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

        3.00     Final Instructions for Use in Every Trial (Boilerplate) (Introductory Comment)
        3.01     Introduction
        3.02     Duty Of Jury
        3.03     Evidence; Limitations
        3.04     Credibility Of Witnesses
        3.05     Description Of Charge; Indictment Not Evidence; Presumption Of Innocence; Burden Of Proof (Single Defendant, Single Count)
        3.06     Description Of Charges; Indictment Not Evidence; Presumption Of Innocence; Burden Of Proof (Single Defendant, Multiple Counts)
        3.07     Description Of Charges; Indictment Not Evidence; Presumption Of Innocence; Burden Of Proof (Multiple Defendants, Single Count)
        3.08     Description Of Charges; Indictment Not Evidence; Presumption Of Innocence; Burden Of Proof (Multiple Defendants, Multiple Counts)
        3.09     Elements Of Offense - Burden Of Proof
                        Appendix A
                        Appendix B
        3.10     Lesser-Included Offense
        3.11     Reasonable Doubt
        3.12     Election Of Foreperson; Duty to Deliberate; Punishment Not a Factor; Communications With Court; Cautionary; Verdict Form
        3.13     Venue

8TH CIRCUIT MODEL INSTRUCTIONS 2009

3.00 
FINAL INSTRUCTIONS FOR USE IN EVERY TRIAL (BOILERPLATE)
Introductory Comment

The instructions included in this section are "boilerplate" instructions which would generally be part of the final charge in any trial regardless of the particular offense or issues.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

Members of the jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. [This is true even though some of those I gave you [at the beginning of] [during] trial are not repeated here.]

¹[The instructions I am about to give you now [as well as those I gave you earlier] are in writing and will be available to you in the jury room.] [I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all instructions, whenever given and whether in writing or not, must be followed.]

1. Optional for use when the final instructions are to be sent to the jury room with the jury. The Committee recommends that practice.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.01  (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997). See generally West Key # "Criminal Law" 887.

(For 2008 version see below).

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2008 Version

1. Optional for use when the final instructions are to be sent to the jury room with the jury. The Committee recommends that practice.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997). See generally West Key # "Criminal Law" 887.

(For 2006 version see below)

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1. Optional for use when the final instructions are to be sent to the jury room with the jury. The Committee recommends that practice.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997). See generally West Key # "Criminal Law" 887.

For 2000 version see below

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2000 Version

3.01 INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. [This is true even though some of those I gave you [at the beginning of] [during] trial are not repeated here.]1

[The instructions I am about to give you now [as well as those I gave you earlier] are in writing and will be available to you in the jury room.] [I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all instructions, whenever given and whether in writing or not, must be followed.]

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal§ 12.01 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 1.01 (1999); Ninth Cir.Crim. Jury Instr. 3.1 (1997). See generally West Key # "Criminal Law" 887.

1. Optional for use when the final instructions are to be sent to the jury room with the jury. The Committee recommends that practice.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 278: Duty Of Jury To Deliberate

It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.

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

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997).

(For 2008 version see below).

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2008 Version

It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.

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

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.01  (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997).

(For 2006 version see below)

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It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.

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

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997).

For 2000 version see below

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2000 Version

3.02 DUTY OF JURY

It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.

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

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.01 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr. 3.1 (1997).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 26 Limited Purpose Evidence

I have mentioned the word "evidence." The "evidence" in this case consists of the testimony of witnesses [the documents and other things received as exhibits] [the facts that have been stipulated -- this is, formally agreed to by the parties,] [the facts that have been judicially noticed -- this is, facts which I say you may, but are not required to, accept as true, even without evidence].¹

You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.²

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

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

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

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

4. Anything you saw or heard about this case outside the courtroom is not evidence.³

Finally, if you were instructed that some evidence was received for a limited purpose only, you must follow that instruction.⁴

1. The bracketed material should be given only if there has been documentary or exhibit evidence, stipulated evidence or judicially noticed evidence. Rule 201(g) of the Federal Rules of Evidence requires that the court instruct the jury that "it may, but is not required to, accept as conclusive any fact judicially noticed." See Instruction 2.04, supra.

2. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.05 (5th ed. 2000). See generally West Key # "Criminal Law" 305-325.

In certain situations it may be appropriate to instruct the jury with respect to a specific inference it may make. See Instructions 4.13 and 4.15, infra, for instructions and comments on specific inferences.

3. This paragraph should not be given, of course, if there has been an inspection or testimony taken outside the courtroom.

4. See Instructions 2.08-.20, supra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 12.03, 12.08 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Ninth Cir. Crim. Jury Instr. 3.4, 3.5 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1-4.2 (1997).

See also Instructions 1.03, 2.02, 2.03, 2.04, supra.

(For 2008 version see below).

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2008 Version

I have mentioned the word "evidence." The "evidence" in this case consists of the testimony of witnesses [the documents and other things received as exhibits] [the facts that have been stipulated -- this is, formally agreed to by the parties,] [the facts that have been judicially noticed -- this is, facts which I say you may, but are not required to, accept as true, even without evidence].¹

You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.²

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

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

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

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

4. Anything you saw or heard about this case outside the courtroom is not evidence.³

Finally, if you were instructed that some evidence was received for a limited purpose only, you must follow that instruction.⁴

1. The bracketed material should be given only if there has been documentary or exhibit evidence, stipulated evidence or judicially noticed evidence. Rule 201(g) of the Federal Rules of Evidence requires that the court instruct the jury that "it may, but is not required to, accept as conclusive any fact judicially noticed." See Instruction 2.04, supra.

2. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.05 (5th ed. 2000). See generally West Key # "Criminal Law" 305-325.

In certain situations it may be appropriate to instruct the jury with respect to a specific inference it may make. See Instructions 4.13 and 4.15, infra, for instructions and comments on specific inferences.

3. This paragraph should not be given, of course, if there has been an inspection or testimony taken outside the courtroom.

4. See Instructions 2.08-.20, supra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 12.03, 12.08 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Ninth Cir. Crim. Jury Instr. 3.4, 3.5 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1-4.2 (1997).

See also Instructions 1.03, 2.02, 2.03, 2.04, supra.

(For 2006 version see below)

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I have mentioned the word "evidence." The "evidence" in this case consists of the testimony of witnesses [the documents and other things received as exhibits] [the facts that have been stipulated -- this is, formally agreed to by the parties,] [the facts that have been judicially noticed -- this is, facts which I say you may, but are not required to, accept as true, even without evidence].1

You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.2

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

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

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

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

4. Anything you saw or heard about this case outside the courtroom is not evidence.3

Finally, if you were instructed that some evidence was received for a limited purpose only, you must follow that instruction.4

1. The bracketed material should be given only if there has been documentary or exhibit evidence, stipulated evidence or judicially noticed evidence. Rule 201(g) of the Federal Rules of Evidence requires that the court instruct the jury that "it may, but is not required to, accept as conclusive any fact judicially noticed." See Instruction 2.04, supra.

2. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.05 (5th ed. 2000). See generally West Key # "Criminal Law" 305-325.

In certain situations it may be appropriate to instruct the jury with respect to a specific inference it may make. See Instructions 4.13 and 4.15, infra, for instructions and comments on specific inferences.

3. This paragraph should not be given, of course, if there has been an inspection or testimony taken outside the courtroom.

4. See Instructions 2.08-.20, supra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 12.03, 12.08 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Ninth Cir. Crim. Jury Instr. 3.4, 3.5 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1-4.2 (1997).

See also Instructions 1.03, 2.02, 2.03, 2.04, supra.

For 2000 version see below

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2000 Version

3.03 EVIDENCE; LIMITATIONS

I have mentioned the word "evidence." The "evidence" in this case consists of the testimony of witnesses [the documents and other things received as exhibits] [the facts that have been stipulated -- this is, formally agreed to by the parties,] [the facts that have been judicially noticed -- this is, facts which I say you may, but are not required to, accept as true, even without evidence].1

You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.2

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

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

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

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

4. Anything you saw or heard about this case outside the courtroom is not evidence.3

Finally, if you were instructed that some evidence was received for a limited purpose only, you must follow that instruction.4

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 12.03, 12.08 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Ninth Cir. Crim. Jury Instr. 3.4, 3.5 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1-4.2 (1997).

See also Instructions 1.03, 2.02, 2.03, 2.04, supra.

1. The bracketed material should be given only if there has been documentary or exhibit evidence, stipulated evidence or judicially noticed evidence. Rule 201(g) of the Federal Rules of Evidence requires that the court instruct the jury that "it may, but is not required to, accept as conclusive any fact judicially noticed." See Instruction 2.04, supra.

2. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.05 (4th ed. 1992). See generally West Key # "Criminal Law" 305-325.

In certain situations it may be appropriate to instruct the jury with respect to a specific inference it may make. See §§ 4.13 and 4.15, infra, for instructions and comments on specific inferences.

3. This paragraph should not be given, of course, if there has been an inspection or testimony taken outside the courtroom.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 27 Witness Credibility

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

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

[In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.]

[You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.]²

1. With respect to the use of prior inconsistent statements (second paragraph of this instruction), FRE 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. Note, however, that such a limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. FRE 801(d)(1)(A).

2. To be given only if the defendant has testified. See Taylor v. United States, 390 F.2d 278, 282 (8th Cir. 1968).

See Ninth Cir. Crim. Jury Instr. 3.7 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.01, 15.02 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.08 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 5 (1997); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 785 (1-16).

See also Instruction 1.05, supra.

The form of a credibility instruction is within the discretion of the trial court. Clark v. United States, 391 F.2d 57, 60 (8th Cir. 1968); United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979). In Clark, the court held that the following instruction given by the trial court correctly set out the factors to be considered by the jury in determining the credibility of the witnesses:

You are instructed that you are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his or her demeanor on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling toward the parties to the trial, the probability or improbability of his or her statements as well as all the other facts and circumstances given in evidence.

391 F.2d at 60. In Merrival, the court held that the following general credibility instruction provided protection for the accused:

You, as jurors, are the sole judges of the truthfulness of the witnesses and the weight their testimony deserves.

You should carefully study all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's ability to observe the matters as to which he or she has testified and whether each witness is either supported or contradicted by other evidence in the case.

600 F.2d at 720 n.2.

The general credibility instruction given in United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975), covers other details:

The jurors are the sole judges of the weight and credibility of the testimony and of the value to be given to each and any witness who has testified in the case. In reaching a conclusion as to what weight and value you ought to give to the testimony of any witness who has testified in the case, you are warranted in taking into consideration the interest of the witness in the result of the trial; take into consideration his or her relation to any party in interest; his or her demeanor upon the witness stand; his or her manner of testifying; his or her tendency to speak truthfully or falsely, as you may believe, the probability or improbability of the testimony given; his or her situation to see and observe; and his or her apparent capacity and willingness to truthfully and accurately tell you what he or she saw and observed; and if you believe any witness testified falsely as to any material issue in this case, then you must reject that which you believe to be false, and you may reject the whole or any part of the testimony of such witness. (Emphasis omitted.)

The instruction in the text is basically a paraphrase of Ninth Cir. Crim. Jury Instr. 3.7 (1997) and former 1 Edward J. Devitt, et al., Federal Jury Practice and Instructions: Civil and Criminal § 17.01 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000)), as approved in United States v. Hastings, 577 F.2d at 42. However any factors set out in the Phillips, Clark, or Merrival instructions, may be inserted when relevant to the case.

A general instruction on the credibility of witnesses is in most cases sufficient. Whether a more specific credibility instruction is required with respect to any particular witness or class of witnesses is generally within the discretion of the trial court. Some of the most common situations are covered in Instructions 4.04 (Testimony under Grant of Immunity or Plea Bargain), 4.05 (Testimony of Accomplice), 4.06 (Testimony of Informer), and 4.08 (Eye Witness Testimony), infra.

As to the credibility of a "perjurer," see United States v. Koonce, 485 F.2d 374, 378 n.8 (8th Cir. 1973); United States v. Spector, 793 F.2d 932, 939 (8th Cir. 1986); United States v. Reda, 765 F.2d 715, 718-19 (8th Cir. 1985); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.10 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.03 (1999); Ninth Cir. Crim. Jury Instr. 4.8 (1997). Both Koonce and Reda supported the trial court's rejection of a "falsus in uno, falsus in omnibus" instruction.

Some instructions specifically address the credibility of a defendant in terms of his interest in the case. See, e.g., 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.12 (5th ed. 2000). This circuit has repeatedly criticized the use of such an instruction because it has the effect of singling out the defendant in the jury charge. United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir. 1976). See also Taylor v. United States, 390 F.2d 278, 282 (8th Cir. 1968); United States v. Brown, 453 F.2d 101, 107 (8th Cir. 1971); United States v. Standing Soldier, 538 F.2d 196, 204 (8th Cir. 1976).

The credibility of a child witness is covered in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.13 (5th ed. 2000). Seventh Circuit Federal Jury Instructions: Criminal § 3.23 (1999) and Ninth Cir. Crim. Jury Instr. 4.15 (formerly 4.14 (1997)) recommend that no "child witness" instruction be given. This Committee joins in those comments.

