8TH CIRCUIT CHAPTER 4

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

4. Final Instructions: Consideration of Particular Kinds

        4.00     Introductory Comment
        4.01     Defendant’s Failure To Testify
        4.02     Character And Reputation, For Truthfulness, Witnesses (Including Defendant)
        4.03     Defendant's Character "Standing Alone"
        4.04     Testimony Under Grant Of Immunity Or Plea Bargain
        4.05A   Testimony Of Accomplice
        4.05B Credibility - Cooperating Witness
        4.06     Testimony Of Informer
        4.07     Common Scheme - Acts Or Declarations Of Participant
        4.08     Eyewitness Testimony
        4.09     Influencing Witness, Etc.
        4.10     Opinion Evidence - Expert Witness
        4.11     Demonstrative Summaries Not Received In Evidence
        4.12     Rule 1006 Summaries
        4.13     Specific Inferences
        4.14     Silence In The Face Of Accusation
        4.15     False Exculpatory Statements
        4.16     Missing Witness
        4.17     Direct And Circumstantial Evidence

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.00
FINAL INSTRUCTIONS: CONSIDERATION OF PARTICULAR KINDS OF EVIDENCE
Introductory Comment

This section covers jury instructions which address particular kinds of evidence. These instructions, like those in Section 2 of this Manual, are in a variety of forms. Some are limiting instructions which must be given if requested under FRE 105, others are purely discretionary with the court and often need not be given if the same concept is covered in a more general instruction. Others serve to explain to the jury how to evaluate certain kinds of evidence that may be outside its daily experience.

The instructions set out in Section 2 are not repeated here; however, any of those instructions which were given during trial should in most cases be repeated in the final charge. Moreover any Section 2 instruction which was not given during trial but is applicable and properly requested could be appropriately given during the final charge.

Certain credibility instructions are covered in this section. The Committee Comments to Instruction 3.04, supra, cover credibility in general and situations in which a specific instruction may or may not be appropriate.

The instructions in this section cover the most commonly encountered situations. Other instructions may be appropriate in particular cases.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.01 DEFENDANT'S FAILURE TO TESTIFY

FORECITE National™ Materials Related To This Instruction:

18.3 Failure Of Defendant To Testify

(See last paragraph of Instructions 3.05 - 3.08, supra.)

Committee Comments

See § 15.14 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 22 (1988); Seventh Circuit Federal Jury Instructions § 3.01 (1999); Ninth Cir. Crim. Jury Instr. 3.2.2 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 2.2 (1997). See generally West Key # "Criminal Law" 787(1), 1173.2(5).

Although it is not reversible error to give an instruction such as this without specific request, or even over the defendant's objection, Lakeside v. Oregon, 435 U.S. 333 (1978), the Committee recommends that the instruction not be given unless a defendant specifically requests it. If the instruction is requested, it must be given, Bruno v. United States, 308 U.S. 287, 292-94 (1939), even in a multi-defendant trial where another defendant objects. Id.; United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970).

The Committee recommends the practice of inquiring, on the record but outside the jury's presence, whether the defendant elects to testify and, if not, whether this instruction is desired.

(For 2008 version see below).

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2008 Version

[See last paragraph of Instructions 3.05 - 3.08, supra.]

Committee Comments

The Committee recommends the practice of inquiring, on the record but outside the jury's presence, whether the defendant elects to testify and, if not, whether this instruction is desired.

(For 2006 version see below)

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2006 Version

[See last paragraph of Nos. 3.05 - 3.08, supra.]

See § 15.14 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 22 (1988); Seventh Circuit Federal Jury Instructions § 3.01 (1999); Ninth Cir. Crim. Jury Instr. 3.3 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 2.2 (1997). See generally West Key # "Criminal Law" 787(1), 1173.2(5).

The Committee recommends the practice of inquiring, on the record but outside the jury's presence, whether the defendant elects to testify and, if not, whether this instruction is desired.

For 2000 version see below

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2000 Version

4.01 DEFENDANT'S FAILURE TO TESTIFY

[See last paragraph of Nos. 3.05 - 3.08, supra.]

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.14 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 22 (1988); Seventh Circuit Federal Jury Instructions § 3.01 (1999); Ninth Cir. Crim. Jury Instr. 3.2.2 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 2.2 (1997). See generally West Key # "Criminal Law" 787(1), 1173.2(5).

The Committee recommends the practice of inquiring, on the record but outside the jury's presence, whether the defendant elects to testify and, if not, whether this instruction is desired.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.02
CHARACTER AND REPUTATION, FOR TRUTHFULNESS, WITNESSES
(Including Defendant)¹

FORECITE National™ Materials Related To This Instruction:

251.4.3.3 CAVEAT: Impeachment Of Good Character Testimony With Evidence Of Bad Character

You have heard testimony about the character and reputation of [(name of witness)] [the defendant] [defendant (name)] for truthfulness. You may consider this evidence only in deciding whether to believe the testimony of [(name of witness)] [the defendant] [defendant (name)] and how much weight to give to it.

Notes on Use

1. This instruction should not be used where a defendant's character for truthfulness in fact represents a "pertinent character trait" within the scope of Rule 404(a)(1). United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987). In a perjury case, for example, the defendant's character for truthfulness would presumably be a "pertinent character trait," and it would be erroneous to instruct that the evidence could be used only in deciding whether to believe the defendant's testimony (assuming that he testified). The same problem may also exist with respect to certain types of fraud charges and other offenses. In any such situation, if an instruction is to be given at all (see Committee Comments, Instruction 4.03, infra, and United States v. Krapp, 815 F.2d at 1187-88), it should advise the jury that it "may consider this evidence in deciding whether or not the defendant committed the crime of __________." A similar sort of instruction, if one is desired, may be used to cover evidence of other pertinent character traits within Rule 404(a)(1) (e.g., peaceableness in a murder case, etc.), and to cover pertinent character traits of a victim within the scope of Rule 404(a)(2) (e.g., victim's aggressive character where self defense is a defense).

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.09 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal §§ 3.06, 3.12 (1999); Ninth Cir. Crim. Jury Instr. 4.7 (1997). See generally FRe 404(a)(3), 608; West Key # "Criminal Law" 785(8-13).

Once a criminal defendant has testified, his or her character for truth and veracity may be attacked, as with any other witness, in the ways provided for in 608 (and 609), FRE. It is not necessary, for that purpose, that he or she first have attempted to introduce evidence of his or her good character for truth and veracity, United States v. Walker, 313 F.2d 236, 238 (6th Cir. 1963). A defendant who testifies has no right to offer evidence of his or her character for truthfulness (as a witness) unless that character has first been attacked, either in a way provided for in Rule 608 or in some other actual way. See 3 Weinstein's Evidence ¶ 608[08] (1985). There are, however, constitutional limitations on excluding character evidence offered by a defendant. See, e.g., United States v. Watson, 669 F.2d 1374, 1381-84 (11th Cir. 1982); United States v. Davis, 639 F.2d 239 (5th Cir. 1981).

If the defendant offers evidence of a pertinent character trait of the victim, evidence of the defendant’s own character as to that trait becomes admissible. FRE 404(a)(1).

(For 2008 version see below).

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2008 Version

You have heard testimony about the character and reputation of [(name of witness)] [the defendant] [defendant (name)] for truthfulness. You may consider this evidence only in deciding whether to believe the testimony of [(name of witness)] [the defendant] [defendant (name)] and how much weight to give to it.

Notes on Use

1. This instruction should not be used where a defendant's character for truthfulness in fact represents a "pertinent character trait" within the scope of Rule 404(a)(1). United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987). In a perjury case, for example, the defendant's character for truthfulness would presumably be a "pertinent character trait," and it would be erroneous to instruct that the evidence could be used only in deciding whether to believe the defendant's testimony (assuming that he testified). The same problem may also exist with respect to certain types of fraud charges and other offenses. In any such situation, if an instruction is to be given at all (see Committee Comments, Instruction 4.03,, infra, and United States v. Krapp, 815 F.2d at 1187-88), it should advise the jury that it "may consider this evidence in deciding whether or not the defendant committed the crime of __________." A similar sort of instruction, if one is desired, may be used to cover evidence of other pertinent character traits within Rule 404(a)(1) (e.g., peaceableness in a murder case, etc.), and to cover pertinent character traits of a victim within the scope of Rule 404(a)(2) (e.g., victim's aggressive character where self defense is a defense).

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.09 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal §§ 3.06, 3.12 (1999); Ninth Cir. Crim. Jury Instr. 4.7 (1997). See generally FRE 404(a)(3), 608; West Key # "Criminal Law" 785(8-13).

Once a criminal defendant has testified, his or her character for truth and veracity may be attacked, as with any other witness, in the ways provided for in Rule 608 (and 609), FRE It is not necessary, for that purpose, that he or she first have attempted to introduce evidence of his or her good character for truth and veracity, United States v. Walker, 313 F.2d 236, 238 (6th Cir. 1963). A defendant who testifies has no right to offer evidence of his or her character for truthfulness (as a witness) unless that character has first been attacked, either in a way provided for in Rule 608 or in some other actual way. See 3 Weinstein's Evidence ¶ 608[08] (1985). There are, however, constitutional limitations on excluding character evidence offered by a defendant. See, e.g., United States v. Watson, 669 F.2d 1374, 1381-84 (11th Cir. 1982); United States v. Davis, 639 F.2d 239 (5th Cir. 1981).

If the defendant offers evidence of a pertinent character trait of the victim, evidence of the defendant’s own character as to that trait becomes admissible. FRE 404(a)(1).

(For 2006 version see below)

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2006 Version

You have heard testimony about the character and reputation of [(name of witness)] [the defendant] [defendant (name)] for truthfulness. You may consider this evidence only in deciding whether to believe the testimony of [(name of witness)] [the defendant] [defendant (name)] and how much weight to give to it.

Notes on Use

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.09 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal §§ 3.06, 3.12 (1999); Ninth Cir. Crim. Jury Instr. 4.7 (1997). See generally FRE 404(a)(3), 608; West Key # "Criminal Law" 785(8-13).

If the defendant offers evidence of a pertinent character trait of the victim, evidence of the defendant’s own character as to that trait becomes admissible. FRE 404(a)(1).

For 2000 version see below

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2000 Version

4.02 CHARACTER AND REPUTATION, FOR TRUTHFULNESS, WITNESSES (INCLUDING DEFENDANT)1

You have heard testimony about the character and reputation of [(name of witness)] [the defendant] [defendant (name)] for truthfulness. You may consider this evidence only in deciding whether to believe the testimony of [(name of witness)] [the defendant] [defendant (name)] and how much weight to give to it.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.09 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal §§ 3.06, 3.12 (1999); Ninth Cir. Crim. Jury Instr. 4.7 (1997). See generally FRE 404(a)(3), 608; West Key # "Criminal Law" 785(8-13).

