] [herself] and not to use the services of a lawyer. [He] [She] has a right to do that. [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 6 (1988).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.

For 2000 version see below

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2000 Version

2.22 DISCHARGE OF DEFENSE COUNSEL DURING TRIAL

Even though the defendant (name) was at first represented by a lawyer, [he] [she] has decided to continue the trial representing [himself] [herself] and not to use the services of a lawyer. [He] [She] has a right to do that. [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must have no effect on your consideration of the case.

Committee Comments

See Federal Judicial Center, Pattern Criminal Jury Instructions § 6 (1988).

See also Introductory Comment, Section 2.00, supra, concerning curative instructions.