The testimony of police officers is addressed in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966).

Instructions on the credibility of rape victims are usually rejected. United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979); United States v. Vik, 655 F.2d 878 (8th Cir. 1981); United States v. Bear Ribs, 722 F.2d 420 (8th Cir. 1983).

Factors to be taken into account in determining whether a special instruction is warranted with respect to a drug user are discussed in United States v. Johnson, 848 F.2d 904, 905-06 (8th Cir. 1988). Addict-Informers are covered in Committee Comments Instruction 4.06, infra.

Impeachment evidence is also related to credibility. Instructions 2.16-.19, supra, cover this concept in the form of limiting instructions. Impeachment by prior inconsistent statement is covered in this instruction. See United States v. Rogers, 549 F.2d 490 (8th Cir. 1976). See also impeachment instructions in Ninth Cir. Crim. Jury Instr. 4.6-4.8 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.07, 15.09 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal §§ 1.10-1.13 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 6.1-6.7 (1997).

Whether a party is entitled to a more specific instruction on witness bias is also generally left to the discretion of the trial court. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000); United States v. Ashford, 530 F.2d 792, 799 (8th Cir. 1976).

(For 2008 version see below).

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2008 Version

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

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

[In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.]

[You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.]²

1. With respect to the use of prior inconsistent statements (second paragraph of this instruction), FRE 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. Note, however, that such a limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. FRE 801(d)(1)(A).

2. To be given only if the defendant has testified. See Taylor v. United States, 390 F.2d 278, 282 (8th Cir. 1968).

See Ninth Cir. Crim. Jury Instr. 3.7 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.01, 15.02 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.08 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 5 (1997); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 785 (1-16).

See also Instruction 1.05, supra.

The form of a credibility instruction is within the discretion of the trial court. Clark v. United States, 391 F.2d 57, 60 (8th Cir. 1968); United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979). In Clark, the court held that the following instruction given by the trial court correctly set out the factors to be considered by the jury in determining the credibility of the witnesses:

You are instructed that you are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his or her demeanor on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling toward the parties to the trial, the probability or improbability of his or her statements as well as all the other facts and circumstances given in evidence.

391 F.2d at 60. In Merrival, the court held that the following general credibility instruction provided protection for the accused:

You, as jurors, are the sole judges of the truthfulness of the witnesses and the weight their testimony deserves.

You should carefully study all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's ability to observe the matters as to which he or she has testified and whether each witness is either supported or contradicted by other evidence in the case.

600 F.2d at 720 n.2.

The general credibility instruction given in United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975) covers other details:

The jurors are the sole judges of the weight and credibility of the testimony and of the value to be given to each and any witness who has testified in the case. In reaching a conclusion as to what weight and value you ought to give to the testimony of any witness who has testified in the case, you are warranted in taking into consideration the interest of the witness in the result of the trial; take into consideration his or her relation to any party in interest; his or her demeanor upon the witness stand; his or her manner of testifying; his or her tendency to speak truthfully or falsely, as you may believe, the probability or improbability of the testimony given; his or her situation to see and observe; and his or her apparent capacity and willingness to truthfully and accurately tell you what he or she saw and observed; and if you believe any witness testified falsely as to any material issue in this case, then you must reject that which you believe to be false, and you may reject the whole or any part of the testimony of such witness. (Emphasis omitted.)

The instruction in the text is basically a paraphrase of Ninth Cir. Crim. Jury Instr. 3.7 (1997) and former 1 Edward J. Devitt, et al., Federal Jury Practice and Instructions: Civil and Criminal § 17.01 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000)), as approved in United States v. Hastings, 577 F.2d at 42. However any factors set out in the Phillips, Clark, or Merrival instructions, may be inserted when relevant to the case.

A general instruction on the credibility of witnesses is in most cases sufficient. Whether a more specific credibility instruction is required with respect to any particular witness or class of witnesses is generally within the discretion of the trial court. Some of the most common situations are covered in Instructions 4.04 (Testimony under Grant of Immunity or Plea Bargain), 4.05 (Testimony of Accomplice), 4.06 (Testimony of Informer), and 4.08 (Eye Witness Testimony), infra.

As to the credibility of a "perjurer," see United States v. Koonce, 485 F.2d 374, 378 n.8 (8th Cir. 1973); United States v. Spector, 793 F.2d 932, 939 (8th Cir. 1986); United States v. Reda, 765 F.2d 715, 718-19 (8th Cir. 1985); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.10 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.03 (1999); Ninth Cir. Crim. Jury Instr. 4.8 (1997). Both Koonce and Reda supported the trial court's rejection of a "falsus in uno, falsus in omnibus" instruction.

Some instructions specifically address the credibility of a defendant in terms of his interest in the case. See, e.g., 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.12 (5th ed. 2000). This circuit has repeatedly criticized the use of such an instruction because it has the effect of singling out the defendant in the jury charge. United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir. 1976). See also Taylor v. United States, 390 F.2d 278, 282 (8th Cir. 1968); United States v. Brown, 453 F.2d 101, 107 (8th Cir. 1971); United States v. Standing Soldier, 538 F.2d 196, 204 (8th Cir. 1976).

The credibility of a child witness is covered in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.13 (5th ed. 2000). Seventh Circuit Federal Jury Instructions: Criminal § 3.23 (1999) and Ninth Cir. Crim. Jury Instr. 4.15 (formerly 4.14 (1997)) recommend that no "child witness" instruction be given. This Committee joins in those comments.

The testimony of police officers is addressed in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966).

Instructions on the credibility of rape victims are usually rejected. United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979); United States v. Vik, 655 F.2d 878 (8th Cir. 1981); United States v. Bear Ribs, 722 F.2d 420 (8th Cir. 1983).

Factors to be taken into account in determining whether a special instruction is warranted with respect to a drug user are discussed in United States v. Johnson, 848 F.2d 904, 905-06 (8th Cir. 1988). Addict-Informers are covered in Committee Comments Instruction 4.06, infra.

Impeachment evidence is also related to credibility. Instructions 2.16-.19, supra, cover this concept in the form of limiting instructions. Impeachment by prior inconsistent statement is covered in this instruction. See United States v. Rogers, 549 F.2d 490 (8th Cir. 1976). See also impeachment instructions in Ninth Cir. Crim. Jury Instr. 4.6-4.8 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.07, 15.09 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal §§ 1.10-1.13 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 6.1-6.7 (1997).

Whether a party is entitled to a more specific instruction on witness bias is also generally left to the discretion of the trial court. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000); United States v. Ashford, 530 F.2d 792, 799 (8th Cir. 1976).

(For 2006 version see below)

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

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

[In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.]

[You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.]2

1. With respect to the use of prior inconsistent statements (second paragraph of this instruction), FRE 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. Note, however, that such a limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. FRE 801(d)(1)(A).

2. To be given only if the defendant has testified. See Taylor v. United States, 390 F.2d 278, 282 (8th Cir. 1968).

See Ninth Cir. Crim. Jury Instr. 3.7 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.01, 15.02 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.08 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 5 (1997); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 785 (1-16).

See also Instruction 1.05, supra.

The form of a credibility instruction is within the discretion of the trial court. Clark v. United States, 391 F.2d 57, 60 (8th Cir. 1968); United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979). In Clark, the court held that the following instruction given by the trial court correctly set out the factors to be considered by the jury in determining the credibility of the witnesses:

You are instructed that you are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his or her demeanor on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling toward the parties to the trial, the probability or improbability of his or her statements as well as all the other facts and circumstances given in evidence.

391 F.2d at 60. In Merrival, the court held that the following general credibility instruction provided protection for the accused:

You, as jurors, are the sole judges of the truthfulness of the witnesses and the weight their testimony deserves.

You should carefully study all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's ability to observe the matters as to which he or she has testified and whether each witness is either supported or contradicted by other evidence in the case.

600 F.2d at 720 n.2.

The general credibility instruction given in United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975) covers other details:

The jurors are the sole judges of the weight and credibility of the testimony and of the value to be given to each and any witness who has testified in the case. In reaching a conclusion as to what weight and value you ought to give to the testimony of any witness who has testified in the case, you are warranted in taking into consideration the interest of the witness in the result of the trial; take into consideration his or her relation to any party in interest; his or her demeanor upon the witness stand; his or her manner of testifying; his or her tendency to speak truthfully or falsely, as you may believe, the probability or improbability of the testimony given; his or her situation to see and observe; and his or her apparent capacity and willingness to truthfully and accurately tell you what he or she saw and observed; and if you believe any witness testified falsely as to any material issue in this case, then you must reject that which you believe to be false, and you may reject the whole or any part of the testimony of such witness. (Emphasis omitted.)

The instruction in the text is basically a paraphrase of Ninth Cir. Crim. Jury Instr. 3.7 (1997) and former 1 Edward J. Devitt, et al., Federal Jury Practice and Instructions: Civil and Criminal § 17.01 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000)), as approved in United States v. Hastings, 577 F.2d at 42. However any factors set out in the Phillips, Clark, or Merrival instructions, may be inserted when relevant to the case.

A general instruction on the credibility of witnesses is in most cases sufficient. Whether a more specific credibility instruction is required with respect to any particular witness or class of witnesses is generally within the discretion of the trial court. Some of the most common situations are covered in Instructions 4.04 (Testimony under Grant of Immunity or Plea Bargain), 4.05 (Testimony of Accomplice), 4.06 (Testimony of Informer), and 4.08 (Eye Witness Testimony), infra.

As to the credibility of a "perjurer," see United States v. Koonce, 485 F.2d 374, 378 n.8 (8th Cir. 1973); United States v. Spector, 793 F.2d 932, 939 (8th Cir. 1986); United States v. Reda, 765 F.2d 715, 718-19 (8th Cir. 1985); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.10 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.03 (1999); Ninth Cir. Crim. Jury Instr. 4.8 (1997). Both Koonce and Reda supported the trial court's rejection of a "falsus in uno, falsus in omnibus" instruction.

Some instructions specifically address the credibility of a defendant in terms of his interest in the case. See, e.g., 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.12 (5th ed. 2000). This circuit has repeatedly criticized the use of such an instruction because it has the effect of singling out the defendant in the jury charge. United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir. 1976). See also Taylor v. United States, 390 F.2d 278, 282 (8th Cir. 1968); United States v. Brown, 453 F.2d 101, 107 (8th Cir. 1971); United States v. Standing Soldier, 538 F.2d 196, 204 (8th Cir. 1976).

The credibility of a child witness is covered in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.13 (5th ed. 2000). Seventh Circuit Federal Jury Instructions: Criminal § 3.23 (1999) and Ninth Cir. Crim. Jury Instr. 4.15 (1997) recommend that no "child witness" instruction be given. This Committee joins in those comments.

The testimony of police officers is addressed in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966).

Instructions on the credibility of rape victims are usually rejected. United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979); United States v. Vik, 655 F.2d 878 (8th Cir. 1981); United States v. Bear Ribs, 722 F.2d 420 (8th Cir. 1983).

Factors to be taken into account in determining whether a special instruction is warranted with respect to a drug user are discussed in United States v. Johnson, 848 F.2d 904, 905-06 (8th Cir. 1988). Addict-Informers are covered in Committee Comments Instruction 4.06, infra.

Impeachment evidence is also related to credibility. Instructions 2.16-.19, supra, cover this concept in the form of limiting instructions. Impeachment by prior inconsistent statement is covered in this instruction. See United States v. Rogers, 549 F.2d 490 (8th Cir. 1976). See also impeachment instructions in Ninth Cir. Crim. Jury Instr. 4.6-4.8 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.07, 15.09 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal §§ 1.10-1.13 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 6.1-6.7 (1997).

Whether a party is entitled to a more specific instruction on witness bias is also generally left to the discretion of the trial court. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.01 (5th ed. 2000); United States v. Ashford, 530 F.2d 792, 799 (8th Cir. 1976).

For 2000 version see below

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2000 Version

3.04 CREDIBILITY OF WITNESSES

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

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

[In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.]

[You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.]2

See Ninth Cir. Crim. Jury Instr. 3.7 (1997); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 15.01, 15.02 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 1.08 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 5 (1997); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 785 (1-16).

See also Instruction 1.05, supra.

The form of a credibility instruction is within the discretion of the trial court. Clark v. United States, 391 F.2d 57, 60 (8th Cir.), cert. denied, 393 U.S. 873 (1968); United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979). In Clark, the court held that the following instruction given by the trial court correctly set out the factors to be considered by the jury in determining the credibility of the witnesses:

You are instructed that you are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his or her demeanor on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling toward the parties to the trial, the probability or improbability of his or her statements as well as all the other facts and circumstances given in evidence.

391 F.2d at 60. In Merrival, the court held that the following general credibility instruction provided protection for the accused:

You, as jurors, are the sole judges of the truthfulness of the witnesses and the weight their testimony deserves.

You should carefully study all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's ability to observe the matters as to which he or she has testified and whether each witness is either supported or contradicted by other evidence in the case.