Once a criminal defendant has testified, his or her character for truth and veracity may be attacked, as with any other witness, in the ways provided for in Rule 608 (and 609), FRE It is not necessary, for that purpose, that he or she first have attempted to introduce evidence of his or her good character for truth and veracity, United States v. Walker, 313 F.2d 236, 238 (6th Cir.), cert. denied, 374 U.S. 807 (1963). A defendant who testifies has no right to offer evidence of his or her character for truthfulness (as a witness) unless that character has first been attacked, either in a way provided for in Rule 608 or in some other actual way. See 3 Weinstein's Evidence ¶ 608[08] (1985). There are, however, constitutional limitations on excluding character evidence offered by a defendant. See, e.g., United States v. Watson, 669 F.2d 1374, 1381-84 (11th Cir. 1982); United States v. Davis, 639 F.2d 239 (5th Cir. 1981).

Notes on Use

1. This instruction should not be used where a defendant's character for truthfulness in fact represents a "pertinent character trait" within the scope of Rule 404(a)(1). United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir.), cert. denied, 484 U.S. 860 (1987). In a perjury case, for example, the defendant's character for truthfulness would presumably be a "pertinent character trait," and it would be erroneous to instruct that the evidence could be used only in deciding whether to believe the defendant's testimony (assuming that he testified). The same problem may also exist with respect to certain types of fraud charges and other offenses. In any such situation, if an instruction is to be given at all (see Committee Comments, No. 4.03, infra, and United States v. Krapp, 815 F.2d at 1187-88), it should advise the jury that it "may consider this evidence in deciding whether or not the defendant committed the crime of __________." A similar sort of instruction, if one is desired, may be used to cover evidence of other pertinent character traits within Rule 404(a)(1) (e.g., peaceableness in a murder case, etc.), and to cover pertinent character traits of a victim within the scope of Rule 404(a)(2) (e.g., victim's aggressive character where self defense is a defense).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.03
DEFENDANT'S CHARACTER "STANDING ALONE"

FORECITE National™ Materials Related To This Instruction:

251.4 Good Character Of Defendant

(No instruction recommended.)

Committee Comments

See United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987). See generally West Key # "Criminal Law" 375-381, 776, 829(16).

Rule 405 of the Federal Rules of Evidence allows testimony as to the reputation of the defendant or an opinion as to the defendant's character in cases where evidence of character or a character trait is admissible. The Eighth Circuit, along with some other circuits, has disapproved the giving of a "standing alone" instruction (that proof of the defendant's good character, standing alone, may be sufficient to create a reasonable doubt with respect to such evidence) with regard to such evidence. United States v. Krapp; Black v. United States, 309 F.2d 331, 343-44 (8th Cir. 1962). See also United States v. Winter, 663 F.2d 1120, 1148 (1st Cir. 1981); holding that such an instruction is an unwarranted invasion of the jury's special function in deciding what weight to give any particular item of evidence; United States v. Logan, 717 F.2d 84 (3d Cir. 1983); United States v. Foley, 598 F.2d 1323 (4th Cir. 1979); United States v. Ruppel, 666 F.2d 261 (5th Cir. 1982). But see Justice White's dissent to the denial of certiorari in Spangler v. United States, 487 U.S. 1224 (1988).

A "standing alone" instruction on good character does appear in many jury instruction manuals. See Federal Judicial Center, Pattern Criminal Jury Instructions § 51 (1988); Seventh Circuit Federal Jury Instructions § 3.06 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 11 (1997).

Volume 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.15 (5th ed. 2000) proposes an instruction which does not use the "standing alone" language but simply directs the jury to consider that evidence along with the other evidence in the case.

(For 2008 version see below).

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2008 Version

[No instruction recommended.]

Committee Comments

See United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987). See generally West Key # "Criminal Law" 375-381, 776, 829(16).

(For 2006 version see below)

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2006 Version

[No instruction recommended.]

Committee Comments

See United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987). See generally West Key # "Criminal Law" 375-381, 776, 829(16).

For 2000 version see below

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2000 Version

4.03 DEFENDANT'S CHARACTER "STANDING ALONE"

[No instruction recommended.]

Committee Comments

See United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir.), cert. denied, 484 U.S. 860 (1987). See generally West Key # "Criminal Law" 375-381, 776, 829(16).

Rule 405 of the Federal Rules of Evidence allows testimony as to the reputation of defendant or an opinion as to defendant's character in cases where evidence of character or a character trait is admissible. The Eighth Circuit, along with some other circuits, has disapproved the giving of a "standing alone" instruction (that proof of defendant's good character, standing alone, may be sufficient to create a reasonable doubt with respect to such evidence) with regard to such evidence. United States v. Krapp; Black v. United States, 309 F.2d 331, 343-44 (8th Cir. 1962), cert. denied, 372 U.S. 934 (1963). See also United States v. Winter, 663 F.2d 1120, 1148 (1st Cir. 1981), cert. denied, 460 U.S. 1011 (1983); holding that such an instruction is an unwarranted invasion of the jury's special function in deciding what weight to give any particular item of evidence; United States v. Logan, 717 F.2d 84 (3d Cir. 1983); United States v. Foley, 598 F.2d 1323 (4th Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United States v. Ruppel, 666 F.2d 261 (5th Cir.), cert. denied, 458 U.S. 1107 (1982). But see Justice White's dissent to the denial of certiorari in Spangler v. United States, 487 U.S. 1224 (1988).

Volume 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.15 (4th ed. 1992) proposes an instruction which does not use the "standing alone" language but simply directs the jury to consider that evidence along with the other evidence in the case.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.04
TESTIMONY UNDER GRANT OF IMMUNITY OR PLEA BARGAIN

FORECITE National™ Materials Related To This Instruction:

25.5 Witness Immunity

You have heard evidence that (name of witness) [has made a plea agreement with the Government] [has received a promise from the Government that [he] [she] will not be prosecuted] [has received a promise from the Government that [his] [her] testimony will not be used against [him] [her] in a criminal case]. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by the [plea agreement] [Government's promise] is for you to determine.

[The witness's guilty plea cannot be considered by you as any evidence of this defendant's guilt. The witness's guilty plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witness's testimony.]¹

Notes on Use

1. Use only where the government's promises have been coupled with a guilty plea by the witness. Where there has simply been a guilty plea by the witness to the crime on trial, without any evidence of a plea bargain or other governmental promise, use Instruction 2.19, supra.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 n.5 (8th Cir. 1986); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.03 (5th ed. 2000); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 507, 508(2, 9).

This instruction is designed to be used in normal situations involving a plea agreement or a grant of immunity under 18 USC 6002. If in a particular case a witness receives a different or additional promise from the government, there should be an appropriate modification of this instruction.

An instruction regarding the credibility of immunized witnesses, accomplices, informants, etc. is permissible and the Committee recommends one be given if requested. Failure to give such an instruction is not reversible error, however, where the testimony is corroborated. United States v. McGinnis, 783 F.2d 755, 758 (8th Cir. 1986); United States v. Mothershed, 859 F.2d 585, 592 (8th Cir. 1988).

Where the testimony is uncorroborated, it is the better practice to caution the jury. The jury is sufficiently cautioned when it is directed to the specific factors the jury should take into account in assessing the credibility of these categories of witnesses. United States v. Bowman, 798 F.2d 333, 334-35 (8th Cir. 1986); United States v. Ridinger, 805 F.2d 818, 821-22 (8th Cir. 1986). This instruction and Instructions 4.05A and 4.06 were drafted to direct the jury's attention to the specific factors.

It should be noted that, although other circuits have treated the failure to caution the jury on uncorroborated testimony as reversible error, United States v. McGinnis, 783 F.2d at 758, this circuit has long held that there is no such "absolute and mandatory duty . . . imposed upon the court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution." Esters v. United States, 260 F.2d 393, 397 (8th Cir. 1958), construing Caminetti v. United States, 242 U.S. 470, 496 (1917). This circuit continues to construe Caminetti in accord with Esters. United States v. Rockelman, 49 F.3d 418, 423 (8th Cir. 1995); United States v. Schoenfeld, 867 F.2d 1059, 1061-62 (8th Cir. 1989); United States v. Shriver, 838 F.2d 980, 983 (8th Cir. 1988).

While Caminetti acknowledges that the better practice is to "caution" the jury, it did not require that the jury be so instructed or specify the form of any such "caution." Often this has been accomplished by what this circuit has labeled a "cautionary tail," language to the effect that testimony from such a witness must be examined with greater caution and care than ordinary witnesses. See, e.g., 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.02-.05 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury. Instructions §§ 24, 25 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.13 (1999); Ninth Cir. Crim. Jury Instr. 4.9, 4.10, (formerly 4.10.1, 4.10.2 (1997)), 4.11, 4.12 (formerly 4.15 (1997)). However this Circuit has criticized the use of a "cautionary tail" as an unwarranted intrusion into the jury's functions.

Accordingly, if an instruction along with the lines of the text is given, which identifies specific factors the jury should take into account in assessing credibility, the Committee recommends against the use of a "cautionary tail" in these kinds of instructions (4.04, 4.05A and 4.06).

(For 2008 version see below).

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2008 Version

You have heard evidence that (name of witness) [has made a plea agreement with the Government] [has received a promise from the Government that [he] [she] will not be prosecuted] [has received a promise from the Government that [his] [her] testimony will not be used against [him] [her] in a criminal case]. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by the [plea agreement] [Government's promise] is for you to determine.

[The witness's guilty plea cannot be considered by you as any evidence of this defendant's guilt. The witness's guilty plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witness's testimony.]¹

Notes on Use

Committee Comments

Where the testimony is uncorroborated, it is the better practice to caution the jury. The jury is sufficiently cautioned when it is directed to the specific factors the jury should take into account in assessing the credibility of these categories of witnesses. United States v. Bowman, 798 F.2d 333, 334-35 (8th Cir. 1986); United States v. Ridinger, 805 F.2d 818, 821-22 (8th Cir. 1986). This instruction and Instructions 4.05 and 4.06 were drafted to direct the jury's attention to the specific factors.

(For 2006 version see below)

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2006 Version

You have heard evidence that (name of witness) [has made a plea agreement with the Government] [has received a promise from the Government that [he] [she] will not be prosecuted] [has received a promise from the Government that [his] [her] testimony will not be used against [him] [her] in a criminal case]. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by the [plea agreement] [Government's promise] is for you to determine.

[The witness's guilty plea cannot be considered by you as any evidence of this defendant's guilt. The witness's guilty plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witness's testimony.]1

Notes on Use

Committee Comments

Where the testimony is uncorroborated, it is the better practice to caution the jury. The jury is sufficiently cautioned when it is directed to the specific factors the jury should take into account in assessing the credibility of these categories of witnesses. United States v. Bowman, 798 F.2d 333, 334-35 (8th Cir. 1986); United States v. Ridinger, 805 F.2d 818, 821-22 (8th Cir. 1986). This instruction and Instructions 4.05 and 4.06 were drafted to direct the jury's attention to the specific factors.

While Caminetti acknowledges that the better practice is to "caution" the jury, it did not require that the jury be so instructed or specify the form of any such "caution." Often this has been accomplished by what this circuit has labeled a "cautionary tail," language to the effect that testimony from such a witness must be examined with greater caution and care than ordinary witnesses. See, e.g., 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 15.02-.05 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury. Instructions §§ 24, 25 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.13 (1999); Ninth Cir. Crim. Jury Instr. 4.9, 4.10, 4.11, 4.12 (1997). However this Circuit has criticized the use of a "cautionary tail" as an unwarranted intrusion into the jury's functions.

For 2000 version see below

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2000 Version

4.04 TESTIMONY UNDER GRANT OF IMMUNITY OR PLEA BARGAIN

You have heard evidence that (name of witness) [has made a plea agreement with the Government] [has received a promise from the Government that [he] [she] will not be prosecuted] [has received a promise from the Government that [his] [her] testimony will not be used against [him] [her] in a criminal case]. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by the [plea agreement] [Government's promise] is for you to determine.

[The witness's guilty plea cannot be considered by you as any evidence of this defendant's guilt. The witness's guilty plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witness's testimony.]1

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 n.5 (8th Cir. 1986); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.03 (4th ed. 1992); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 507, 508(2, 9).

Where the testimony is uncorroborated, it is the better practice to caution the jury. The jury is sufficiently cautioned when it is directed to the specific factors the jury should take into account in assessing the credibility of these categories of witnesses. United States v. Bowman, 798 F.2d 333, 334-35 (8th Cir. 1986), cert. denied, 479 U.S. 1043 (1987); United States v. Ridinger, 805 F.2d 818, 821-22 (8th Cir. 1986). This instruction and Instructions 4.05 and 4.06 were drafted to direct the jury's attention to the specific factors.

It should be noted that, although other circuits have treated the failure to caution the jury on uncorroborated testimony as reversible error, United States v. McGinnis, 783 F.2d at 758, this circuit has long held that there is no such "absolute and mandatory duty . . . imposed upon the court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution." Esters v. United States, 260 F.2d 393, 397 (8th Cir. 1958), construing Caminetti v. United States, 242 U.S. 470, 496 (1917). This circuit continues to construe Caminetti in accord with Esters. United States v. Rockelman, 49 F.3d 418, 423 (8th Cir. 1995); United States v. Schoenfeld, 867 F.2d 1059, 1061-62 (8th Cir. 1989); United States v. Shriver, 838 F.2d 980, 983 (8th Cir. 1988).

While Caminetti acknowledges that the better practice is to "caution" the jury, it did not require that the jury be so instructed or specify the form of any such "caution." Often this has been accomplished by what this circuit has labeled a "cautionary tail," language to the effect that testimony from such a witness must be examined with greater caution and care than ordinary witnesses. See, e.g., 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 15.02-15.05 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury. Instructions §§ 24, 25 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.13 (1999); Ninth Cir. Crim. Jury Instr. 4.9, 4.10.1, 4.10.2, 4.11, 4.15 (1997). However this Circuit has criticized the use of a "cautionary tail" as an unwarranted intrusion into the jury's functions.

Notes on Use

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.05A
TESTIMONY OF ACCOMPLICE

FORECITE National™ Materials Related To This Instruction:

25.6 Accomplices: Cautionary Instructions

You have heard testimony from (name of witness) who stated that [he] [she] participated in the crime charged against the defendant. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by [his] [her] desire to please the Government or to strike a good bargain with the Government about [his] [her] own situation is for you to determine.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 n.5 (8th Cir. 1986); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 15.04 (5th ed. 2000); United States v. Valdez, 529 F.2d 996, 997 (8th Cir. 1976). See generally West Key # "Criminal Law" 780.

See also Committee Comments, Instruction 4.04, supra.

An accomplice instruction may be given if requested but is not required. United States v. Rockelman, 49 F.3d 418, 423 (8th Cir. 1995); United States v. Schoenfeld, 867 F.2d 1059, 1061-62 (8th Cir. 1989); United States v. Roberts, 848 F.2d 906, 908 (8th Cir. 1988); United States v. Shriver, 838 F.2d 980, 983 (8th Cir. 1988).

This instruction is to be used when the accomplice is called by the government and his testimony does not exculpate the defendant. Do not use this instruction if the witness received immunity; in that case, use Instruction 4.04, supra.

An accomplice instruction is generally thought to be helpful to a defendant's case, and the giving of such an instruction, even over defense counsel's objection, may not be prejudicial error. United States v. Smith, 596 F.2d 319, 322 (8th Cir. 1979) (defense counsel objected because he did not wish to call attention to accomplice testimony).

(For 2008 version see below).

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2008 Version

4.05
TESTIMONY OF ACCOMPLICE

You have heard testimony from (name of witness) who stated that [he] [she] participated in the crime charged against the defendant. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by [his] [her] desire to please the Government or to strike a good bargain with the Government about [his] [her] own situation is for you to determine.

Committee Comments

See also Committee Comments, Instruction 4.04, supra.

(For 2006 version see below)

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2006 Version

You have heard testimony from (name of witness) who stated that [he] [she] participated in the crime charged against the defendant. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by [his] [her] desire to please the Government or to strike a good bargain with the Government about [his] [her] own situation is for you to determine.

Committee Comments

See also Committee Comments, Instruction 4.04, supra.

For 2000 version see below

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2000 Version

4.05 TESTIMONY OF ACCOMPLICE

You have heard testimony from (name of witness) who stated that [he] [she] participated in the crime charged against the defendant. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] testimony may have been influenced by [his] [her] desire to please the Government or to strike a good bargain with the Government about [his] [her] own situation is for you to determine.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 n.5 (8th Cir. 1986); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 15.04 (4th ed. 1992); United States v. Valdez, 529 F.2d 996, 997 (8th Cir.), cert. denied, 426 U.S. 909 (1976). See generally West Key # "Criminal Law" 780.

See also Committee Comments, Instruction 4.04, supra.

An accomplice instruction may be given if requested but is not required. United States v. Rockelman, 49 F.3d 418, 423 (8th Cir. 1995); United States v. Schoenfeld, 867 F.2d 1059, 1061-62 (8th Cir. 1989); United States v. Roberts, 848 F.2d 906, 908 (8th Cir.), cert. denied, 488 U.S. 931 (1988); United States v. Schriver, 838 F.2d 980, 983 (8th Cir. 1988).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.05B
CREDIBILITY - COOPERATING WITNESS

FORECITE National™ Materials Related To This Instruction:

25.7 Witness Or Informant Receiving Benefit From Prosecution

You [have heard] [are about to hear] evidence that [name of witness] hopes to receive a reduced sentence on criminal charges pending against [him] [her] in return for [his] [her] cooperation with the Government in this case. [Name of witness] entered into an agreement with [name of agency] which provides (specify general agreement, for example, that in return for his assistance, the Government will dismiss certain charges, recommend a less severe sentence [which could be less than the mandatory minimum sentence for the crime[s] with which he/she is charged]). [[Name of witness] is subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of a certain minimum length. If the prosecutor handling this witness’s case believes [he] [she] provided substantial assistance, that prosecutor can file in the court in which the charges are pending against this witness a motion to reduce [his] [her] sentence below the statutory minimum. The judge has no power to reduce a sentence for substantial assistance unless the Government, acting through the United States Attorney, files a such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the Government, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it.]

You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by [his] [her] hope of receiving a reduced sentence is for you to decide.

(For 2008 version see below).

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2008 Version

4.05A
CREDIBILITY - COOPERATING WITNESS

You [have heard] [are about to hear] evidence that [name of witness] hopes to receive a reduced sentence on criminal charges pending against [him] [her] in return for [his] [her] cooperation with the Government in this case. [Name of witness] entered into an agreement with [name of agency] which provides (specify general agreement, for example, that in return for his assistance, the Government will dismiss certain charges, recommend a less severe sentence [which could be less than the mandatory minimum sentence for the crime[s] with which he/she is charged]). [[Name of witness] is subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of a certain minimum length. If the prosecutor handling this witness’s case believes [he] [she] provided substantial assistance, that prosecutor can file in the court in which the charges are pending against this witness a motion to reduce [his] [her] sentence below the statutory minimum. The judge has no power to reduce a sentence for substantial assistance unless the Government, acting through the United States Attorney, files a such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the Government, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it.]

You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by [his] [her] hope of receiving a reduced sentence is for you to decide.

(For 2006 version see below)

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2006 Version

You [have heard] [are about to hear] evidence that [name of witness] hopes to receive a reduced sentence on criminal charges pending against [him] [her] in return for [his] [her] cooperation with the Government in this case. [Name of witness] entered into an agreement with [name of agency] which provides (specify general agreement, for example, that in return for his assistance, the Government will dismiss certain charges, recommend a less severe sentence [which could be less than the mandatory minimum sentence for the crime[s] with which he/she is charged]). [[Name of witness] is subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of a certain minimum length. If the prosecutor handling this witness’s case believes [he] [she] provided substantial assistance, that prosecutor can file in the court in which the charges are pending against this witness a motion to reduce [his] [her] sentence below the statutory minimum. The judge has no power to reduce a sentence for substantial assistance unless the Government, acting through the United States Attorney, files a such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the Government, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it.]

You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by [his] [her] hope of receiving a reduced sentence is for you to decide.

For 2000 version see below

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2000 Version

4.05A CREDIBILITY - COOPERATING WITNESS

You have heard evidence that [name of witness] hopes to receive a reduced sentence on criminal charges pending against [him] [her] in return for [his] [her] cooperation with the Government in this case. [Name of witness] entered into a "plea agreement" with [name of agency] which provides (specify general agreement, for example, that in return for his assistance, the Government will file a motion for reduction in his sentence). [Name of witness] is subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of a certain minimum length. If the prosecutor handling this witness’s case believes [he] [she] provided substantial assistance, that prosecutor can file in the court in which the charges are pending against this witness a motion to reduce [his] [her] sentence below the statutory minimum. The judge has no power to reduce a sentence for substantial assistance unless the Government, acting through the United States Attorney, files a such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the Government, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it.

You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by [his] [her] hope of receiving a reduced sentence is for you to decide.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.06
TESTIMONY OF INFORMER

FORECITE National™ Materials Related To This Instruction:

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

You have heard evidence that (name of witness) has an arrangement with the Government under which [he] [she] [gets paid] [receives (describe benefit)] for providing information to the Government. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] information or testimony may have been influenced by [such payments] [receiving (describe benefit)] is for you to determine.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 (8th Cir. 1986). See generally West Key # "Criminal Law" 785(4).

See also Committee Comments, Instruction 4.04, supra.

The giving of a special instruction on the credibility of an informer is within the discretion of the trial court. United States v. Robertson, 706 F.2d 253, 255 (8th Cir. 1983). The presence of substantial independent evidence in support of the defendant's guilt is a factor entitled to considerable weight in determining whether the trial court abused that discretion in refusing to give an informer instruction. Id.

Case law clearly identifies an informer as a witness who is a narcotics user or addict and who is testifying either to gain some advantage or to avoid some disadvantage, or who is paid on a contingency fee basis by the government. See Government of Virgin Islands v. Hendricks, 476 F.2d 776, 779-80 (3d Cir. 1973). Informants include witnesses who are paid in cash or receive other benefits for their testimony in a specific case or on a continuing basis by the government. United States v. Lee, 506 F.2d 111, 122-23 (D.C. Cir. 1974).

A witness who did not receive any pay or promises was held not to be an informer in United States v. Klein, 701 F.2d 66, 68 (8th Cir. 1983) and in Jones v. United States, 396 F.2d 66, 68 (8th Cir. 1969). A reluctant witness who was told he would not be prosecuted if he told the truth was not considered an informer in United States v. Phillips, 522 F.2d 388, 391-92 (8th Cir. 1975). In all of these cases it was held that a cautionary instruction was not required.