600 F.2d at 720 n.2.

The general credibility instruction given in United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975) covers other details:

The jurors are the sole judges of the weight and credibility of the testimony and of the value to be given to each and any witness who has testified in the case. In reaching a conclusion as to what weight and value you ought to give to the testimony of any witness who has testified in the case, you are warranted in taking into consideration the interest of the witness in the result of the trial; take into consideration his or her relation to any party in interest; his or her demeanor upon the witness stand; his or her manner of testifying; his or her tendency to speak truthfully or falsely, as you may believe, the probability or improbability of the testimony given; his or her situation to see and observe; and his or her apparent capacity and willingness to truthfully and accurately tell you what he or she saw and observed; and if you believe any witness testified falsely as to any material issue in this case, then you must reject that which you believe to be false, and you may reject the whole or any part of the testimony of such witness. (Emphasis omitted.)

The instruction in the text is basically a paraphrase of Ninth Cir. Crim. Jury Instr. 3.7 (1997) and former 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 17.01 (now § 15.01 (4th ed. 1992)) as approved in United States v. Hastings, 577 F.2d at 42. However any factors set out in the Phillips, Clark, or Merrival instructions, may be inserted when relevant to the case.

A general instruction on the credibility of witnesses is in most cases sufficient. Whether a more specific credibility instruction is required with respect to any particular witness or class of witnesses is generally within the discretion of the trial court. Some of the most common situations are covered in Instructions 4.04 (Testimony under Grant of Immunity or Plea Bargain), 4.05 (Testimony of Accomplice), 4.06 (Testimony of Informer), and 4.08 (Eye Witness Testimony), infra.

As to the credibility of a "perjurer," see United States v. Koonce, 485 F.2d 374, 378 n.8 (8th Cir. 1973); United States v. Spector, 793 F.2d 932, 939 (8th Cir. 1986), cert. denied, 479 U.S. 1031 (1987); United States v. Reda, 765 F.2d 715, 718-19 (8th Cir. 1985); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 17.05 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 1.03 (1999); Ninth Cir. Crim. Jury Instr. 4.8 (1997). Both Koonce and Reda supported the trial court's rejection of a "falsus in uno, falsus in omnibus" instruction.

Some instructions specifically address the credibility of a defendant in terms of his interest in the case. See, e.g., 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.12 (4th ed. 1992). This circuit has repeatedly criticized the use of such an instruction because it has the effect of singling out the defendant in the jury charge. United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir.), cert. denied, 429 U.S. 846 (1976). See also Taylor v. United States, 390 F.2d 278, 282 (8th Cir.), cert. denied, 393 U.S. 869 (1968); United States v. Brown, 453 F.2d 101, 107 (8th Cir. 1971), cert. denied, 405 U.S. 978 (1972); United States v. Standing Soldier, 538 F.2d 196, 204 (8th Cir.), cert. denied, 429 U.S. 1025 (1976).

The credibility of a child witness is covered in 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.13 (4th ed. 1992). Seventh Circuit Federal Jury Instructions: Criminal § 3.23 (1999) and Ninth Cir. Crim. Jury Instr. 4.14 (1997) recommend that no "child witness" instruction be given. This Committee joins in those comments.

The testimony of police officers is addressed in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966).

Instructions on the credibility of rape victims are usually rejected. United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979); United States v. Vik, 655 F.2d 878 (8th Cir. 1981); United States v. Bear Ribs, 722 F.2d 420 (8th Cir. 1983).

Factors to be taken into account in determining whether a special instruction is warranted with respect to a drug user are discussed in United States v. Johnson, 848 F.2d 904, 905-06 (8th Cir. 1988). Addict-Informers are covered in Committee Comments Instruction 4.06, infra.

Impeachment evidence is also related to credibility. Instructions 2.16-2.19, supra, cover this concept in the form of limiting instructions. Impeachment by prior inconsistent statement is covered in this instruction. See United States v. Rogers, 549 F.2d 490 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977). See also impeachment instructions in Ninth Cir. Crim. Jury Instr. 4.6-4.8 (1997); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 15.07, 15.09 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal §§ 1.10-1.13 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 6.1-6.7 (1997).

Whether a party is entitled to a more specific instruction on witness bias is also generally left to the discretion of the trial court. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.01 (4th ed. 1992); United States v. Ashford, 530 F.2d 792, 799 (8th Cir. 1976).

1. With respect to the use of prior inconsistent statements (second paragraph of this instruction), FRE 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. Note, however, that such a limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. FRE 801(d)(1)(A).

2. To be given only if defendant has testified. See Taylor v. United States, 390 F.2d 278, 282 (8th Cir.), cert. denied, 393 U.S. 869 (1968).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

12.2.2 Charging Document Is Not Evidence

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The indictment in this case charges that the defendant committed the crime of (insert offense).¹ The defendant has pleaded not guilty to that charge.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

[There is no burden upon a defendant to prove that [he] [she] is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends that the court require the defense to make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778 (3-4,6), 857(1).

An instruction on the "presumption of innocence" is one means of protecting the accused's constitutional right to be judged solely on the basis of the proof adduced at trial. Taylor v. Kentucky, 436 U.S. 478, 486 (1978). Failure to give such an instruction may be evaluated as a due process violation. Kentucky v. Whorton, 441 U.S. 786, 790 (per curiam), reh'g denied, 444 U.S. 887 (1979).

Federal Judicial Center, Pattern Criminal Jury Instructions § 9 (1988), Seventh Circuit Federal Jury Instructions: Criminal § 2.03 (1999) and Ninth Cir. Crim. Jury Instr. 3.2 (formerly 3.2.1 (1997))  all contain more abbreviated versions of the presumption of innocence. In United States v. Hollister, 746 F.2d 420, 424 (8th Cir. 1984), however, the Eighth Circuit criticized former Fifth Circuit Basic Instruction 3A as "too abbreviated" and urged the continued use of former 1 Edward J. Devitt, et al., Federal Jury Practice and Instructions: Civil and Criminal § 11.13 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 13.04 (5th ed. 2000)), holding: "The clarity of the Devitt & Blackmar instruction renders it preferable to other preference instructions." Hollister further cited Taylor, which held that former § 11.14 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000)) "appears to have been well suited to forestalling the jury's consideration of extraneous matters * * *." Taylor v. Kentucky, 436 U.S. at 488 n.16.

(For 2008 version see below).

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2008 Version

The indictment in this case charges that the defendant committed the crime of (insert offense).¹ The defendant has pleaded not guilty to that charge.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

[There is no burden upon a defendant to prove that [he] [she] is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends that the court require the defense to make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778 (3-4,6), 857(1).

An instruction on the "presumption of innocence" is one means of protecting the accused's constitutional right to be judged solely on the basis of the proof adduced at trial. Taylor v. Kentucky, 436 U.S. 478, 486 (1978). Failure to give such an instruction may be evaluated as a due process violation. Kentucky v. Whorton, 441 U.S. 786, 790 (per curiam), reh'g denied, 444 U.S. 887 (1979).

Federal Judicial Center, Pattern Criminal Jury Instructions § 9 (1988), Seventh Circuit Federal Jury Instructions: Criminal § 2.03 (1999) and Ninth Cir. Crim. Jury Instr. 3.2 (formerly 3.2.1 (1997)) all contain more abbreviated versions of the presumption of innocence. In United States v. Hollister, 746 F.2d 420, 424 (8th Cir. 1984), however, the Eighth Circuit criticized former Fifth Circuit Basic Instruction 3A as "too abbreviated" and urged the continued use of former 1 Edward J. Devitt,et al., Federal Jury Practice and Instructions: Civil and Criminal § 11.13 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 13.04 (5th ed. 2000)), holding: "The clarity of the Devitt & Blackmar instruction renders it preferable to other preference instructions." Hollister further cited Taylor, which held that former § 11.14 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000)) "appears to have been well suited to forestalling the jury's consideration of extraneous matters * * *." 463 U.S. at 488 n.16.

(For 2006 version see below)

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The indictment in this case charges that the defendant committed the crime of (insert offense).1 The defendant has pleaded not guilty to that charge.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

[There is no burden upon a defendant to prove that [he] [she] is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends that the court require the defense to make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778 (3-4,6), 857(1).

An instruction on the "presumption of innocence" is one means of protecting the accused's constitutional right to be judged solely on the basis of the proof adduced at trial. Taylor v. Kentucky, 436 U.S. 478, 486 (1978). Failure to give such an instruction may be evaluated as a due process violation. Kentucky v. Whorton, 441 U.S. 786, 790 (per curiam), reh'g denied, 444 U.S. 887 (1979).

Federal Judicial Center, Pattern Criminal Jury Instructions § 9 (1988), Seventh Circuit Federal Jury Instructions: Criminal § 2.03 (1999) and Ninth Cir. Crim. Jury Instr. 3.2 (1997) all contain more abbreviated versions of the presumption of innocence. In United States v. Hollister, 746 F.2d 420, 424 (8th Cir. 1984), however, the Eighth Circuit criticized former Fifth Circuit Basic Instruction 3A as "too abbreviated" and urged the continued use of former 1 Edward J. Devitt,et al., Federal Jury Practice and Instructions: Civil and Criminal § 11.13 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 13.04 (5th ed. 2000)), holding: "The clarity of the Devitt & Blackmar instruction renders it preferable to other preference instructions." Hollister further cited Taylor, which held that former § 11.14 (now 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000)) "appears to have been well suited to forestalling the jury's consideration of extraneous matters * * *." 463 U.S. at 488 n.16.

For 2000 version see below

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2000 Version

3.05 DESCRIPTION OF CHARGE; INDICTMENT NOT EVIDENCE; PRESUMPTION OF INNOCENCE; BURDEN OF PROOF (SINGLE DEFENDANT, SINGLE COUNT)

The indictment in this case charges that the defendant committed the crime of (insert offense).1 The defendant has pleaded not guilty to that charge.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.

[There is no burden upon a defendant to prove that [he] [she] is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 13.01-13.04, 12.10 (4th ed. 1992). See generally West Key # "Criminal Law" 308, 317, 778 (3-4,6), 857(1).

An instruction on the "presumption of innocence" is one means of protecting the accused's constitutional right to be judged solely on the basis of the proof adduced at trial. Taylor v. Kentucky, 436 U.S. 478, 486 (1978). Failure to give such an instruction may be evaluated as a due process violation. Kentucky v. Whorton, 441 U.S. 786, 790 (per curiam), reh'g denied, 444 U.S. 887 (1979).

Federal Judicial Center, Pattern Criminal Jury Instructions § 9 (1988), Seventh Circuit Federal Jury Instructions: Criminal § 2.03 (1999) and Ninth Cir. Crim. Jury Instr. 3.2.1 (1997) all contain more abbreviated versions of the presumption of innocence. In United States v. Hollister, 746 F.2d 420, 424 (8th Cir. 1984), however, the Eighth Circuit criticized former Fifth Circuit Basic Instruction 3A as "too abbreviated" and urged the continued use of former § 11.13 (now 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.08 (4th ed. 1992)), holding: "The clarity of the Devitt & Blackmar instruction renders it preferable to other preference instructions." Hollister further cited Taylor, which held that former § 11.14 (now 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.10 (4th ed. 1992)) "appears to have been well suited to forestalling the jury's consideration of extraneous matters * * *." 463 U.S. at 488 n.16. The present instruction incorporates 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.10 (4th ed. 1992) on the presumption of innocence.

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if defendant so requests. The Committee recommends that the court require the defense to make this request on the record.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

12.2.2 Charging Document Is Not Evidence

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The indictment in this case charges the defendant with (insert number) different crimes. Under Count[s] I [___], the indictment charges that the defendant committed the crime of (describe offense).¹

[Under Count[s] __ [___], the indictment charges that the defendant committed the crime of (describe offense). (Continue as necessary.)] The defendant has pleaded not guilty to each of those charges.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that each count charges a separate crime. You must consider each count separately, and return a separate verdict for each count.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4,6), 857(1).

See also Committee Comments, Instruction 3.05, supra.

When the counts are satisfactorily distinguished in the jury charge, it will be presumed that the jury followed the instructions and thus did not confuse the evidence pertinent to the individual counts. This instruction will also help avoid prejudicial error resulting from misjoinder of offenses. See FRCP 14; Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Brim, 630 F.2d 1307, 1310 (8th Cir. 1980); United States v. Wedelstedt, 589 F.2d 339, 343 n.4 (8th Cir. 1978); United States v. Jines, 536 F.2d 1255, 1257 (8th Cir. 1976); Fisher v. United States, 324 F.2d 775, 781 (8th Cir. 1964).

(For 2008 version see below).

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2008 Version

The indictment in this case charges the defendant with (insert number) different crimes. Under Count[s] I [___], the indictment charges that the defendant committed the crime of (describe offense).¹

[Under Count[s] __ [___], the indictment charges that the defendant committed the crime of (describe offense). (Continue as necessary.)] The defendant has pleaded not guilty to each of those charges.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that each count charges a separate crime. You must consider each count separately, and return a separate verdict for each count.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4,6), 857(1).