The Eighth Circuit has declined to adopt a per se rule requiring that an addict-informant instruction be given on request. Instead, the circumstances of each case determine the need for an addict-informant instruction. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981) (lists several factors obviating need for addict-informant instruction); United States v. Shigemura, 682 F.2d 699, 702-03 (8th Cir. 1982); United States v. Broyles, 764 F.2d 525, 527 (8th Cir. 1985).

(For 2008 version see below).

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2008 Version

You have heard evidence that (name of witness) has an arrangement with the Government under which [he] [she] [gets paid] [receives (describe benefit)] for providing information to the Government. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] information or testimony may have been influenced by [such payments] [receiving (describe benefit)] is for you to determine.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 (8th Cir. 1986). See generally West Key # "Criminal Law" 785(4).

See also Committee Comments, Instruction 4.04, supra.

(For 2006 version see below)

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2006 Version

You have heard evidence that (name of witness) has an arrangement with the Government under which [he] [she] [gets paid] [receives (describe benefit)] for providing information to the Government. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] information or testimony may have been influenced by [such payments] [receiving (describe benefit)] is for you to determine.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 (8th Cir. 1986). See generally West Key # "Criminal Law" 785(4).

See also Committee Comments, Instruction 4.04, supra.

For 2000 version see below

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2000 Version

4.06 TESTIMONY OF INFORMER

You have heard evidence that (name of witness) has an arrangement with the Government under which [he] [she] [gets paid] [receives (describe benefit)] for providing information to the Government. [His] [Her] testimony was received in evidence and may be considered by you. You may give [his] [her] testimony such weight as you think it deserves. Whether or not [his] [her] information or testimony may have been influenced by [such payments] [receiving (describe benefit)] is for you to determine.

Committee Comments

See United States v. Ridinger, 805 F.2d 818, 821 (8th Cir. 1986). See generally West Key # "Criminal Law" 785(4).

See also Committee Comments, Instruction 4.04, supra.

The giving of a special instruction on the credibility of an informer is within the discretion of the trial court. United States v. Robertson, 706 F.2d 253, 255 (8th Cir. 1983). The presence of substantial independent evidence in support of defendant's guilt is a factor entitled to considerable weight in determining whether the trial court abused that discretion in refusing to give an informer instruction. Id.

Case law clearly identifies an informer as a witness who is a narcotics user or addict and who is testifying either to gain some advantage or to avoid some disadvantage, or who is paid on a contingency fee basis by the government. See Government of Virgin Islands v. Hendricks, 476 F.2d 776, 779-780 (3d Cir. 1973). Informants include witnesses who are paid in cash or receive other benefits for their testimony in a specific case or on a continuing basis by the government. United States v. Lee, 506 F.2d 111, 122-23 (D.C. Cir. 1974), cert. denied, 421 U.S. 1002 (1975).

A witness who did not receive any pay or promises was held not to be an informer in United States v. Klein, 701 F.2d 66, 68 (8th Cir. 1983) and in Jones v. United States, 396 F.2d 66, 68 (8th Cir.), cert. denied, 393 U.S. 1057 (1969). A reluctant witness who was told he would not be prosecuted if he told the truth was not considered an informer in United States v. Phillips, 522 F.2d 388, 391-92 (8th Cir. 1975). In all of these cases it was held that a cautionary instruction was not required.

The Eighth Circuit has declined to adopt a per se rule requiring that an addict-informant instruction be given on request. Instead, the circumstances of each case determine the need for an addict-informant instruction. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, 454 U.S. 849 (1981) (lists several factors obviating need for addict-informant instruction); United States v. Shigemura, 682 F.2d 699, 702-03 (8th Cir. 1982), cert. denied, 459 U.S. 1111 (1983); United States v. Broyles, 764 F.2d 525, 527 (8th Cir. 1985).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.07
COMMON SCHEME - ACTS OR DECLARATIONS OF PARTICIPANT

(See Instruction 5.06I, infra.)¹

Notes on Use

1. The "Coconspirator Statements" instruction at No. 5.06I, infra, can be easily modified to apply to acts or declarations of a participant in a common scheme.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.02 (5th ed. 2000)

See Committee Comments, Instruction 5.06I, infra.

Where there is evidence of a common scheme or plan, acts and declarations of the participants may be introduced in the same manner as acts or declarations of co-conspirators. FRE 801(d)(2)(E) defining such declarations to be non-hearsay applies whether or not a conspiracy was charged. United States v. Kiefer, 694 F.2d 1109, 1112 n.2 (8th Cir. 1982); United States v. Miller, 644 F.2d 1241, 1244 (8th Cir. 1981).

(For 2008 version see below).

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2008 Version

[See Instruction 5.06I, infra.]¹

Notes on Use

1. The "Coconspirator Statements" instruction at No. 5.06I, infra, can be easily modified to apply to acts or declarations of a participant in a common scheme.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.02 (5th ed. 2000)

See Committee Comments, Instruction 5.06I, infra.

(For 2006 version see below)

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2006 Version

[See Instruction 5.06I, infra.]1

Committee Comments

1. The "Coconspirator Statements" instruction at No. 5.06I, infra, can be easily modified to apply to acts or declarations of a participant in a common scheme.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.02 (5th ed. 2000)

See Committee Comments, Instruction 5.06I, infra.

For 2000 version see below

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2000 Version

4.07 COMMON SCHEME - ACTS OR DECLARATIONS OF PARTICIPANT

[See Instruction 5.06I, infra.]1

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 18.02 (4th ed. 1992)

See Committee Comments, Instruction 5.06I, infra.

Where there is evidence of a common scheme or plan, acts and declarations of the participants may be introduced in the same manner as acts or declarations of co-conspirators. FRE 801(d)(2)(E) defining such declarations to be non-hearsay applies whether or not a conspiracy was charged. United States v. Kieffer, 694 F.2d 1109, 1112 n.2 (8th Cir. 1982); United States v. Miller, 644 F.2d 1241, 1244 (8th Cir.), cert. denied, 454 U.S. 850 (1981).

Notes on Use

1. The "Coconspirator Statements" instruction at No. 5.06I, infra, can be easily modified to apply to acts or declarations of a participant in a common scheme.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.08
EYEWITNESS TESTIMONY

FORECITE National™ Materials Related To This Instruction:

Chapter 31: Identification: Eyewitness (Mistaken Identity)

The value of identification testimony depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In evaluating such testimony you should consider all of the factors mentioned in these instructions concerning your assessment of the credibility of any witness, and you should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time of the offense. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

[In general, a witness uses his or her senses to make an identification. Usually the witness identifies an offender by the sense of sight -- but this is not necessarily so, and other senses may be used.]

You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see the defendant.

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

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.

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

The Government has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of the identification. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find [him] [her] guilty. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Committee Comments

See United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 14.10, 14.11 (5th ed. 2000). See generally West Key # "Criminal Law" 566, 785(10), 829(16), 1173.2(8).

Although the court in Telfaire found the case before it was not one requiring a special eyewitness instruction, as part of its appellate function it drafted an eyewitness instruction for future use in appropriate cases. The instruction in this manual is basically the same instruction. However, changes have been made in vocabulary and sequence and repetitive material has been eliminated.

The purpose of the Telfaire instruction was to adopt the approach of United States v. Barber, 442 F.2d 517, 528 (3d Cir. 1971) to (1)"obviate skeletal pattern instructions" and (2) "assure the essential particularity demanded by the facts surrounding each identification." 469 F.2d at 557. Telfaire stressed that the instruction was to be used as a model, with the language to be revised and adapted to suit the proof and contentions of each case. Id.

This Circuit has strongly recommended the giving of a Telfaire instruction, if requested, in a case in which the reliability of eyewitness identification of a defendant presents a serious question, although the exact language need not be given, and further, where the government's case rests solely or substantially on questionable eyewitness identification, it is reversible error to refuse to give a Telfaire-type instruction. United States v. Mays, 822 F.2d 793, 798 (8th Cir. 1987); Williams v. Lockhart, 736 F.2d 1264, 1267 (8th Cir. 1984); United States v. Cain, 616 F.2d 1056, 1058 (8th Cir. 1980); United States v. Greene, 591 F.2d 471, 474-77 (8th Cir. 1979); Durns v. United States, 562 F.2d 542, 549-50 (8th Cir. 1977); United States v. Dodge, 538 F.2d 770, 783-84 (8th Cir. 1976); United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975).

In Dodge, the court indicated it would view with concern the failure to give specific and detailed instructions on identification in future cases where the identification of the defendant is based solely or substantially on eyewitness testimony. 538 F.2d at 784. Failure to give such an instruction in that case was not grounds for reversal since the identification was not considered "questionable." See also United States v. Johnson, 848 F.2d 904, 906 (8th Cir. 1988) holding that a specific eyewitness instruction was not necessary where nothing suggested that the eyewitness' testimony was unreliable. A general credibility instruction was held sufficient. In Durns failure to include the first and last paragraphs of Telfaire was found not to be error where there was substantial circumstantial evidence in addition to the eyewitness identification. 562 F.2d at 549-50.

In Greene the court found failure to give the instruction reversible error, analyzing the basic question as whether eyewitness testimony is essential to support a conviction. 591 F.2d at 475. Three factors not present in Dodge were found present in Greene: l) the eyewitness identification was the sole basis for conviction; 2) there was the possibility of misidentification and 3) the trial court gave no instruction alerting the jury to the crucial role that eyewitness identification played in that case. 591 F.2d at 476. It should be further noted that the Telfaire instruction was requested. 591 F.2d at 474-75 n.4.

In Cain and Mays there was no prejudicial error to refuse to give a requested Telfaire instruction where the identification testimony was strongly corroborated. 616 F.2d at 1058-59; 822 F.2d at 798. In Roundtree the court found no error where the instruction had not been requested. 527 F.2d at 13.

In United States v. Grey Bear, 883 F.2d 1382 (8th Cir. 1989), the court upheld a trial court’s refusal to give a very detailed identification instruction where the instruction given adequately pointed out the relevant considerations to be weighed in gauging eyewitness testimony including accurate recollection and the ability to observe.

(For 2008 version see below).

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2008 Version

The value of identification testimony depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In evaluating such testimony you should consider all of the factors mentioned in these instructions concerning your assessment of the credibility of any witness, and you should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time of the offense. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

[In general, a witness uses his or her senses to make an identification. Usually the witness identifies an offender by the sense of sight -- but this is not necessarily so, and other senses may be used.]

You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see the defendant.

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

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.

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

The Government has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of the identification. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find [him] [her] guilty. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Committee Comments

(For 2006 version see below)

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2006 Version

The value of identification testimony depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In evaluating such testimony you should consider all of the factors mentioned in these instructions concerning your assessment of the credibility of any witness, and you should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time of the offense. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

[In general, a witness uses his or her senses to make an identification. Usually the witness identifies an offender by the sense of sight -- but this is not necessarily so, and other senses may be used.]

You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see the defendant.

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

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.

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

The Government has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of the identification. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find [him] [her] guilty. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Committee Comments

For 2000 version see below

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2000 Version

4.08 EYEWITNESS TESTIMONY

The value of identification testimony depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In evaluating such testimony you should consider all of the factors mentioned in these instructions concerning your assessment of the credibility of any witness, and you should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time of the offense. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

[In general, a witness uses his or her senses to make an identification. Usually the witness identifies an offender by the sense of sight -- but this is not necessarily so, and other senses may be used.]