See also Committee Comments, Instruction 3.05, supra.

When the counts are satisfactorily distinguished in the jury charge, it will be presumed that the jury followed the instructions and thus did not confuse the evidence pertinent to the individual counts. This instruction will also help avoid prejudicial error resulting from misjoinder of offenses. See FRCP 14; Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Brim, 630 F.2d 1307, 1310 (8th Cir. 1980); United States v. Wedelstedt, 589 F.2d 339, 343 n.4 (8th Cir. 1978); United States v. Jines, 536 F.2d 1255, 1257 (8th Cir. 1976); Fisher v. United States, 324 F.2d 775, 781 (8th Cir. 1964).

(For 2006 version see below)

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The indictment in this case charges the defendant with (insert number) different crimes. Under Count[s] I [___], the indictment charges that the defendant committed the crime of (describe offense).1

[Under Count[s] __ [___], the indictment charges that the defendant committed the crime of (describe offense). (Continue as necessary.)] The defendant has pleaded not guilty to each of those charges.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that each count charges a separate crime. You must consider each count separately, and return a separate verdict for each count.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4,6), 857(1).

See also Committee Comments, Instruction 3.05, supra.

When the counts are satisfactorily distinguished in the jury charge, it will be presumed that the jury followed the instructions and thus did not confuse the evidence pertinent to the individual counts. This instruction will also help avoid prejudicial error resulting from misjoinder of offenses. See FRCP  14; Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Brim, 630 F.2d 1307, 1310 (8th Cir. 1980); United States v. Wedelstedt, 589 F.2d 339, 343 n.4 (8th Cir. 1978); United States v. Jines, 536 F.2d 1255, 1257 (8th Cir. 1976); Fisher v. United States, 324 F.2d 775, 781 (8th Cir. 1964).

For 2000 version see below

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2000 Version

3.06 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE; PRESUMPTION OF INNOCENCE; BURDEN OF PROOF (SINGLE DEFENDANT, MULTIPLE COUNTS)

The indictment in this case charges the defendant with (insert number) different crimes.

Under Count[s] I [___], the indictment charges that the defendant committed the crime of (describe offense).1

[Under Count[s] __ [___], the indictment charges that the defendant committed the crime of (describe offense). (Continue as necessary.)] The defendant has pleaded not guilty to each of those charges.

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.

Keep in mind that each count charges a separate crime. You must consider each count separately, and return a separate verdict for each count.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 13.01-13.04, 12.10, 12.12 (4th ed. 1992). See generally West Key # "Criminal Law" 308, 317, 778(3-4,6), 857(1).

See also Committee Comments, Instruction 3.05, supra.

When the counts are satisfactorily distinguished in the jury charge, it will be presumed that the jury followed the instructions and thus did not confuse the evidence pertinent to the individual counts. This instruction will also help avoid prejudicial error resulting from misjoinder of offenses. See FRCP 14; Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Brim, 630 F.2d 1307, 1310 (8th Cir. 1980), cert. denied, 452 U.S. 966 (1981); United States v. Wedelstedt, 589 F.2d 339, 343 n.4 (8th Cir. 1978), cert. denied, 442 U.S. 916 (1979); United States v. Jines, 536 F.2d 1255, 1257 (8th Cir.), cert. denied, 429 U.S. 942 (1976); Fisher v. United States, 324 F.2d 775, 781 (8th Cir.), cert. denied, 377 U.S. 999 (1964).

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if defendant so requests. The Committee recommends the court require the defense make this request on the record.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

3.07  
DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;
PRESUMPTION OF INNOCENCE; BURDEN OF PROOF
(MULTIPLE DEFENDANTS, SINGLE COUNT)

FORECITE National™ Materials Related To This Instruction:

12.2.2 Charging Document Is Not Evidence

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The indictment in this case charges that the defendants committed the crime of (describe offense).¹

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

(For 2008 version see below).

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2008 Version

The indictment in this case charges that the defendants committed the crime of (describe offense).¹

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

(For 2006 version see below)

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

The indictment in this case charges that the defendants committed the crime of (describe offense).1

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

For 2000 version see below

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2000 Version

The indictment in this case charges that the defendants committed the crime of (describe offense).1

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (4th ed. 1992). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if defendant so requests. The Committee recommends the court require the defense make this request on the record.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

12.2.2 Charging Document Is Not Evidence

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The charges in this case are as follows:

Under Count[s] I [___], the indictment charges that defendant[s] (insert name[s]) committed the crime of (describe offense).¹

[Under Count[s] __ [___], the indictment charges that defendant[s] (insert name[s]) committed the crime of (describe offense). (Continue as necessary). Each defendant has pleaded not guilty to each crime with which [he] [she] is charged.

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. So the presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant. Also keep in mind that you must consider, separately, each crime charged against each individual defendant, and must return a separate verdict for each of those crimes charged.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

In United States v. Nabors, 762 F.2d 642, 652 (8th Cir. 1985), the court held that the following instruction sufficiently informed the jury that it was deciding the guilt or innocence of two separate individuals on two separate counts:

Each offense, and the evidence pertaining to it, should be considered separately. The fact that you may find some or all of the accused guilty or not guilty of one of the offenses charged should not control your verdict as to any other offense charged against any of the defendants.

(For 2008 version see below).

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

2008 Version

The charges in this case are as follows:

Under Count[s] I [___], the indictment charges that defendant[s] (insert name[s]) committed the crime of (describe offense).¹

[Under Count[s] __ [___], the indictment charges that defendant[s] (insert name[s]) committed the crime of (describe offense). (Continue as necessary). Each defendant has pleaded not guilty to each crime with which [he] [she] is charged.

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. So the presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant. Also keep in mind that you must consider, separately, each crime charged against each individual defendant, and must return a separate verdict for each of those crimes charged.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]²

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

In United States v. Nabors, 762 F.2d 642, 652 (8th Cir. 1985), the Court held that the following instruction sufficiently informed the jury that it was deciding the guilt or innocence of two separate individuals on two separate counts:

Each offense, and the evidence pertaining to it, should be considered separately. The fact that you may find some or all of the accused guilty or not guilty of one of the offenses charged should not control your verdict as to any other offense charged against any of the defendants.

(For 2006 version see below)

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

The charges in this case are as follows:

Under Count[s] I [___], the indictment charges that defendant[s] (insert name[s]) committed the crime of (describe offense).1

[Under Count[s] __ [___], the indictment charges that defendant[s] (insert name[s]) committed the crime of (describe offense). (Continue as necessary). Each defendant has pleaded not guilty to each crime with which [he] [she] is charged.

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. So the presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant. Also keep in mind that you must consider, separately, each crime charged against each individual defendant, and must return a separate verdict for each of those crimes charged.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if the defendant so requests. The Committee recommends the court require the defense make this request on the record.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed. 2000). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

In United States v. Nabors, 762 F.2d 642, 652 (8th Cir. 1985), the Court held that the following instruction sufficiently informed the jury that it was deciding the guilt or innocence of two separate individuals on two separate counts:

Each offense, and the evidence pertaining to it, should be considered separately. The fact that you may find some or all of the accused guilty or not guilty of one of the offenses charged should not control your verdict as to any other offense charged against any of the defendants.

For 2000 version see below

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

2000 Version

3.08 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE; PRESUMPTION OF INNOCENCE; BURDEN OF PROOF (MULTIPLE DEFENDANTS, MULTIPLE COUNTS)

The charges in this case are as follows:

Under Count[s] I [___], the indictment charges that defendant[s] (insert names) committed the crime of (describe offense).1

[Under Count[s] __ [___], the indictment charges that defendant[s] (insert names) committed the crime of (describe offense). (Continue as necessary). Each defendant has pleaded not guilty to each crime with which [he] [she] is charged.

As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, each defendant is presumed to be innocent. Thus each defendant, even though charged, begins the trial with no evidence against [him] [her]. So the presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.

Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant. Also keep in mind that you must consider, separately, each crime charged against each individual defendant, and must return a separate verdict for each of those crimes charged.

[There is no burden upon a defendant to prove that he or she is innocent.] [Accordingly, the fact that [a] defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.]2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (4th ed. 1992). See generally West Key # "Criminal Law" 308, 317, 778(3-4, 6), 857(1).

See also Committee Comments, Instructions 3.05 and 3.06, supra.

In United States v. Nabors, 762 F.2d 642, 652 (8th Cir. 1985), cert. denied, 475 U.S. 1015 (1986) the Court held that the following instruction sufficiently informed the jury that it was deciding the guilt or innocence of two separate individuals on two separate counts:

Each offense, and the evidence pertaining to it, should be considered separately. The fact that you may find some or all of the accused guilty or not guilty of one of the offenses charged should not control your verdict as to any other offense charged against any of the defendants.

1. The description of the offense should be the same as that utilized with Instruction 1.01.

2. The sentences in this paragraph should be given only if defendant so requests. The Committee recommends the court require the defense make this request on the record.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The crime of _________¹, as charged in [Count ___ of] the indictment, has ____ elements, which are:

One, __________________________________________________________________;

Two, _______________________________________________________________; and

Etc., __________________________________________________________________.

If all of [these] [the]² elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant) [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]];³ then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].⁴

1. The description of the offense should be the same as that utilized with Instructions 1.01 and 3.05, 3.06, 3.07 or 3.08. There may be occasions, however, when the trial judge prefers not to repeat the description of the charge. In that event, the opening clause of this instruction should be modified to read as follows:

The crime charged in [Count ___ of] the indictment has ____ elements, which are:

2. Use "the" when the instruction does not immediately follow the enumeration of the elements, such as in a multiple-offense case.

3. If the evidence in the case is sufficient to support submission of one of the so-called "affirmative defenses" other than insanity, coercion or withdrawal from conspiracy, this or similar language should be used in this instruction, United States v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988), and the appropriate affirmative defense instruction from Section 9 should be given separately. Other defenses which the government has the burden of disproving can be handled in a similar fashion as those set out in Section 9.

The Norton case addressed the 1986 edition of these instructions in which the affirmative defense was placed in the elements section of this instruction. The Committee believes that it is consistent with Norton to place the affirmative defense in the verdict directing paragraph of this instruction as has been done here because an affirmative defense is not technically a negative element. However, Norton does allow the affirmative defense to be placed in the instruction as a negative element.

If the defense of insanity or coercion is in issue, the last paragraph of this instruction 3.09 should be changed to read as follows:

If all of these elements have been proved beyond a reasonable doubt, you must find the defendant guilty, unless you also find that the defendant was [insane] [coerced] at the time of the crime, [as defined in Instruction No. ___] in which case [he] [she] must be found not guilty by reason of [insanity] [coercion]. The defendant has the burden of proving, [by clear and convincing evidence, that [he] [she] was insane] [by the greater weight of the evidence, that [he] [she] was coerced] at the time of the crime. The Government does not have the burden of proving that the defendant was [sane] [not coerced].

Instruction 9.03, defining insanity, or 9.02, defining coercion, should immediately follow.  

4. In many of the elements instructions set out in Section 6 of this Manual, it is recommended that certain evidentiary matter be inserted to make the instruction more specific to the case. For example, instead of the word "property," it is suggested that the property be specifically described. This procedure works best in cases in which not more than one violation of any statute is charged. However, in multi-count cases charging more than one violation of the same statute, a separate elements instruction for each count would be required to accomplish such specificity. Where the court wishes to avoid giving a series of almost identical elements instructions pertaining to the same statutory violation, various alternatives can be used.

One suggestion would be to generalize the elements instruction, i.e., use "property" instead of a specific description of the property, and make the one instruction applicable to all counts charging violations of the same statute. See Appendix A. In cases in which there are more factual variables between counts, the element which changes may be restated for each count and the elements which do not change given only once. See Appendix B.

In districts or courts in which the practice requires a separate elements instruction for each count, if the written instructions are to be sent to the jury room, and if the written elements instruction (this instruction 3.09) for each count is written out in full, the Committee believes it is safe if the trial judge, in reading the instructions to the jury, reads only the first such instruction in full and thereafter, as to the same kind of offense in subsequent counts, explains that the elements are the same as those previously read, except with respect to the element which is different, then reading in full only that element.

In multi-count or multi-defendant cases the jury should be instructed to consider each count or each defendant separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 12.12 and 12.13 (5th ed. 2000).

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000). See generally West Key # "Criminal Law," 772, 811(3), 814(5), 815(4), 822(6), 823(4), 825(2), 829(3), 834(3).

The Committee has prepared an elements instruction for many of the most commonly encountered offenses. For other offenses not covered by this effort, the Committee suggests a review of the statute and controlling case law to determine the elements of an offense, followed by a careful effort to state those elements in language which is as simple and direct as possible.

This instruction 3.09 is designed for use in any case, regardless of the number of defendants or counts in the indictment. The bracketed phrases set forth the language alternatives necessary where the case involves multiple defendants, or multiple counts, or both. Without any of the bracketed phrases, the instruction serves for a single defendant, single count case. The same thing is true of the elements instructions in Section 6. If the indictment involves two or more different statutory violations, a separate elements instruction will be necessary for each violation. If two or more counts charge violations of the same statute, the elements instruction can be handled in various ways. See Note 4, supra.

Appendix A

The crime of interstate transportation of stolen securities, as charged in Counts II-IX of the indictment, has four elements, which are:

One, the security, which in each of Counts II-IX is alleged to be a separate John Doe Company bond, was stolen;

Two, the security then had a value of $5,000.00 or more;

Three, after the security was stolen, the defendant caused it to be moved across a state line; and

Four, at the time he caused the security to be moved across a state line, the defendant knew that it had been stolen.

If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.12 (5th ed. 2000).)

Appendix B

The crime of distribution of cocaine, as charged in Counts II, III, and IV of the indictment, has three elements, which are:

One, that as to Count II, on or about March 2, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

that as to Count III, on or about March 22, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

that as to Count IV, on or about April 11, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

Two, that such distribution was being carried out in furtherance of the conspiracy alleged in Count I; and

Three, that such distribution was at a time when the defendant was a member of the conspiracy alleged in Count I.

If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count and each defendant separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.13 (5th ed. 2000).)

(For 2008 version see below).

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

2008 Version

The crime of _________¹, as charged in [Count ___ of] the indictment, has ____ elements, which are:

One, __________________________________________________________________;

Two, _______________________________________________________________; and

Etc., __________________________________________________________________.

If all of [these] [the]² elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant) [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]];³ then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].⁴

1. The description of the offense should be the same as that utilized with Instructions 1.01 and 3.05, 3.06, 3.07 or 3.08. There may be occasions, however, when the trial judge prefers not to repeat the description of the charge. In that event, the opening clause of this instruction should be modified to read as follows:

The crime charged in [Count ___ of] the indictment has ____ elements, which are:

2. Use "the" when the instruction does not immediately follow the enumeration of the elements, such as in a multiple-offense case.

3. If the evidence in the case is sufficient to support submission of one of the so-called "affirmative defenses" other than insanity, coercion or withdrawal from conspiracy, this or similar language should be used in this instruction, United States v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988), and the appropriate affirmative defense instruction from Section 9 should be given separately. Other defenses which the government has the burden of disproving can be handled in a similar fashion as those set out in Section 9.

The Norton case addressed the 1986 edition of these instructions in which the affirmative defense was placed in the elements section of this instruction. The Committee believes that it is consistent with Norton to place the affirmative defense in the verdict directing paragraph of this instruction as has been done here since an affirmative defense is not technically a negative element. However, Norton does allow the affirmative defense to be placed in the instruction as a negative element.

If the defense of insanity or coercion is in issue, the last paragraph of this instruction 3.09 should be changed to read as follows:

If all of these elements have been proved beyond a reasonable doubt, you must find the defendant guilty, unless you also find that the defendant was [insane] [coerced] at the time of the crime, [as defined in Instruction No. ___] in which case [he] [she] must be found not guilty by reason of [insanity] [coercion]. The defendant has the burden of proving, [by clear and convincing evidence, that [he] [she] was insane] [by the greater weight of the evidence, that [he] [she] was coerced] at the time of the crime. The Government does not have the burden of proving that the defendant was [sane] [not coerced].

Instruction 9.03, defining insanity, [or 9.02, defining coercion,] should immediately follow.

4. In many of the elements instructions set out in Section 6 of this Manual it is recommended that certain evidentiary matter be inserted to make the instruction more specific to the case. For example, instead of the word "property," it is suggested that the property be specifically described. This procedure works best in cases in which not more than one violation of any statute is charged. However, in multi count cases charging more than one violation of the same statute, a separate elements instruction for each count would be required to accomplish such specificity. Where the court wishes to avoid giving a series of almost identical elements instructions pertaining to the same statutory violation, various alternatives can be used.

One suggestion would be to generalize the elements instruction, i.e., use "property" instead of a specific description of the property, and make the one instruction applicable to all counts charging violations of the same statute. See Appendix A. In cases in which there are more factual variables between counts, the element which changes may be restated for each count and the elements which do not change given only once. See Appendix B.

In districts or courts in which the practice requires a separate elements instruction for each count, if the written instructions are to be sent to the jury room, and if the written elements instruction (this instruction 3.09) for each count is written out in full, the Committee believes it is safe if the trial judge, in reading the instructions to the jury, reads only the first such instruction in full and thereafter, as to the same kind of offense in subsequent counts, explains that the elements are the same as those previously read, except with respect to the element which is different, then reading in full only that element.

In multi-count or multi-defendant cases the jury should be instructed to consider each count or each defendant separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 12.12 and 12.13 (5th ed. 2000).

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000). See generally West Key # "Criminal Law," 772, 811(3), 814(5), 815(4), 822(6), 823(4), 825(2), 829(3), 834(3).

The Committee has prepared an elements instruction for many of the most commonly encountered offenses. For other offenses not covered by this effort, the Committee suggests a review of the statute and controlling case law to determine the elements of an offense, followed by a careful effort to state those elements in language which is as simple and direct as possible.

This instruction 3.09 is designed for use in any case, regardless of the number of defendants or counts in the indictment. The bracketed phrases set forth the language alternatives necessary where the case involves multiple defendants, or multiple counts, or both. Without any of the bracketed phrases, the instruction serves for a single defendant, single count case. The same thing is true of the elements instructions in Section 6. If the indictment involves two or more different statutory violations, a separate elements instruction will be necessary for each violation. If two or more counts charge violations of the same statute, the elements instruction can be handled in various ways. See Note 4, supra.

Appendix A

The crime of interstate transportation of stolen securities, as charged in Counts II-IX of the indictment, has four elements, which are:

One, the security, which in each of Counts II-IX is alleged to be a separate John Doe Company bond, was stolen;

Two, the security then had a value of $5,000.00 or more;

Three, after the security was stolen, the defendant caused it to be moved across a state line; and

Four, at the time he caused the security to be moved across a state line, the defendant knew that it had been stolen.

If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.12 (5th ed. 2000).)

Appendix B

The crime of distribution of cocaine, as charged in Counts II, III, and IV of the indictment, has three elements, which are:

One, that as to Count II, on or about March 2, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine; that as to Count III, on or about March 22, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine; that as to Count IV, on or about April 11, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

Two, that such distribution was being carried out in furtherance of the conspiracy alleged in Count I; and

Three, that such distribution was at a time when the defendant was a member of the conspiracy alleged in Count I.

If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count and each defendant separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.13 (5th ed. 2000).)

(For 2006 version see below)

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

The crime of _________1, as charged in [Count ___ of] the indictment, has ____ elements, which are:

One, __________________________________________________________________;

Two, _______________________________________________________________; and

Etc., __________________________________________________________________.

If all of [these] [the]2 elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant) [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]];3 then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].4

1. The description of the offense should be the same as that utilized with Instructions 1.01 and 3.05, 3.06, 3.07 or 3.08. There may be occasions, however, when the trial judge prefers not to repeat the description of the charge. In that event, the opening clause of this instruction should be modified to read as follows:

The crime charged in [Count ___ of] the indictment has ____ elements, which are:

2. Use "the" when the instruction does not immediately follow the enumeration of the elements, such as in a multiple-offense case.

3. If the evidence in the case is sufficient to support submission of one of the so-called "affirmative defenses" other than insanity, coercion or withdrawal from conspiracy, this or similar language should be used in this instruction, United States v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988), and the appropriate affirmative defense instruction from Section 9 should be given separately. Other defenses which the government has the burden of disproving can be handled in a similar fashion as those set out in Section 9.

The Norton case addressed the 1986 edition of these instructions in which the affirmative defense was placed in the elements section of this instruction. The Committee believes that it is consistent with Norton to place the affirmative defense in the verdict directing paragraph of this instruction as has been done here since an affirmative defense is not technically a negative element. However, Norton does allow the affirmative defense to be placed in the instruction as a negative element.

If the defense of insanity or coercion is in issue, the last paragraph of this instruction 3.09 should be changed to read as follows:

If all of these elements have been proved beyond a reasonable doubt, you must find the defendant guilty, unless you also find that the defendant was [insane] [coerced] at the time of the crime, [as defined in Instruction No. ___] in which case [he] [she] must be found not guilty by reason of [insanity] [coercion]. The defendant has the burden of proving, [by clear and convincing evidence, that [he] [she] was insane] [by the greater weight of the evidence, that [he] [she] was coerced] at the time of the crime. The Government does not have the burden of proving that the defendant was [sane] [not coerced].

Instruction 9.03, defining insanity, [or 9.02, defining coercion,] should immediately follow.

4. In many of the elements instructions set out in Section 6 of this Manual it is recommended that certain evidentiary matter be inserted to make the instruction more specific to the case. For example, instead of the word "property," it is suggested that the property be specifically described. This procedure works best in cases in which not more than one violation of any statute is charged. However, in multi count cases charging more than one violation of the same statute, a separate elements instruction for each count would be required to accomplish such specificity. Where the court wishes to avoid giving a series of almost identical elements instructions pertaining to the same statutory violation, various alternatives can be used.

One suggestion would be to generalize the elements instruction, i.e., use "property" instead of a specific description of the property, and make the one instruction applicable to all counts charging violations of the same statute. See Appendix A. In cases in which there are more factual variables between counts, the element which changes may be restated for each count and the elements which do not change given only once. See Appendix B.

In districts or courts in which the practice requires a separate elements instruction for each count, if the written instructions are to be sent to the jury room, and if the written elements instruction (this instruction 3.09) for each count is written out in full, the Committee believes it is safe if the trial judge, in reading the instructions to the jury, reads only the first such instruction in full and thereafter, as to the same kind of offense in subsequent counts, explains that the elements are the same as those previously read, except with respect to the element which is different, then reading in full only that element.

In multi-count or multi-defendant cases the jury should be instructed to consider each count or each defendant separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 12.12 and 12.13 (5th ed. 2000).

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000). See generally West Key # "Criminal Law," 772, 811(3), 814(5), 815(4), 822(6), 823(4), 825(2), 829(3), 834(3).

The Committee has prepared an elements instruction for many of the most commonly encountered offenses. For other offenses not covered by this effort, the Committee suggests a review of the statute and controlling case law to determine the elements of an offense, followed by a careful effort to state those elements in language which is as simple and direct as possible.

This instruction 3.09 is designed for use in any case, regardless of the number of defendants or counts in the indictment. The bracketed phrases set forth the language alternatives necessary where the case involves multiple defendants, or multiple counts, or both. Without any of the bracketed phrases, the instruction serves for a single defendant, single count case. The same thing is true of the elements instructions in Section 6. If the indictment involves two or more different statutory violations, a separate elements instruction will be necessary for each violation. If two or more counts charge violations of the same statute, the elements instruction can be handled in various ways. See Note 4, supra.

Appendix A

The crime of interstate transportation of stolen securities, as charged in Counts II-IX of the indictment, has four elements, which are:

One, the security, which in each of Counts II-IX is alleged to be a separate John Doe Company bond, was stolen;

Two, the security then had a value of $5,000.00 or more;

Three, after the security was stolen, the defendant caused it to be moved across a state line; and

Four, at the time he caused the security to be moved across a state line, the defendant knew that it had been stolen.

If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.12 (5th ed. 2000).)

Appendix B

The crime of distribution of cocaine, as charged in Counts II, III, and IV of the indictment, has three elements, which are:

One, that as to Count II, on or about March 2, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

that as to Count III, on or about March 22, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

that as to Count IV, on or about April 11, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

Two, that such distribution was being carried out in furtherance of the conspiracy alleged in Count I; and

Three, that such distribution was at a time when the defendant was a member of the conspiracy alleged in Count I.

If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count and each defendant separately. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.13 (5th ed. 2000).)

For 2000 version see below

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

2000 Version

3.09 ELEMENTS OF OFFENSE; BURDEN OF PROOF

The crime of _________1, as charged in [Count ___ of] the indictment, has ____ essential elements, which are:

One, __________________________________________________________________; Two, _______________________________________________________________; and

Etc., __________________________________________________________________. If all of [these] [the]2 essential elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant) [defendant (name)] was not [entrapped] [coerced] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]];3 then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].4

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.10 (4th ed. 1992). See generally West Key # "Criminal Law," 772, 811(3), 814(5), 815(4), 822(6), 823(4), 825(2), 829(3), 834(3).

The Committee has prepared an essential elements instruction for many of the most commonly encountered offenses. For other offenses not covered by this effort, the Committee suggests a review of the statute and controlling case law to determine the essential elements of an offense, followed by a careful effort to state those elements in language which is as simple and direct as possible.

This instruction 3.09 is designed for use in any case, regardless of the number of defendants or counts in the indictment. The bracketed phrases set forth the language alternatives necessary where the case involves multiple defendants, or multiple counts, or both. Without any of the bracketed phrases, the instruction serves for a single defendant, single count case. The same thing is true of the elements instructions in Section 6. If the indictment involves two or more different statutory violations, a separate elements instruction will be necessary for each violation. If two or more counts charge violations of the same statute, the elements instruction can be handled in various ways. See Note 4, infra.