You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant.

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

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.

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

The Government has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of the identification. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find [him] [her] guilty. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Committee Comments

See United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 14.10, 14.11 (4th ed. 1992). See generally West Key # "Criminal Law" 566, 785(10), 829(16), 1173.2(8).

The purpose of the Telfaire instruction was to adopt the approach of United States v. Barber, 442 F.2d 517, 528 (3d Cir.), cert. denied, 404 U.S. 958 (1971) to (1)"obviate skeletal pattern instructions" and (2) "assure the essential particularity demanded by the facts surrounding each identification." 469 F.2d at 557. Telfaire stressed that the instruction was to be used as a model, with the language to be revised and adapted to suit the proof and contentions of each case. Id.

This Circuit has strongly recommended the giving of a Telfaire instruction, if requested, in a case in which the reliability of eyewitness identification of a defendant presents a serious question, although the exact language need not be given, and further, where the government's case rests solely or substantially on questionable eyewitness identification, it is reversible error to refuse to give a Telfaire-type instruction. United States v. Mays, 822 F.2d 793, 798 (8th Cir. 1987); Williams v. Lockhart, 736 F.2d 1264, 1267 (8th Cir. 1984); United States v. Cain, 616 F.2d 1056, 1058 (8th Cir. 1980); United States v. Greene, 591 F.2d 471, 474-77 (8th Cir. 1979); Durns v. United States, 562 F.2d 542, 549-550 (8th Cir.), cert. denied, 434 U.S. 959 (1977); United States v. Dodge, 538 F.2d 770, 783-84 (8th Cir. 1976), cert. denied sub nom., Escamilla v. United States, cert. denied, 429 U.S. 1099 (1977); United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975), cert. denied, 424 U.S. 923 (1976).

In Dodge, the court indicated it would view with concern the failure to give specific and detailed instructions on identification in future cases where the identification of defendant is based solely or substantially on eyewitness testimony. 538 F.2d at 784. Failure to give such an instruction in that case was not grounds for reversal since the identification was not considered "questionable." See also United States v. Johnson, 848 F.2d 904, 906 (8th Cir. 1988) holding that a specific eyewitness instruction was not necessary where nothing suggested that the eyewitness' testimony was unreliable. A general credibility instruction was held sufficient. In Durns failure to include the first and last paragraphs of Telfaire was found not to be error where there was substantial circumstantial evidence in addition to the eyewitness identification. 562 F.2d at 549-550.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.09
INFLUENCING WITNESS, ETC.

FORECITE National™ Materials Related To This Instruction:

34.8.1 Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction

Attempts by a defendant to [conceal] [destroy] [make up evidence] [influence a witness] [influence witnesses] in connection with the crime charged in this case may be considered by you in light of all the other evidence in the case. You may consider whether this evidence shows a consciousness of guilt and determine the significance to be attached to any such conduct.

[Furthermore, you should also understand that such testimony does not relate to the other defendant[s] in any way at all, and must not be used against [him] [her] [them] for any purpose whatsoever.]¹

Notes on Use

1. This limiting paragraph must be given when requested in multi-defendant cases, unless the concealment, threats, etc. were part of a conspiracy.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.07 (5th ed. 2000). See generally West Key # "Criminal Law" 351(8, 10), 778(10).

If the probative value of the evidence outweighs the prejudicial impact under FRE 403, evidence of threats by a defendant against a potential witness can be used to show guilty knowledge. United States v. White, 794 F.2d 367, 371 (8th Cir. 1986). Cf. United States v. Weir, 575 F.2d 668, 670 (8th Cir. 1978) (prejudicial impact not outweighed). Evidence of attempts to influence witnesses is admissible and it is for the jury to say what weight should be given to it. United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977).

An instruction allowing the jury to consider whether such evidence points to a consciousness of guilt was held appropriate under the evidence in United States v. Rucker, 586 F.2d 899, 904 (2d Cir. 1978).

(For 2008 version see below).

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2008 Version

Attempts by a defendant to [conceal] [destroy] [make up evidence] [influence a witness] [influence witnesses] in connection with the crime charged in this case may be considered by you in light of all the other evidence in the case. You may consider whether this evidence shows a consciousness of guilt and determine the significance to be attached to any such conduct.

[Furthermore, you should also understand that such testimony does not relate to the other defendants[s] in any way at all, and must not be used against [him] [her] [them] for any purpose whatsoever.]¹

Notes on Use

1. This limiting paragraph must be given when requested in multi-defendant cases, unless the concealment, threats, etc. were part of a conspiracy.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.07 (5th ed. 2000). See generally West Key # "Criminal Law" 351(8, 10), 778(10).

If the probative value of the evidence outweighs the prejudicial impact under FRE 403, evidence of threats by a defendant against a potential witness can be used to show guilty knowledge. United States v. White, 794 F.2d 367, 371 (8th Cir. 1986). Cf. United States v. Weir, 575 F.2d 668, 670 (8th Cir. 1978) [prejudicial impact not outweighed]. Evidence of attempts to influence witnesses is admissible and it is for the jury to say what weight should be given to it. United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977).

(For 2006 version see below)

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2006 Version

Attempts by a defendant to [conceal] [destroy] [make up evidence] [influence a witness] [influence witnesses] in connection with the crime charged in this case may be considered by you in light of all the other evidence in the case. You may consider whether this evidence shows a consciousness of guilt and determine the significance to be attached to any such conduct.

[Furthermore, you should also understand that such testimony does not relate to the other defendants[s] in any way at all, and must not be used against [him] [her] [them] for any purpose whatsoever.]1

Notes on Use

1. This limiting paragraph must be given when requested in multi-defendant cases, unless the concealment, threats, etc. were part of a conspiracy.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.07 (5th ed. 2000). See generally West Key # "Criminal Law" 351(8, 10), 778(10).

If the probative value of the evidence outweighs the prejudicial impact under FRE 403, evidence of threats by a defendant against a potential witness can be used to show guilty knowledge. United States v. White, 794 F.2d 367, 371 (8th Cir. 1986). Cf. United States v. Weir, 575 F.2d 668, 670 (8th Cir. 1978) [prejudicial impact not outweighed]. Evidence of attempts to influence witnesses is admissible and it is for the jury to say what weight should be given to it. United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977).

For 2000 version see below

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2000 Version

4.09 INFLUENCING WITNESS, ETC.

Attempts by a defendant to [conceal] [destroy] [make up evidence] [influence a witness] [influence witnesses] in connection with the crime charged in this case may be considered by you in light of all the other evidence in the case. You may consider whether this evidence shows a consciousness of guilt and determine the significance to be attached to any such conduct.

[Furthermore, you should also understand that such testimony does not relate to the other defendants[s] in any way at all, and must not be used against [him] [her] [them] for any purpose whatsoever.]1

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.07 (4th ed. 1992). See generally West Key # "Criminal Law" 351(8, 10), 778(10).

If the probative value of the evidence outweighs the prejudicial impact under FRE 403, evidence of threats by a defendant against a potential witness can be used to show guilty knowledge. United States v. White, 794 F.2d 367, 371 (8th Cir. 1986). Cf. United States v. Weir, 575 F.2d 668, 670 (8th Cir. 1978) [prejudicial impact not outweighed]. Evidence of attempts to influence witnesses is admissible and it is for the jury to say what weight should be given to it. United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977).

Notes on Use

1. This limiting paragraph must be given when requested in multi defendant cases, unless the concealment, threats, etc. were part of a conspiracy.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.10
OPINION EVIDENCE - EXPERT WITNESS

FORECITE National™ Materials Related To This Instruction:

Chapter 29: Expert Opinion Testimony

You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion.

Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the case.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 27 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.17 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.07 (1999); Ninth Cir. Crim. Jury Instr. 4.17 (formerly 4.16 (1997)). See also Chatman v. United States, 557 F.2d 147, 148-49 (8th Cir. 1977). See generally FRE 602, 701-05; West Key # "Criminal Law" 785(7).

(For 2008 version see below).

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2008 Version

You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion.

Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the case.

Committee Comments

(For 2006 version see below)

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2006 Version

You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion.

Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the case.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 27 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.17 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.07 (1999); Ninth Cir. Crim. Jury Instr. 4.17 (1997). See also Chatman v. United States, 557 F.2d 147, 148-49 (8th Cir. 1977). See generally FRE 602, 701-05; West Key# "Criminal Law" 785(7).

For 2000 version see below

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2000 Version

4.10 OPINION EVIDENCE, EXPERT WITNESS

You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion.

Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the case.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.01 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 27 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.17 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 3.07 (1999); Ninth Cir. Crim. Jury Instr. 4.16 (1997). See also Chatman v. United States, 557 F.2d 147, 148-49 (8th Cir.), cert. denied, 434 U.S. 863 (1977). See generally FRE 602, 701-05; West Key # "Criminal Law" 785(7).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.11
DEMONSTRATIVE SUMMARIES NOT RECEIVED IN EVIDENCE

FORECITE National™ Materials Related To This Instruction:

25.3 Charts, Summaries, Etc.

Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, or other underlying evidence in the case. Those charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the books, records or other underlying evidence.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.02 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 4.18 (formerly 4.17 (1997)); United States v. Lewis, 759 F.2d 1316, 1329 n.6 (8th Cir. 1985); United States v. Diez, 515 F.2d 892, 905-06 (5th Cir. 1975). See generally 5 Weinstein's Evidence ¶ 1006 (1978).

This instruction should be given only where the chart or summary is used solely as demonstrative evidence. Where such exhibits are admitted into evidence pursuant to FRE 1006, do not give this instruction. For summaries admitted as evidence pursuant to FRE 1006, see Instruction 4.12, infra.

Sending purely demonstrative charts to the jury room is disfavored. If they are submitted limiting instructions are strongly suggested. United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988). The court may advise the jury that demonstrative evidence will not be sent back to the jury room.

(For 2008 version see below).

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2008 Version

Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, or other underlying evidence in the case. Those charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the books, records or other underlying evidence.

Committee Comments

(For 2006 version see below)

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2006 Version

Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, or other underlying evidence in the case. Those charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the books, records or other underlying evidence.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.02 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 4.18 (1997); United States v. Lewis, 759 F.2d 1316, 1329 n.6 (8th Cir. 1985); United States v. Diez, 515 F.2d 892, 905-06 (5th Cir. 1975). See generally 5 Weinstein's Evidence ¶ 1006 (1978).