1. The description of the offense should be the same as that utilized with Instructions 1.01 and 3.05, 3.06, 3.07 or 3.08. There may be occasions, however, when the trial judge prefers not to repeat the description of the charge. In that event, the opening clause of this instruction should be modified to read as follows:

The crime charged in [Count ___ of] the indictment has ____ essential elements, which are:

2. Use "the" when the instruction does not immediately follow the enumeration of the elements, such as in a multiple offense case.

3. If the evidence in the case is sufficient to support submission of one of the so-called "affirmative defenses" other than insanity or withdrawal from conspiracy, this or similar language should be used in this instruction, United States v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988), and the appropriate affirmative defense instruction from Section 9 should be given separately. Other defenses which the government has the burden of disproving can be handled in a similar fashion as those set out in Section 9.

The Norton case addressed the 1986 edition of these instructions in which the affirmative defense was placed in the elements section of this instruction. The Committee believes that it is consistent with Norton to place the affirmative defense in the verdict directing paragraph of this instruction as has been done here since an affirmative defense is not technically a negative element. However, Norton does allow the affirmative defense to be placed in the instruction as a negative element.

If the defense of insanity is in issue, the last paragraph of this instruction 3.09 should be changed to read as follows:

If all of these essential elements have been proved beyond a reasonable doubt, you must find defendant guilty, unless you also find that defendant was insane at the time of the crime, [as defined in Instruction No. ___] in which case [he] [she] must be found not guilty by reason of insanity. The defendant has the burden of proving, by clear and convincing evidence, that [he] [she] was insane at the time of the crime. The Government does not have the burden of proving that the defendant was sane.

Instruction 9.03, defining insanity, should immediately follow.

4. In many of the elements instructions set out in Section 6 of this Manual it is recommended that certain evidentiary matter be inserted to make the instruction more specific to the case. For example, instead of the word "property," it is suggested that the property be specifically described. This procedure works best in cases in which not more than one violation of any statute is charged. However, in multi count cases charging more than one violation of the same statute, a separate elements instruction for each count would be required to accomplish such specificity. Where the court wishes to avoid giving a series of almost identical elements instructions pertaining to the same statutory violation, various alternatives can be used.

One suggestion would be to generalize the elements instruction, i.e., use "property" instead of a specific description of the property, and make the one instruction applicable to all counts charging violations of the same statute. See Appendix A. In cases in which there are more factual variables between counts, the element which changes may be restated for each count and the elements which do not change given only once. See Appendix B.

In districts or courts in which the practice requires a separate elements instruction for each count, if the written instructions are to be sent to the jury room, and if the written elements instruction (this instruction 3.09) for each count is written out in full, the Committee believes it is safe if the trial judge, in reading the instructions to the jury, reads only the first such instruction in full and thereafter, as to the same kind of offense in subsequent counts, explains that the essential elements are the same as those previously read, except with respect to the element which is different, then reading in full only that element.

In multi count or multi defendant cases the jury should be instructed to consider each count or each defendant separately. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 12.12 and 12.13 (4th ed. 1992).

Appendix A

The crime of interstate transportation of stolen securities, as charged in Counts II-IX of the indictment, has four essential elements, which are:

One, the security, which in each of Counts II-IX is alleged to be a separate John Doe Company bond, was stolen;

Two, the security then had a value of $5,000.00 or more;

Three, after the security was stolen, the defendant caused it to be moved across a state line; and

Four, at the time he caused the security to be moved across a state line, the defendant knew that it had been stolen.

If all of [these] [the] essential elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [coerced] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count separately. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.12 (4th ed. 1992).)

Appendix B

The crime of distribution of cocaine, as charged in Counts II, III, and IV of the indictment, has three essential elements, which are:

One, that as to Count II, on or about March 2, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

that as to Count III, on or about March 22, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

that as to Count IV, on or about April 11, 1983, in the District of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute cocaine;

Two, that such distribution was being carried out in furtherance of the conspiracy alleged in Count I; and

Three, that such distribution was at a time when the defendant was a member of the conspiracy alleged in Count I.

If all of [these] [the] essential elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant] [defendant (name)] was not [entrapped] [coerced] [acting in self defense], [acting in defense of ________] [as defined in Instruction No. ____]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count _____]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ____].

(Insert an instruction advising the jury to consider each count and each defendant separately. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.13 (4th ed. 1992).)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

LESSER OFFENSES (VOLUME 12)

If your verdict under Instruction No. ___ [as to any particular defendant charged] [under Count ___] is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict [as to that defendant] on Instruction No. ___, you should record that decision on the verdict forms and go on to consider whether [that] defendant is guilty of the crime of (describe lesser-included offense) under this instruction. The crime of (describe lesser-included offense), [a lesser-included offense of the crime charged in [Count ___ of] the indictment,]¹ has _____ elements, which are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

For you to find [a] defendant guilty of this crime [, a lesser-included offense,] [under Count ___], the Government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find the [that particular] defendant not guilty of this crime [,a lesser-included offense,] [under Count ___].²

1. The bracketed language describing the offense as a lesser-included offense is optional.

2. If a lesser-included offense is submitted to the jury using this instruction, which allows a guilty verdict on the lesser-included offense, and if the jury finds the defendant not guilty of the greater offense or is unable to reach a verdict on the greater offense, the verdict form should be modified to reflect that option.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.05 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 48 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 2.02 (1999); Ninth Cir. Crim. Jury Instr. 3.15 (formerly 3.13 (1997)).

See generally FRCP 31(c); West Key # "Criminal Law," 763(9), 795, 814(20), 815(13), 822(17), 824(3), 829(3).

In United States v. Hanson, 618 F.2d 1261, 1265 (8th Cir. 1980), the Eighth Circuit adopted the Second Circuit's holding in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978), that

[n]either an instruction which requires a unanimous verdict of not guilty of greater offense before allowing the jury to move to the lesser, nor an instruction that it is sufficient to move to the lesser if the jury cannot reach agreement on a conviction for the greater offense, is wrong as a matter of law, and the court may give the one that it prefers if the defendant expresses no choice; if he does, court should give the form of instruction which defendant seasonably elects.

See also United States v. Roy, 843 F.2d 305, 309 (8th Cir.1988).

The Committee recommends the use of an instruction such as this one, which presents both alternatives.

A five-part test for determining whether a lesser-included offense instruction should be given as been enunciated frequently. See, e.g., United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982). In United States v. Roy, 843 F.2d at 310, the court set out a four-part test which does not include the "mutuality" factor of the five-part test.

The Supreme Court has settled a conflict among the circuits and adopted an "elements" test to determine when one offense is necessarily included in another.

Under this test, one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).

Schmuck v. United States, 489 U.S. 705, 715 (1989).

In a simple case with only one defendant, the lesser-included offense instruction could start with the phrase, "[i]f you do not find the defendant guilty of ___ under Instruction No. ___, then you must consider whether he is guilty of ____ under this instruction." The instruction should then continue with an elements instruction and burden of proof instruction for the lesser-included offense.

(For 2008 version see below).

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

2008 Version

If your verdict under Instruction No. ___ [as to any particular defendant charged] [under Count ___] is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict [as to that defendant] on Instruction No. ___, you should record that decision on the verdict forms and go on to consider whether [that] defendant is guilty of the crime of (describe lesser included offense) under this instruction. The crime of (describe lesser included offense), [a lesser included offense of the crime charged in [Count ___ of] the indictment,]¹ has _____ elements, which are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

For you to find [a] defendant guilty of this crime [, a lesser included offense,] [under Count ___], the Government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find the [that particular] defendant not guilty of this crime [,a lesser included offense,] [under Count ___].²

1. The bracketed language describing the offense as a lesser included offense is optional.

2. If a lesser included offense is submitted to the jury using this instruction, which allows a guilty verdict on the lesser included offense, and if the jury finds the defendant not guilty of the greater offense or is unable to reach a verdict on the greater offense, the verdict form should be modified to reflect that option.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.05 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 48 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 2.02 (1999); Ninth Cir. Crim. Jury Instr. 3.15 (formerly 3.13 (1997)).

See generally FRCP 31(c); West Key # "Criminal Law," 763(9), 795, 814(20), 815(13), 822(17), 824(3), 829(3).

In Catches v. United States, 582 F.2d 453 (8th Cir. 1978), the Eighth Circuit adopted the Second Circuit's holding in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978), that is was not "wrong as a matter of law" to require a unanimous verdict of not guilty on the greater offense before the jury could consider a lesser included offense, but also approved an alternative instruction permitting the jury to consider the lesser included offense "if after all reasonable efforts it is unable to reach a verdict on the greater." The Eighth Circuit concurred with the rule that "if the defendant seasonable expresses a preference for [this] alternative instruction, the district court should give that form of instruction." This approach is followed in United States v. Hanson, 618 F.2d 1261, 1265 (8th Cir. 1980) and United States v. Roy, 843 F.2d 305, 309 (8th Cir.1988).

The Committee recommends the use of an instruction such as this one, which presents both alternatives.

A five-part test for determining whether a lesser included instruction should be given as been enunciated frequently. See, e.g., United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982). In United States v. Roy, 843 F.2d at 310, the court set out a four-part test which does not include the "mutuality" factor of the five-part test.

The Supreme Court has settled a conflict among the circuits and adopted an "elements" test to determine when one offense is necessarily included in another.

Under this test, one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).

Schmuck v. United States, 489 U.S. 705, 715 (1989).

In a simple case with only one defendant, the lesser included offense instruction could start with the phrase, "[i]f you do not find the defendant guilty of ___ under Instruction No. ___, then you must consider whether he is guilty of ____ under this instruction." The instruction should then continue with an elements instruction and burden of proof instruction for the lesser included offense.

(For 2006 version see below)

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

If your verdict under Instruction No. ___ [as to any particular defendant charged] [under Count ___] is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict [as to that defendant] on Instruction No. ___, you should record that decision on the verdict forms and go on to consider whether [that] defendant is guilty of the crime of (describe lesser included offense) under this instruction. The crime of (describe lesser included offense), [a lesser included offense of the crime charged in [Count ___ of] the indictment,]1 has _____ elements, which are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

For you to find [a] defendant guilty of this crime [, a lesser included offense,] [under Count ___], the Government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find the [that particular] defendant not guilty of this crime [,a lesser included offense,] [under Count ___].2

1. The bracketed language describing the offense as a lesser included offense is optional.

2. If a lesser included offense is submitted to the jury using this instruction, which allows a guilty verdict on the lesser included offense, and if the jury finds the defendant not guilty of the greater offense or is unable to reach a verdict on the greater offense, the verdict form should be modified to reflect that option.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.05 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 48 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 2.02 (1999); Ninth Cir. Crim. Jury Instr. 3.15 (1997).

See generally FRCP  31(c); West Key # "Criminal Law," 763(9), 795, 814(20), 815(13), 822(17), 824(3), 829(3).

In Catches v. United States, 582 F.2d 453 (8th Cir. 1978), the Eighth Circuit adopted the Second Circuit's holding in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978), that is was not "wrong as a matter of law" to require a unanimous verdict of not guilty on the greater offense before the jury could consider a lesser included offense, but also approved an alternative instruction permitting the jury to consider the lesser included offense "if after all reasonable efforts it is unable to reach a verdict on the greater." The Eighth Circuit concurred with the rule that "if the defendant seasonable expresses a preference for [this] alternative instruction, the district court should give that form of instruction." This approach is followed in United States v. Hanson, 618 F.2d 1261, 1265 (8th Cir. 1980) and United States v. Roy, 843 F.2d 305, 309 (8th Cir.1988).

The Committee recommends the use of an instruction such as this one, which presents both alternatives.

A five-part test for determining whether a lesser included instruction should be given as been enunciated frequently. See, e.g., United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982). In United States v. Roy, 843 F.2d at 310, the court set out a four-part test which does not include the "mutuality" factor of the five-part test.

The Supreme Court has settled a conflict among the circuits and adopted an "elements" test to determine when one offense is necessarily included in another.

Under this test, one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).

Schmuck v. United States, 489 U.S. 705, 715 (1989).

In a simple case with only one defendant, the lesser included offense instruction could start with the phrase, "[i]f you do not find the defendant guilty of ___ under Instruction No. ___, then you must consider whether he is guilty of ____ under this instruction." The instruction should then continue with an elements instruction and burden of proof instruction for the lesser included offense.

For 2000 version see below

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

2000 Version

3.10 LESSER INCLUDED OFFENSE

If your verdict under Instruction No. ___ [as to any particular defendant charged] [under Count ___] is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict [as to that defendant] on Instruction No. ___, you should record that decision on the verdict forms and go on to consider whether [that] defendant is guilty of the crime of (describe lesser included offense) under this instruction. The crime of (describe lesser included offense), [a lesser included offense of the crime charged in [Count ___ of] the indictment,]1 has _____ essential elements, which are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and Etc., __________________________________________________________________.