For 2000 version see below

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2000 Version

4.11 DEMONSTRATIVE SUMMARIES NOT RECEIVED IN EVIDENCE

Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, or other underlying evidence in the case. Those charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the books, records or other underlying evidence.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.02 (4th ed. 1992); Ninth Cir. Crim. Jury Instr. 4.17 (1997); United States v. Lewis, 759 F.2d 1316, 1329 n.6 (8th Cir.), cert. denied, 474 U.S. 994 (1985); United States v. Diez, 515 F.2d 892, 905-06 (5th Cir. 1975), cert. denied, 423 U.S. 1052 (1976). See generally 5 Weinstein's Evidence ¶ 1006 (1978).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.12
RULE 1006 SUMMARIES

FORECITE National™ Materials Related To This Instruction:

25.3 Charts, Summaries, Etc.

You will remember that certain [schedules] [summaries] [charts] were admitted in evidence. You may use those [schedules] [summaries] [charts] as evidence, even though the underlying documents and records are not here.¹ [However, the [accuracy] [authenticity] of those [schedules] [summaries] [charts] has been challenged. It is for you to decide how much weight, if any, you will give to them. In making that decision, you should consider all of the testimony you heard about the way in which they were prepared.]²

Notes on Use

1. This instruction is not necessary if a stipulation instruction has been given on the subject.

2. The bracketed portion of this instruction should be given if the accuracy or authenticity has been challenged.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 3.16 (1999). See generally FRE 1006, 1008(c); 5 Weinstein's Evidence ¶¶ 1006, 1008 (1978); West Key # "Criminal Law" 673(a), 858(3).

This instruction is based on Rule 1006 of the Federal Rules of Evidence, which permits summaries to be admitted as evidence without admission of the underlying documents as long as the opposing party has had an opportunity to examine and copy the documents at a reasonable time and place and if those underlying documents would be admissible. Ford Motor Co. v. Auto Supply Co., Inc., 661 F.2d 1171, 1175-76 (8th Cir. 1981). The Rules contemplate that the summaries will not be admitted until the court has made a preliminary ruling as to their accuracy. See FRE 104; United States v. Robinson, 774 F.2d 261, 276 (8th Cir. 1985).

As Weinstein notes, and as Rule 1008(c) makes clear, the trial judge makes only a preliminary determination regarding a Rule 1006 summary, the accuracy of which is challenged. The admission is within the sound discretion of the trial judge. United States v. King, 616 F.2d 1034, 1041 (8th Cir. 1980). If the determination is to admit the summary, the jury remains the final arbiter with respect to how much weight it will be given and should be instructed accordingly.

The "voluminous" requirement of Rule 1006 does not require that it literally be impossible to examine all the underlying records, but only that in-court examination would be an inconvenience. United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988).

Charts and diagrams admitted under Rule 1006 may be sent to the jury at the district court's discretion. Possick, 849 F.2d at 339; United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir. 1986); United States v. Robinson, 774 F.2d at 275.

When this type of exhibit is sent to the jury, a limiting instruction is appropriate, but failure to give an instruction on the use of charts is not reversible error. Possick, 849 F.2d at 340.

There may be cases in which a variety of summaries are before the jury, some being simply demonstrative evidence, some being unchallenged Rule 1006 summaries, and some being challenged Rule 1006 summaries. In that situation, or any variant thereof, it will be necessary for the trial court to distinguish between the various items, probably by exhibit number, and to frame an instruction which makes the appropriate distinctions.

(For 2008 version see below).

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

2008 Version

You will remember that certain [schedules] [summaries] [charts] were admitted in evidence. You may use those [schedules] [summaries] [charts] as evidence, even though the underlying documents and records are not here.¹ [However, the [accuracy] [authenticity] of those [schedules] [summaries] [charts] has been challenged. It is for you to decide how much weight, if any, you will give to them. In making that decision, you should consider all of the testimony you heard about the way in which they were prepared.]²

Notes on Use

1. This instruction is not necessary if a stipulation instruction has been given on the subject.

2. The bracketed portion of this instruction should be given if the accuracy or authenticity has been challenged.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 3.16 (1999). See generally FRE 1006, 1008(c); 5 Weinstein's Evidence ¶¶ 1006, 1008 (1978); West Key # "Criminal Law" 673(a), 858(3).

When this type of exhibit is sent to the jury, a limiting instruction is appropriate, but failure to give an instruction on the use of charts is not reversible error. Possick, 849 F.2d at 340.

(For 2006 version see below)

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2006 Version

You will remember that certain [schedules] [summaries] [charts] were admitted in evidence. You may use those [schedules] [summaries] [charts] as evidence, even though the underlying documents and records are not here.1 [However, the [accuracy] [authenticity] of those [schedules] [summaries] [charts] has been challenged. It is for you to decide how much weight, if any, you will give to them. In making that decision, you should consider all of the testimony you heard about the way in which they were prepared.]2

Notes on Use

1. This instruction is not necessary if a stipulation instruction has been given on the subject.

2. The bracketed portion of this instruction should be given if the accuracy or authenticity has been challenged.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 3.16 (1999). See generally FRE 1006, 1008(c); 5 Weinstein's Evidence ¶¶ 1006, 1008 (1978); West Key # "Criminal Law" 673(a), 858(3).

When this type of exhibit is sent to the jury, a limiting instruction is appropriate, but failure to give an instruction on the use of charts is not reversible error. Possick, 849 F.2d at 340.

For 2000 version see below

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2000 Version

4.12 RULE 1006 SUMMARIES

You will remember that certain [schedules] [summaries] [charts] were admitted in evidence. You may use those [schedules] [summaries] [charts] as evidence, even though the underlying documents and records are not here.1 [However, the [accuracy] [authenticity] of those [schedules] [summaries] [charts] has been challenged. It is for you to decide how much weight, if any, you will give to them. In making that decision, you should consider all of the testimony you heard about the way in which they were prepared.]2

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 3.16 (1999). See generally FRE 1006, 1008(c); 5 Weinstein's Evidence ¶¶ 1006, 1008 (1978); West Key # "Criminal Law" 673(a), 858(3).

As Weinstein notes, and as Rule 1008(c) makes clear, the trial judge makes only a preliminary determination regarding a Rule 1006 summary, the accuracy of which is challenged. The admission is within the sound discretion of the trial judge. United States v. King, 616 F.2d 1034, 1041 (8th Cir.), cert. denied, 446 U.S. 969 (1980). If the determination is to admit the summary, the jury remains the final arbiter with respect to how much weight it will be given and should be instructed accordingly.

When this type of exhibit is sent to the jury, a limiting instruction is appropriate, but failure to give an instruction on the use of charts is not reversible error. Possick, 849 F.2d at 340.

Notes on Use

1. This instruction is not necessary if a stipulation instruction has been given on the subject.

2. The bracketed portion of this instruction should be given if the accuracy or authenticity has been challenged.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.13
SPECIFIC INFERENCES¹

[[(Insert fact deduced) is an element of the offense of (describe offense), which must be proved beyond a reasonable doubt.]² If you find proof beyond a reasonable doubt that (insert fact established), that is evidence from which you may, but are not required to, find or infer that (insert fact deduced).]³

Notes on Use

1. This is a very generalized format. Requests for inference instructions may be made by the government or the defense. If an inference instruction is to be given, effort should be made to more specifically tailor it to the given situation.

2. This admonition may be necessary if this instruction is not given in proximity to the elements instruction.

3. Definitions or further cautionary instructions may be helpful or required. See, e.g., Barnes v. United States, 412 U.S. 837, 840 n.3 (1973). United States v. Johnson, 563 F.2d 936, 940 n.2 (8th Cir. 1977) and 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 59.16 (5th ed. 2000) on the inferences arising from possession of recently stolen property; United States v. Hayes, 631 F.2d 593, 594 (8th Cir. 1980) and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 52.05 (5th ed. 2000) on the inferences arising from the possession of recently stolen mail; United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979), on the inferences arising from the possession of property recently purchased in another state.

Committee Comments

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, 745, 778(1)-(11), 782(7).

An instruction advising the jury that it may make reasonable inferences is included in the general charges on evidence at Instructions 1.01 and 3.03, supra.

An instruction directing the jury's attention to a specific inference should be given only when a) there is a specific inference at issue supported by the evidence; b) it is one which is specifically recognized by common law, judicial precedent or statute and c) it has been requested.

Many of the inferences recognized by common law were and are still called "presumptions." However, if used in an instruction, these "presumptions" must be phrased in terms of a permissive inference. Sandstrom v. Montana, 442 U.S. 510 (1979).

Examples of inferences recognized at common law include the inferences which may be drawn from the possession of recently stolen property, Barnes v. United States, 412 U.S. 837 (1973) (knowledge); United States v. Johnson, 563 F.2d 936, 940-41 (8th Cir. 1977) (knowledge and participation), including recently stolen mail, United States v. Hayes, 631 F.2d 593, 594 (8th Cir. 1980) and United States v. Bloom, 482 F.2d 1162, 1163-66 (8th Cir. 1973) (knowledge it was stolen from the mail); and possession in a state other than the state in which the property had been recently purchased, United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979) (transportation), or stolen, United States v. Mitchell, 558 F.2d 1332, 1335-36 (8th Cir. 1977) (transportation).

These also include inferences which may be drawn from false exculpatory statements (Instruction 4.15, infra) and failure to produce certain witnesses under certain conditions (Instruction 4.16, infra). Other common law inferences on which instructions may be proper include "presumptions of regularity." See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.06 (5th ed. 2000); United States v. Rucker, 435 F.2d 950, 952-53 (8th Cir. 1971).

Instructions on inferences are most helpful when they involve inferences which the law allows which may not be readily apparent to the lay person, such as advising the jury that the law allows mailing to be established by proof of business custom in a mail fraud case. See Instruction 6.18.1341, infra. However, instructions on inferences based solely on common sense and experience have been discouraged. The inference of consciousness of guilt which may be drawn from flight is one example. The giving of an instruction on that inference has always been limited to very narrow circumstances, United States v. White, 488 F.2d 660, 661-62 (8th Cir. 1973), and has recently been altogether discouraged. See United States v. McQuarry, 726 F.2d 401, 403 (8th Cir. 1984) (McMillian, J. concurring). However, an instruction limiting such evidence to the determination of consciousness of guilt along the lines of Instruction 4.09, supra, may in some cases be appropriate.

Statutory inferences are subject to the test whether it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. Leary v. United States, 395 U.S. 6, 36 (1969); United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir. 1978).

An example of a statutory inference is found in 18 USC 659 (bills of lading constitute prima facie evidence of the origin and destination of a shipment). United States v. Franklin, 568 F.2d at 1157. See also Notes 4, Instructions 6.18.659A and 6.18.659B, infra. Another example is found in 26 USC 6064 (an individual's signature on an income tax return is prima facie evidence that the return was signed by him). United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969). See also Instructions 6.26.7201 and 6.26.7206, infra; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.22 (5th ed. 2000). A further example is found in 18 USC 892b, listing the four factors which constitute prima facie evidence that a loan is extortionate. United States v. DeVincent, 546 F.2d 452, 454-55 (1st Cir. 1976).

Other examples of statutory inferences are found in 21 USC 174 (knowledge of importation can be inferred from possession of heroin and opium (but not cocaine), Turner v. United States, 396 U.S. 398 (1970)), and in 26 USC 5601(b)(2) ("possession" and "carrying on" can be inferred from the defendant's unexplained presence at a still. United States v. Gainey, 380 U.S. 63 (1965). But cf. United States v. Romano, 382 U.S. 136 (1965)).

There is some debate on the propriety of instructing the jury on inferences. For the views of an American Bar Association committee, see 120 F.R.D. 299, 315-20 (1988).

(For 2008 version see below).

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2008 Version

[[(Insert fact deduced) is an element of the offense of (describe offense), which must be proved beyond a reasonable doubt.]² If you find proof beyond a reasonable doubt that (insert fact established), that is evidence from which you may, but are not required to, find or infer that (insert fact deduced).]³

Notes on Use

2. This admonition may be necessary if this instruction is not given in proximity to the elements instruction.

Committee Comments

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, 745, 778(1)-(11), 782(7).

An instruction advising the jury that it may make reasonable inferences is included in the general charges on evidence at Instructions 1.01 and 3.03, supra.

Examples of inferences recognized at common law include the inferences which may be drawn from the possession of recently stolen property, Barnes v. United States, 412 U.S. 837 (1973) [knowledge]; United States v. Johnson, 563 F.2d 936, 940-41 (8th Cir. 1977) [knowledge and participation], including recently stolen mail, United States v. Hayes, 631 F.2d 593, 594 (8th Cir. 1980) and United States v. Bloom, 482 F.2d 1162, 1163-66 (8th Cir. 1973) [knowledge it was stolen from the mail]; and possession in a state other than the state in which the property had been recently purchased, United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979) [transportation], or stolen, United States v. Mitchell, 558 F.2d 1332, 1335-36 (8th Cir. 1977) [transportation].

An example of a statutory inference is found in 18 USC 659 [bills of lading constitute prima facie evidence of the origin and destination of a shipment]. United States v. Franklin, 568 F.2d at 1157. See also Notes 4, Instructions 6.18.659A and 6.18.659B, infra. Another example is found in 26 USC 6064 [an individual's signature on an income tax return is prima facie evidence that the return was signed by him]. United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969). See also Instructions 6.26.7201 and 6.26.7206, infra; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.22 (5th ed. 2000). A further example is found in 18 USC 892b, listing the four factors which constitute prima facie evidence that a loan is extortionate. United States v. DeVincent, 546 F.2d 452, 454-55 (1st Cir. 1976).

Other examples of statutory inferences are found in 21 USC 174 [knowledge of importation can be inferred from possession of heroin and opium (but not cocaine), Turner v. United States, 396 U.S. 398 (1970)], and in 26 USC 5601(b)(2) ["possession" and "carrying on" can be inferred from the defendant's unexplained presence at a still. United States v. Gainey, 380 U.S. 63 (1965). But cf. United States v. Romano, 382 U.S. 136 (1965)].

There is some debate on the propriety of instructing the jury on inferences. For the views of an American Bar Association committee, see 120 F.R.D. 299, 315-20 (1988).

(For 2006 version see below)

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

2006 Version

[[(Insert fact deduced) is an element of the offense of (describe offense), which must be proved beyond a reasonable doubt.]2 If you find proof beyond a reasonable doubt that (insert fact established), that is evidence from which you may, but are not required to, find or infer that (insert fact deduced).]3

Notes on Use

2. This admonition may be necessary if this instruction is not given in proximity to the elements instruction.

Committee Comments

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, 745, 778(1)-(11), 782(7).

An instruction advising the jury that it may make reasonable inferences is included in the general charges on evidence at Instructions 1.01 and 3.03, supra.

Examples of inferences recognized at common law include the inferences which may be drawn from the possession of recently stolen property, Barnes v. United States, 412 U.S. 837 (1973) [knowledge]; United States v. Johnson, 563 F.2d 936, 940-41 (8th Cir. 1977) [knowledge and participation], including recently stolen mail, United States v. Hayes, 631 F.2d 593, 594 (8th Cir. 1980) and United States v. Bloom, 482 F.2d 1162, 1163-66 (8th Cir. 1973) [knowledge it was stolen from the mail]; and possession in a state other than the state in which the property had been recently purchased, United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979) [transportation], or stolen, United States v. Mitchell, 558 F.2d 1332, 1335-36 (8th Cir. 1977) [transportation].

There is some debate on the propriety of instructing the jury on inferences. For the views of an American Bar Association committee, see 120 F.R.D. 299, 315-20 (1988).

For 2000 version see below

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2000 Version

4.13 SPECIFIC INFERENCES1

[[(Insert fact deduced) is an essential element of the offense of (describe offense), which must be proved beyond a reasonable doubt.]2 If you find proof beyond a reasonable doubt that (insert fact established), that is evidence from which you may, but are not required to, find or infer that (insert fact deduced).]3

Committee Comments

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, 745, 778(1)-(11), 782(7).

An instruction advising the jury that it may make reasonable inferences is included in the general charges on evidence at Instructions 1.01 and 3.03, supra.

Examples of inferences recognized at common law include the inferences which may be drawn from the possession of recently stolen property, Barnes v. United States, 412 U.S. 837 (1973) [knowledge]; United States v. Johnson, 563 F.2d 936, 940-41 (8th Cir. 1977), cert. denied, 434 U.S. 1021 (1978) [knowledge and participation], including recently stolen mail, United States v. Hayes, 631 F.2d 593, 594 (8th Cir. 1980) and United States v. Bloom, 482 F.2d 1162, 1163-66 (8th Cir. 1973) [knowledge it was stolen from the mail]; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 44.05 (4th ed. 1990), and possession in a state other than the state in which the property had been recently purchased, United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979), cert. denied, 444 U.S. 1090 (1980) [transportation], or stolen, United States v. Mitchell, 558 F.2d 1332, 1335-36 (8th Cir. 1977) [transportation].

These also include inferences which may be drawn from false exculpatory statements (No. 4.15, infra) and failure to produce certain witnesses under certain conditions (No. 4.16, infra). Other common law inferences on which instructions may be proper include "presumptions of regularity." See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.06 (4th ed. 1992); United States v. Rucker, 435 F.2d 950, 952-53 (8th Cir. 1971).

Instructions on inferences are most helpful when they involve inferences which the law allows which may not be readily apparent to the lay person, such as advising the jury that the law allows mailing to be established by proof of business custom in a mail fraud case. See No. 6.18.1341, infra. However, instructions on inferences based solely on common sense and experience have been discouraged. The inference of consciousness of guilt which may be drawn from flight is one example. The giving of an instruction on that inference has always been limited to very narrow circumstances, United States v. White, 488 F.2d 660, 661-62 (8th Cir. 1973), and has recently been altogether discouraged. See United States v. McQuarry, 726 F.2d 401, 403 (8th Cir. 1984) (McMillian, J. concurring). However, an instruction limiting such evidence to the determination of consciousness of guilt along the lines of No. 4.09, supra, may in some cases be appropriate.

An example of a statutory inference is found in 18 USC 659 [bills of lading constitute prima facie evidence of the origin and destination of a shipment]. United States v. Franklin, 568 F.2d at 1157. See also Instructions 6.18.659A, Note 4, and 6.18.659B Note 4, infra; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 31.07 (4th ed. 1990). Another example is found in 26 USC 6064 [an individual's signature on an income tax return is prima facie evidence that the return was signed by him]. United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied, 397 U.S. 1007 (1970). See also Nos. 6.26.7201 and 6.26.7206, infra; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.22 (4th ed. 1990). A further example is found in 18 USC 892b, listing the four factors which constitute prima facie evidence that a loan is extortionate. United States v. DeVincent, 546 F.2d 452, 454-55 (1st Cir. 1976), cert. denied, 431 U.S. 903 (1977).

Other examples of statutory inferences are found in 21 USC 174 [knowledge of importation can be inferred from possession of heroin and opium (but not cocaine), Turner v. United States, 396 U.S. 398 (1970)], and in 26 USC 5601(b)(2) ["possession" and "carrying on" can be inferred from defendant's unexplained presence at a still. United States v. Gainey, 380 U.S. 63 (1965). But cf. United States v. Romano, 382 U.S. 136 (1965)].

There is some debate on the propriety of instructing the jury on inferences. For the views of an American Bar Association committee, see 120 F.R.D. 299, 315-320 (1988).

Notes on Use

2. This admonition may be necessary if this instruction is not given in proximity to the elements instruction.

3. Definitions or further cautionary instructions may be helpful or required. See, e.g., Barnes v. United States, 412 U.S. 837, 840 n.3 (1973). United States v. Johnson, 563 F.2d 936, 940 n.2 (8th Cir. 1977), cert. denied, 434 U.S. 1021 (1978) and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 50.16 (4th ed. 1990) on the inferences arising from possession of recently stolen property; United States v. Hayes, 631 F.2d 593, 594 (8th Cir. 1980) and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 44.05 (4th ed. 1990) on the inferences arising from the possession of recently stolen mail; United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979), cert. denied, 444 U.S. 1090 (1980) on the inferences arising from the possession of property recently purchased in another state.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.14
SILENCE IN THE FACE OF ACCUSATION

FORECITE National™ Materials Related To This Instruction:

25.14 Adoptive Admissions

[Evidence has been introduced that a statement accusing the defendant of the crime charged in the indictment was made, and that the defendant did not [deny the accusation] [[object to] [contradict] the statement]]. If you find that the defendant was present and actually heard and understood the statement, and that it was made under such circumstances that the defendant would be expected to [deny] [contradict] [object to] it if it was not true, then you may consider whether the defendant's silence was an admission of the truth of the statement.]¹

Notes on Use

1. In the previous edition, this Committee joined in the comments to Ninth Cir. Crim. Jury Instr. 4.2 (1997) and Federal Judicial Center, Pattern Criminal Jury Instructions § 45 (1988) recommending that no instruction on this topic be given. However, without such an instruction, the jury is given no guidance on the important findings it must make before it can consider silence to be an admission. Accordingly, if requested by the defendant, the jury may be instructed on the elements it must find before it can find evidence of the defendant's silence to be an admission.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.05 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 3.03 (1999); United States v. Carter, 760 F.2d 1568, 1580 n.5 (11th Cir. 1985). See generally West Key # "Criminal Law" 407(1), (2), 736(2), 781(7).

The general rule is that

when a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution as evidence of his acquiescence in its truth * * * [if made] under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.

Arpan v. United States, 260 F.2d 649, 655 (8th Cir. 1958) and cases cited therein. See also United States v. Mitchell, 558 F.2d 1332, 1334-35 (8th Cir. 1977). Since the adoption of the Federal Rules of Evidence, such evidence has come in as an adoptive admission under FRE 801(d)(2)(B). See United States v. Carter, 760 F.2d at 1579.

Whether all the elements necessary to give such silence capacity to be admitted as an implied or adoptive statement are preliminary questions for the court. Arpan, 260 F.2d at 654; Carter, 760 F.2d at 1579-80. If the court allows the evidence, whether those elements have been proved becomes a jury question. Arpan, 260 F.2d at 655; Carter, 760 F.2d at 1580 n.5.

Post-arrest silence by a defendant after Miranda warnings have been given is inadmissible against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). If a defendant gives a statement, however, his silence as to other matters may be admitted. Anderson v. Charles, 447 U.S. 404 (1980); see United States v. Mitchell, 558 F.2d 1332, 1334-35 (8th Cir. 1977). A defendant's pre-arrest silence may be admitted, Jenkins v. Anderson, 447 U.S. 231 (1980) as well as silence after arrest but prior to warnings. Fletcher v. Weir, 455 U.S. 603 (1982).

(For 2008 version see below).