For you to find [a] defendant guilty of this crime [, a lesser included offense,] [under Count ___], the Government must prove all of these essential elements beyond a reasonable doubt [as to that defendant]; otherwise you must find the [that particular] defendant not guilty of this crime [,a lesser included offense,] [under Count ___].2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.05 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 48 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 2.02 (1999); Ninth Cir. Crim. Jury Instr. 3.13 (1997).

See generally FRCP 31(c); West Key # "Criminal Law," 763(9), 795, 814(20), 815(13), 822(17), 824(3), 829(3).

In Catches v. United States, 582 F.2d 453 (8th Cir. 1978), the Eighth Circuit adopted the Second Circuit's holding in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995 (1978), that is was not "wrong as a matter of law" to require a unanimous verdict of not guilty on the greater offense before the jury could consider a lesser included offense, but also approved an alternative instruction permitting the jury to consider the lesser included offense "if after all reasonable efforts it is unable to reach a verdict on the greater." The Eighth Circuit concurred with the rule that "if the defendant seasonable expresses a preference for [this] alternative instruction, the district court should give that form of instruction." This approach is followed in United States v. Hanson, 618 F.2d 1261, 1265 (8th Cir.), cert. denied, 449 U.S. 854 (1980) and United States v. Roy, 843 F.2d 305, 309 (8th Cir.), cert. denied, 487 U.S. 1222 (1988).

The Committee recommends the use of an instruction such as this one, which presents both alternatives.

A five-part test for determining whether a lesser included instruction should be given as been enunciated frequently. See, e.g., United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982). In United States v. Roy, 843 F.2d at 310, the court set out a four-part test which does not include the "mutuality" factor of the five-part test.

The Supreme Court has settled a conflict among the circuits and adopted an "elements" test to determine when one offense is necessarily included in another.

Under this test, one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).

Schmuck v. United States, 489 U.S. 705, 715 (1989).

In a simple case with only one defendant, the lesser included offense instruction could start with the phrase, "[i]f you do not find the defendant guilty of ___ under Instruction No. ___, then you must consider whether he is guilty of ____ under this instruction." The instruction should then continue with an essential elements instruction and burden of proof instruction for the lesser included offense.

1. The bracketed language describing the offense as a lesser included offense is optional.

2. If a lesser included offense is submitted to the jury using this instruction, which allows a guilty verdict on the lesser included offense, and if the jury finds defendant not guilty of the greater offense or is unable to reach a verdict on the greater offense, the verdict form should be modified to reflect that option.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

270.4 Reasonable Doubt Standard: General Principles

270.5 Reasonable Doubt Standard: Specific Words And Phrases

A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

See United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988); see also Fifth Circuit Pattern Jury Instructions: Criminal § 1.05 (1997); Ninth Cir. Crim. Jury Instr. 3.5 (formerly 3.3 (1997)); Eleventh Circuit Pattern Jury Instruction: Criminal (Basic) § 3 (1997). See generally West Key # "Criminal Law" 789 (1-18), 822(16), 823(15), 824(12), 829(18), 834(5).

The instruction must be couched in terms of hesitation to act. United States v. Conley, 523 F.2d at 655; United States v. Jensen, 561 F.2d 1297, 1300-01 (8th Cir. 1977), and cases cited therein.

Some jurisdictions define "beyond a reasonable doubt" as "firmly convinced." See Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988).

The instruction approved in Conley is as follows:

It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense--the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it in another way, a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.

523 F.2d at 655.

The language of the Conley instruction has been "explicitly approved" by this circuit "without reservation." United States v. Wilkerson, 691 F.2d 425, 428 (8th Cir. 1982); United States v. Harris, 974 F.2d 84, 85 (8th Cir. 1992); United States v. Knight, 547 F.2d 75, 77 (8th Cir. 1976); United States v. Robertson, 588 F.2d 575, 579 (8th Cir. 1978).

It is the court's duty to instruct on the meaning of reasonable doubt. Friedman v. United States, 381 F.2d 155 (8th Cir. 1967). A constitutionally inadequate reasonable doubt instruction is not harmless error. Sullivan v. Louisiana, 508 U.S. 275 (1993).

This instruction does not use the phrases, "moral evidence" or "moral certainty," which raised some serious questions in Sandoval v. California, 511 U.S. 1 (1994), or other offensive language, such as requiring a "grave uncertainty," which was found objectionable in Cage v. Louisiana, 498 U.S. 39, 40 (1990). It also does not follow the proposal of Justice Ginsburg in her concurring opinion which endorses the Federal Judicial Center's wording. Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988) provides as follows:

As I have said many times, the Government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the Government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

The Supreme Court reiterated in Sandoval that the Constitution does not mandate any particular form of words, and that the "hesitate to act" formulation is permissible.

This instruction has been regularly approved in the Eighth Circuit, see United States v. Simms, 18 F.3d 588 (8th Cir. 1994); United States v. West, 28 F.3d 748 (8th Cir. 1994), and in the opinion of this Committee, is more helpful to the average juror than is the Federal Judicial Center instruction.

(For 2008 version see below).

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

2008 Version

A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

See United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988); see also Fifth Circuit Pattern Jury Instructions: Criminal § 1.05 (1997); Ninth Cir. Crim. Jury Instr. 3.5 (formerly 3.3 (1997)); Eleventh Circuit Pattern Jury Instruction: Criminal (Basic) § 3 (1997). See generally West Key # "Criminal Law" 789 (1-18), 822(16), 823(15), 824(12), 829(18), 834(5).

The instruction must be couched in terms of hesitation to act. United States v. Conley, 523 F.2d at 655; United States v. Jensen, 561 F.2d 1297, 1300-01 (8th Cir. 1977), and cases cited therein.

Some jurisdictions define "beyond a reasonable doubt" as "firmly convinced." See Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988).

The instruction approved in Conley is as follows:

It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense--the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it in another way, a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.

523 F.2d at 655.

The language of the Conley instruction has been "explicitly approved" by this circuit "without reservation." United States v. Wilkerson, 691 F.2d 425, 428 (8th Cir. 1982); United States v. Harris, 974 F.2d 84, 85 (8th Cir. 1992); United States v. Knight, 547 F.2d 75, 77 (8th Cir. 1976); United States v. Robertson, 588 F.2d 575, 579 (8th Cir. 1978).

It is the court's duty to instruct on the meaning of reasonable doubt. Friedman v. United States, 381 F.2d 155 (8th Cir. 1967). A constitutionally inadequate reasonable doubt instruction is not harmless error. Sullivan v. Louisiana, 508 U.S. 275 (1993).

This instruction does not use the phrases, "moral evidence" or "moral certainty," which raised some serious questions in Sandoval v. California, 511 U.S. 1 (1994), nor other offensive language, such as requiring a "grave uncertainty," which was found objectionable in Cage v. Louisiana, 498 U.S. 39, 40 (1990). It also does not follow the proposal of Justice Ginsburg in her concurring opinion which endorses the Federal Judicial Center's wording. Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988) provides as follows:

As I have said many times, the Government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the Government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

The Supreme Court reiterated in Sandoval that the Constitution does not mandate any particular form of words, and that the "hesitate to act" formulation is permissible.

This instruction has been regularly approved in the Eighth Circuit, see United States v. Simms, 18 F.3d 588 (8th Cir. 1994); United States v. West, 28 F.3d 748 (8th Cir. 1994), and in the opinion of this Committee, is more helpful to the average juror than is the Federal Judicial Center instruction.

(For 2006 version see below)

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

A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

See United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.10 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988); see also Fifth Circuit Pattern Jury Instructions: Criminal § 1.05 (1997); Ninth Cir. Crim. Jury Instr. 3.5 (1997); Eleventh Circuit Pattern Jury Instruction: Criminal (Basic) § 3 (1997). See generally West Key # "Criminal Law" 789 (1-18), 822(16), 823(15), 824(12), 829(18), 834(5).

The instruction must be couched in terms of hesitation to act. United States v. Conley, 523 F.2d at 655; United States v. Jensen, 561 F.2d 1297, 1300-01 (8th Cir. 1977), and cases cited therein.

Some jurisdictions define "beyond a reasonable doubt" as "firmly convinced." See Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988).

The instruction approved in Conley is as follows:

It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense--the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it in another way, a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.

523 F.2d at 655.

The language of the Conley instruction has been "explicitly approved" by this circuit "without reservation." United States v. Wilkerson, 691 F.2d 425, 428 (8th Cir. 1982); United States v. Harris, 974 F.2d 84, 85 (8th Cir. 1992); United States v. Knight, 547 F.2d 75, 77 (8th Cir. 1976); United States v. Robertson, 588 F.2d 575, 579 (8th Cir. 1978).

It is the court's duty to instruct on the meaning of reasonable doubt. Friedman v. United States, 381 F.2d 155 (8th Cir. 1967). A constitutionally inadequate reasonable doubt instruction is not harmless error. Sullivan v. Louisiana, 508 U.S. 275 (1993).

This instruction does not use the phrases, "moral evidence" or "moral certainty," which raised some serious questions in Sandoval v. California, 511 U.S. 1 (1994), nor other offensive language, such as requiring a "grave uncertainty," which was found objectionable in Cage v. Louisiana, 498 U.S. 39, 40 (1990). It also does not follow the proposal of Justice Ginsburg in her concurring opinion which endorses the Federal Judicial Center's wording. Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988) provides as follows:

As I have said many times, the Government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the Government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

The Supreme Court reiterated in Sandoval that the Constitution does not mandate any particular form of words, and that the "hesitate to act" formulation is permissible.

This instruction has been regularly approved in the Eighth Circuit, see United States v. Simms, 18 F.3d 588 (8th Cir. 1994); United States v. West, 28 F.3d 748 (8th Cir. 1994), and in the opinion of this Committee, is more helpful to the average juror than is the Federal Judicial Center instruction.

For 2000 version see below

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

2000 Version

3.11 REASONABLE DOUBT

A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

See United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975), cert. denied, 424 U.S. 920 (1976); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 11.14-11.15 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988); see also Fifth Circuit Pattern Jury Instructions: Criminal § 1.05 (1997); Ninth Cir. Crim. Jury Instr. 3.3 (1997); Eleventh Circuit Pattern Jury Instruction: Criminal (Basic) § 3 (1997). See generally West Key # "Criminal Law" 789 (1-18), 822(16), 823(15), 824(12), 829(18), 834(5).

The instruction must be couched in terms of hesitation to act. United States v. Conley, 523 F.2d at 655; United States v. Jensen, 561 F.2d 1297, 1300-01 (8th Cir. 1977), and cases cited therein.

Some jurisdictions define "beyond a reasonable doubt" as "firmly convinced." See Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988).

The instruction approved in Conley is as follows:

It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense-- the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it in another way, a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.

523 F.2d at 655.

The language of the Conley instruction has been "explicitly approved" by this circuit "without reservation." United States v. Wilkerson, 691 F.2d 425, 428 (8th Cir. 1982); United States v. Harris, 974 F.2d 84, 85 (8th Cir. 1992); United States v. Knight, 547 F.2d 75, 77 (8th Cir. 1976); United States v. Robertson, 588 F.2d 575, 579 (8th Cir. 1978), cert. denied, 441 U.S. 946 (1979).

It is the court's duty to instruct on the meaning of reasonable doubt. Friedman v. United States, 381 F.2d 155 (8th Cir. 1967). A constitutionally inadequate reasonable doubt instruction is not harmless error. Sullivan v. Louisiana, 508 U.S. 275 (1993).

This instruction does not use the phrases, "moral evidence" or "moral certainty," which raised some serious questions in Sandoval v. California, 511 U.S. 1, 114 S. Ct. 1239 (1994), nor other offensive language, such as requiring a "grave uncertainty," which was found objectionable in Cage v. Louisiana, 498 U.S. 39, 40 (1990). It also does not follow the proposal of Justice Ginsburg in her concurring opinion which endorses the Federal Judicial Center's wording. Federal Judicial Center, Pattern Criminal Jury Instructions § 21 (1988) provides as follows:

As I have said many times, the Government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the Government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

The Supreme Court reiterated in Sandoval that the Constitution does not mandate any particular form of words, and that the "hesitate to act" formulation is permissible.

This instruction has been regularly approved in the Eighth Circuit, see United States v. Simms, 18 F.3d 588 (8th Cir. 1994); United States v. West, 28 F.3d 748 (8th Cir. 1994), and in the opinion of this Committee, is more helpful to the average juror than is the Federal Judicial Center instruction.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 277: Deliberations: Foreperson

Chapter 278: Duty Of Jury To Deliberate

Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict

Chapter 283: Communication With Jury

Chapter 287: Verdict

In conducting your deliberations and returning your verdict, there are certain rules you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict - whether guilty or not guilty - must be unanimous.

Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

Third, if the defendant is found guilty, the sentence to be imposed is my responsibility. You may not consider punishment in any way in deciding whether the Government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.

Fifth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict whether guilty or not guilty must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.¹

Finally, the verdict form is simply the written notice of the decision that you reach in this case. [The form reads: (read form)]. You will take this form to the jury room, and when each of you has agreed on the verdict[s], your foreperson will fill in the form, sign and date it, and advise the marshal or bailiff that you are ready to return to the courtroom.

[If more than one form was furnished, you will bring the unused forms in with you.]

1. The trial judge may give a fair summary of the evidence as long as the comments do not relieve the jury of its duty to find that each element of the charged offense is satisfied. Judges may, in appropriate cases, focus the jury on the primary disputed issues, but caution should be exercised in doing so. See United States v. Neumann, 887 F.2d 880 (8th Cir. en banc 1989).

As to the subject covered by the "First" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.1-7.8 (1997).

As to the subject covered by the "Second" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

The Eighth Circuit has indicated that if a hammer instruction is to be given, it is preferable that it be included in the final instructions given before the jurors begin their deliberations. Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982); United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989). Accordingly, the Committee recommends that the matter covered by this "Second" point always be included as a part of the original final instructions.

In this circuit, a defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, reaffirming United States v. Skillman, 442 F.2d 542 (8th Cir. 1971).

As to when and in what circumstances a supplemental instruction may be appropriate, see Instruction 10.02 infra.

As to the subject covered by the "Third" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.3 (1997).

As to the subject covered by the "Fourth" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.05 (1999); Ninth Cir. Crim. Jury Instr. 7.5 (1997).

As 7.27.2 (1997).

As to the subject covered by the "Final" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.4 (1997).

(For 2008 version see below).

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

2008 Version

In conducting your deliberations and returning your verdict, there are certain rules you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict - whether guilty or not guilty - must be unanimous.

Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

Third, if the defendant is found guilty, the sentence to be imposed is my responsibility. You may not consider punishment in any way in deciding whether the Government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.

Fifth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict whether guilty or not guilty must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.¹

Finally, the verdict form is simply the written notice of the decision that you reach in this case. [The form reads: (read form)]. You will take this form to the jury room, and when each of you has agreed on the verdict[s], your foreperson will fill in the form, sign and date it, and advise the marshal or bailiff that you are ready to return to the courtroom.

[If more than one form was furnished, you will bring the unused forms in with you.]

1. The trial judge may give a fair summary of the evidence as long as the comments do not relieve the jury of its duty to find that each element of the charged offense is satisfied. Judges may, in appropriate cases, focus the jury on the primary disputed issues, but caution should be exercised in doing so. See United States v. Neumann, 887 F.2d 880 (8th Cir. en banc 1989).

As to the subject covered by the "First" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.1-7.8 (1997).

As to the subject covered by the "Second" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

The Eighth Circuit has indicated that if a hammer instruction is to be given, it is preferable that it be included in the final instructions given before the jurors begin their deliberations. Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982); United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989). Accordingly, the Committee recommends that the matter covered by this "Second" point always be included as a part of the original final instructions.

In this circuit, a defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, reaffirming United States v. Skillman, 442 F.2d 542 (8th Cir. 1971).

As to when and in what circumstances a supplemental instruction may be appropriate, see Instruction 10.02 infra.

As to the subject covered by the "Third" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.3 (1997).

As to the subject covered by the "Fourth" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.05 (1999); Ninth Cir. Crim. Jury Instr. 7.5 (1997).

As to the subject covered by the "Fifth" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.2 (1997).

As to the subject covered by the "Final" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.4 (1997).

(For 2006 version see below)

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

In conducting your deliberations and returning your verdict, there are certain rules you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict - whether guilty or not guilty - must be unanimous.

Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

Third, if the defendant is found guilty, the sentence to be imposed is my responsibility. You may not consider punishment in any way in deciding whether the Government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.

Fifth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict whether guilty or not guilty must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.1

Finally, the verdict form is simply the written notice of the decision that you reach in this case. [The form reads: (read form)]. You will take this form to the jury room, and when each of you has agreed on the verdict[s], your foreperson will fill in the form, sign and date it, and advise the marshal or bailiff that you are ready to return to the courtroom.

[If more than one form was furnished, you will bring the unused forms in with you.]

1. The trial judge may give a fair summary of the evidence as long as the comments do not relieve the jury of its duty to find that each element of the charged offense is satisfied. Judges may, in appropriate cases, focus the jury on the primary disputed issues, but caution should be exercised in doing so. See United States v. Neumann, 887 F.2d 880 (8th Cir. en banc 1989).

As to the subject covered by the "First" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.1-7.8 (1997).

As to the subject covered by the "Second" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

The Eighth Circuit has indicated that if a hammer instruction is to be given, it is preferable that it be included in the final instructions given before the jurors begin their deliberations. Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982); United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989). Accordingly, the Committee recommends that the matter covered by this "Second" point always be included as a part of the original final instructions.

In this circuit, a defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, reaffirming United States v. Skillman, 442 F.2d 542 (8th Cir. 1971).

As to when and in what circumstances a supplemental instruction may be appropriate, see Instruction 10.02 infra.

As to the subject covered by the "Third" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.3 (1997).

As to the subject covered by the "Fourth" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.05 (1999); Ninth Cir. Crim. Jury Instr. 7.5 (1997).

As to the subject covered by the "Fifth" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.2 (1997).

As to the subject covered by the "Final" point, see 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.4 (1997).

For 2000 version see below

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

2000 Version

3.12 ELECTION OF FOREPERSON; DUTY TO DELIBERATE; PUNISHMENT NOT A FACTOR; COMMUNICATIONS WITH COURT; CAUTIONARY; VERDICT FORM

In conducting your deliberations and returning your verdict, there are certain rules you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict - whether guilty or not guilty - must be unanimous.

Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

Third, if the defendant is found guilty, the sentence to be imposed is my responsibility. You may not consider punishment in any way in deciding whether the Government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.

Fifth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict whether guilty or not guilty must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.1

Finally, the verdict form is simply the written notice of the decision that you reach in this case. [The form reads: (read form)]. You will take this form to the jury room, and when each of you has agreed on the verdict[s], your foreperson will fill in the form, sign and date it, and advise the marshal or bailiff that you are ready to return to the courtroom.

[If more than one form was furnished, you will bring the unused forms in with you.]

As to the subject covered by the "First" point, see 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.1-7.8 (1997).

As to the subject covered by the "Second" point, see 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

The Eighth Circuit has indicated that if a hammer instruction is to be given, it is preferable that it be included in the final instructions given before the jurors begin their deliberations. Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982); United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989). Accordingly, the Committee recommends that the matter covered by this "Second" point always be included as a part of the original final instructions.

In this circuit, a defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, reaffirming United States v. Skillman, 442 F.2d 542 (8th Cir.), cert. denied, 404 U.S. 833 (1971).

As to when and in what circumstances a supplemental instruction may be appropriate, see § 10.02 infra.

As to the subject covered by the "Third" point, see 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992); Ninth Cir. Crim. Jury Instr. 7.3 (1997).

As to the subject covered by the "Fourth" point, see 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.05 (1999); Ninth Cir. Crim. Jury Instr. 7.5 (1997).

As to the subject covered by the "Fifth" point, see 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992); Ninth Cir. Crim. Jury Instr. 7.2 (1997).

As to the subject covered by the "Final" point, see 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.4 (1997).

1. The trial judge may give a fair summary of the evidence as long as the comments do not relieve the jury of its duty to find that each element of the charged offense is satisfied. Judges may, in appropriate cases, focus the jury on the primary disputed issues, but caution should be exercised in doing so. See United States v. Neumann, 887 F.2d 880 (8th Cir. en banc 1989).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

257.11 Venue

The Government must prove by the greater weight of the evidence that the offense charged^1,2 was begun, continued or completed³ in the (insert district) District of (insert State)⁴.

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 lesser standard than proof beyond a reasonable doubt. The requirement of proof beyond a reasonable doubt applies to all other issues in the case [except insanity].

1. The actual offense as charged in the elements instruction may be named in lieu of using the phrase "offense charged." If the elements instructions do not submit all alternative means of committing the crime charged, this instruction should be revised to make it consistent with the elements instructions. See, e.g., United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

2. The instruction should be tailored to fit the individual case. In describing the event that establishes venue, the court should be careful not to assume as true something that must be proven beyond a reasonable doubt, such as the use of the mail.

3. This language applies to continuous crimes. See 18 USC 3237(a) (1988).

4. Where appropriate, the geographic area encompassed by the district may be set out in an instruction.

Venue is a question of fact for the jury and must be instructed upon if in issue. However, failure to give such an instruction is not reversible error where the evidence establishing venue is very clear or uncontradicted. United States v. Redfearn, 906 F.2d 352 (8th Cir. 1990); United States v. Netz, 758 F.2d 1308, 1312 (8th Cir. 1985); United States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985); United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

Venue need only be proved by a preponderance of the evidence. Netz, 758 F.2d at 1312.

(For 2008 version see below).

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

2008 Version

The Government must prove by the greater weight of the evidence that the offense charged^1,2 was begun, continued or completed³ in the (insert district) District of (insert State)⁴.

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 lesser standard than proof beyond a reasonable doubt. The requirement of proof beyond a reasonable doubt applies to all other issues in the case [except insanity].

1. The actual offense as charged in the elements instruction may be named in lieu of using the phrase "offense charged." If the elements instructions do not submit all alternative means of committing the crime charged, this instruction should be revised to make it consistent with the elements instructions. See, e.g., United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

2. The instruction should be tailored to fit the individual case. In describing the event that establishes venue, the court should be careful not to assume as true something that must be proven beyond a reasonable doubt, such as the use of the mail.

3. This language applies to continuous crimes. See 18 USC 3237(a) (1988).

4. Where appropriate, the geographic area encompassed by the district may be set out in an instruction.

Venue is a question of fact for the jury and must be instructed upon if in issue. However, failure to give such an instruction is not reversible error where the evidence establishing venue is very clear or uncontradicted. United States v. Redfearn, 906 F.2d 352 (8th Cir. 1990); United States v. Netz, 758 F.2d 1308, 1312 (8th Cir. 1985); United States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985); United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

Venue need only be proved by a preponderance of the evidence. Netz, 758 F.2d at 1312.

(For 2006 version see below)

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

The Government must prove by the greater weight of the evidence that the offense charged1,2 was begun, continued or completed3 in the (insert district) District of (insert State)4.

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 lesser standard than proof beyond a reasonable doubt. The requirement of proof beyond a reasonable doubt applies to all other issues in the case [except insanity].

1. The actual offense as charged in the elements instruction may be named in lieu of using the phrase "offense charged." If the elements instructions do not submit all alternative means of committing the crime charged, this instruction should be revised to make it consistent with the elements instructions. See, e.g., United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

2. The instruction should be tailored to fit the individual case. In describing the event that establishes venue, the court should be careful not to assume as true something that must be proven beyond a reasonable doubt, such as the use of the mail.

3. This language applies to continuous crimes. See 18 USC 3237(a) (1988).

4. Where appropriate, the geographic area encompassed by the district may be set out in an instruction.

Venue is a question of fact for the jury and must be instructed upon if in issue. However, failure to give such an instruction is not reversible error where the evidence establishing venue is very clear or uncontradicted. United States v. Redfearn, 906 F.2d 352 (8th Cir. 1990); United States v. Netz, 758 F.2d 1308, 1312 (8th Cir. 1985); United States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985); United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

Venue need only be proved by a preponderance of the evidence. Netz, 758 F.2d at 1312.

For 2000 version see below

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

2000 Version

3.13 VENUE

The Government must prove by the [(greater weight) (preponderance)] of the evidence that the offense charged1,2 was begun, continued or completed3 in the (insert district) District of (insert State)4.

To prove something by the [(greater weight) or (preponderance)] of the evidence is to prove that it is more likely true than not true. This is a lesser standard than proof beyond a reasonable doubt. The requirement of proof beyond a reasonable doubt applies to all other issues in the case [except insanity].

Proof of venue is an essential element of the Government's case. Where venue is not disputed, the determination of venue is for the court to make as a matter of law. United States v. Redfearn, 906 F.2d 352 (8th Cir. 1990). United States v. Netz, 758 F.2d 1308, 1312 (8th Cir. 1985). However, failure to give such an instruction is not reversible error where the evidence establishing venue is very clear or uncontradicted. United States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985), cert. denied, 476 U.S. 1104 (1986); United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

Venue need only be proved by a preponderance of the evidence. Netz, 758 F.2d at 1312.

1. The actual offense as charged in the elements instruction may be named in lieu of using the phrase "offense charged." If the elements instructions do not submit all alternative means of committing the crime charged, this instruction should be revised to make it consistent with the elements instructions. See, e.g., United States v. Shyres, 898 F.2d 647, 657-58 (8th Cir. 1990).

2. The instruction should be tailored to fit the individual case. In describing the event that establishes venue, the court should be careful not to assume as true something that must be proven beyond a reasonable doubt, such as the use of the mails.

3. This language applies to continuous crimes. See 18 USC 3237(a) (1988).

4. Where appropriate, the geographic area encompassed by the district may be set out in an instruction.