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

2008 Version

[Evidence has been introduced that a statement accusing the defendant of the crime charged in the indictment was made, and that the defendant did not [deny the accusation] [[object to] [contradict] the statement]]. If you find that the defendant was present and actually heard and understood the statement, and that it was made under such circumstances that the defendant would be expected to [deny] [contradict] [object to] it if it was not true, then you may consider whether the defendant's silence was an admission of the truth of the statement.]¹

Notes on Use

Committee Comments

The general rule is that

when a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution as evidence of his acquiescence in its truth * * * [if made] under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.

(For 2006 version see below)

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2006 Version

[Evidence has been introduced that a statement accusing the defendant of the crime charged in the indictment was made, and that the defendant did not [deny the accusation] [[object to] [contradict] the statement]]. If you find that the defendant was present and actually heard and understood the statement, and that it was made under such circumstances that the defendant would be expected to [deny] [contradict] [object to] it if it was not true, then you may consider whether the defendant's silence was an admission of the truth of the statement.]1

Notes on Use

Committee Comments

The general rule is that

when a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution as evidence of his acquiescence in its truth * * * [if made] under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.

For 2000 version see below

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2000 Version

4.14 SILENCE IN THE FACE OF ACCUSATION

[Evidence has been introduced that a statement accusing the defendant of the crime charged in the indictment was made, and that the defendant did not [deny the accusation] [[object to] [contradict] the statement]]. If you find that the defendant was present and actually heard and understood the statement, and that it was made under such circumstances that the defendant would be expected to [deny] [contradict] [object to] it if it was not true, then you may consider whether the defendant's silence was an admission of the truth of the statement.]1

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.05 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 3.03 (1999); United States v. Carter, 760 F.2d 1568, 1580 n.5 (11th Cir. 1985). See generally West Key # "Criminal Law" 407(1), (2), 736(2), 781(7).

The general rule is that

when a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution as evidence of his acquiescence in its truth * * * [if made] under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.

Arpan v. United States, 260 F.2d 649, 655 (8th Cir. 1958) and cases cited therein. See also United States v. Mitchell, 558 F.2d 1332, 1334-35 (8th Cir. 1977). Since the adoption of the Federal Rules of Evidence, such evidence has come in as an adoptive admission under FRE 801(d)(2)(B). See United States v. Carter, 760 F.2d at 1579.

Whether all the elements necessary to give such silence capacity to be admitted as an implied or adoptive statement are preliminary questions for the court. Arpan, 260 F.2d at 654; Carter, 760 F.2d at 1579-580. If the court allows the evidence, whether those elements have been proved becomes a jury question. Arpan, 260 F.2d at ___; Carter, 760 F.2d at 1580 n.5.

Post-arrest silence by a defendant after Miranda warnings have been given is inadmissible against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). If a defendant gives a statement, however, his silence as to other matters may be admitted. Anderson v. Charles, 447 U.S. 404 (1980); see United States v. Mitchell, 558 F.2d 1332, 1334-35 (8th Cir. 1977). A defendant's pre-arrest silence may be admitted, Jenkins v. Anderson, 447 U.S. 231 (1980) as well as silence after arrest but prior to warnings. Fletcher v. Weir, 455 U.S. 603 (1982).

Notes on Use

1. In the previous edition, this Committee joined in the comments to Ninth Cir. Crim. Jury Instr. 4.2 (1997) and Federal Judicial Center, Pattern Criminal Jury Instructions § 45 (1988) recommending that no instruction on this topic be given. However, without such an instruction, the jury is given no guidance on the important findings it must make before it can consider silence to be an admission. Accordingly, if requested by defendant, the jury may be instructed on the elements it must find before it can find evidence of the defendant's silence to be an admission.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.15
FALSE EXCULPATORY STATEMENTS

FORECITE National™ Materials Related To This Instruction:

34.4 False Statements

(No instruction recommended.)

Committee Comments

Although the Committee does not normally recommend an instruction on this issue, the following instruction may, in appropriate circumstances, be given:

When a defendant voluntarily and intentionally offers an explanation, or makes some statement before trial tending to show his innocence, and this explanation or statement is later shown to be false, you may consider whether this evidence points to a consciousness of guilt. The significance to be attached to any such evidence is a matter for you to determine.

The instruction is aimed at pretrial fabrications, and is not generally appropriate for casting doubt on a defendant’s trial testimony. United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995).

If the defendant denies making the statement, or denies that it is exculpatory, this language should be changed to allow the jury to decide whether or not the statement was made or whether or not it was exculpatory. United States v. Holbert, 578 F.2d 128, 130 (5th Cir. 1978).

If the falsity of the exculpatory statement is controverted, this language should be changed to allow the jury to find whether or not the statement was false. See United States v. Pringle, 576 F.2d 1114, 1120 n.6 (5th Cir. 1978).

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.06 (5th ed. 2000); United States v. Wells, 702 F.2d 141, 144 n.2 (8th Cir. 1983); United States v. Turner, 551 F.2d 780, 783 (8th Cir. 1977). See generally West Key # "Criminal Law," 351(10), 778(10), 781(6), 781(8).

See also Committee Comments, Instruction 4.13, supra, on specific inferences.

False exculpatory statements are properly admissible as substantive evidence tending to show consciousness of guilt. United States v. Hudson, 717 F.2d 1211, 1215 (8th Cir. 1983) and cases cited therein. This Circuit has repeatedly held that an instruction of this nature "is properly given when a defendant . . . offers an exculpatory explanation which is later proven to be false." Wells, 702 F.2d at 144; United States v. Hudson, 717 F.2d 1211 (8^th Cir. 1983); see also Rizzo v. United States, 304 F.2d 810, 830 (8th Cir. 1962), and cases cited therein. See further, Wilson v. United States, 162 U.S. 613, 620-21 (1896) indicating that such conduct formerly gave rise to a "presumption" of guilt.

Wells also held that such an instruction does not unfairly penalize the criminal defendant who, upon confrontation, denies the crime rather than remain silent. 702 F.2d at 144. Hudson further held such an instruction proper because it permits the jury to attach as much or as little significance to the statement as it chooses. 717 F.2d at 1215.

While general denials of guilt later contradicted are not considered exculpatory statements, any other exculpatory statement which is contradicted by evidence at trial justifies the giving of this kind of jury instruction. United States v. McDougald, 650 F.2d 532, 533 (4th Cir. 1981) (citing United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir. 1976)).

The comments to Federal Judicial Center, Pattern Criminal Jury Instructions § 44 (1988), Seventh Circuit Federal Jury Instructions: Criminal § 3.22 (1999) and Ninth Cir. Crim. Jury Instr. 4.3 (1997) recommend that no instruction on this subject be given and that the subject be left to argument of counsel. However, the courts in many circuits have approved the giving of an instruction of this nature. See, in addition to the Eighth Circuit cases cited above, United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982); United States v. McDougald, 650 F.2d at 533 [noting that such instructions "have long been approved by the courts" (citing Wilson)]; United States v. Boekelman, 594 F.2d 1238, 1240-41 (9th Cir. 1979); United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir. 1978).

(For 2008 version see below).

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2008 Version

[No instruction recommended.]

Committee Comments

Although the Committee does not normally recommend an instruction on this issue, the following instruction may, in appropriate circumstances, be given:

When a defendant voluntarily and intentionally offers an explanation, or makes some statement before trial tending to show his innocence, and this explanation or statement is later shown to be false, you may consider whether this evidence points to a consciousness of guilt. The significance to be attached to any such evidence is a matter for you to determine.

The instruction is aimed at pretrial fabrications, and is not generally appropriate for casting doubt on a defendant’s trial testimony. United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995).

See also Committee Comments, Instruction 4.13, supra, on specific inferences.

(For 2006 version see below)

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

2006 Version

[No instruction recommended.]

Committee Comments

Although the Committee does not normally recommend an instruction on this issue, the following instruction may, in appropriate circumstances, be given:

When a defendant voluntarily and intentionally offers an explanation, or makes some statement before trial tending to show his innocence, and this explanation or statement is later shown to be false, you may consider whether this evidence points to a consciousness of guilt. The significance to be attached to any such evidence is a matter for you to determine.

The instruction is aimed at pretrial fabrications, and is not generally appropriate for casting doubt on a defendant’s trial testimony. United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995).

See also Committee Comments, Instruction 4.13, supra, on specific inferences.

False exculpatory statements are properly admissible as substantive evidence tending to show consciousness of guilt. United States v. Hudson, 717 F.2d 1211, 1215 (8th Cir. 1983) and cases cited therein. This Circuit has repeatedly held that an instruction of this nature "is properly given when a defendant . . . offers an exculpatory explanation which is later proven to be false." Wells, 702 F.2d at 144; United States v. Hudson, 717 F.2d 1211 (8th Cir. 1983); see also Rizzo v. United States, 304 F.2d 810, 830 (8th Cir. 1962), and cases cited therein. See further, Wilson v. United States, 162 U.S. 613, 620-21 (1896) indicating that such conduct formerly gave rise to a "presumption" of guilt.

For 2000 version see below

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2000 Version

4.15 FALSE EXCULPATORY STATEMENTS

[No instruction recommended.]

Committee Comments

Although the Committee does not normally recommend an instruction on this issue, the following instruction may, in appropriate circumstances, be given:

When a defendant voluntarily and intentionally offers an explanation, or makes some statement before trial tending to show his innocence, and this explanation or statement is later shown to be false, you may consider whether this evidence points to a consciousness of guilt. The significance to be attached to any such evidence is a matter for you to determine.

The instruction is aimed at pretrial fabrications, and is not generally appropriate for casting doubt on a defendant’s trial testimony. United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995).

If the falsity of the exculpatory statement is controverted, this language should be changed to allow the jury to find whether or not the statement was false. See United States v. Pringle, 576 F.2d 1114, 1120 n.6 (5th Cir. 1978).

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.06 (4th ed. 1992); United States v. Wells, 702 F.2d 141, 144 n.2 (8th Cir. 1983); United States v. Turner, 551 F.2d 780, 783 (8th Cir.), cert. denied, 431 U.S. 942 (1977). See generally West Key # "Criminal Law," 351(10), 778(10), 781(6), 781(8).

See also Committee Comments, Instruction 4.13, supra, on specific inferences.

False exculpatory statements are properly admissible as substantive evidence tending to show consciousness of guilt. United States v. Hudson, 717 F.2d 1211, 1215 (8th Cir. 1983) and cases cited therein. This Circuit has repeatedly held that an instruction of this nature "is properly given when a defendant . . . offers an exculpatory explanation which is later proven to be false." Wells, 702 F.2d at 144; Hudson, 717 F.2d 1211; see also Rizzo v. United States, 304 F.2d 810, 830 (8th Cir.), cert. denied, 371 U.S. 890 (1962), and cases cited therein. See further, Wilson v. United States, 162 U.S. 613, 620-21 (1896) indicating that such conduct formerly gave rise to a "presumption" of guilt.

While general denials of guilt later contradicted are not considered exculpatory statements, any other exculpatory statement which is contradicted by evidence at trial justifies the giving of this kind of jury instruction. United States v. McDougald, 650 F.2d 532, 533 (5th Cir. 1981) (citing United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir.), cert. denied, 429 U.S. 846 (1976)).

The comments to Federal Judicial Center, Pattern Criminal Jury Instructions § 44 (1988), Seventh Circuit Federal Jury Instructions: Criminal § 3.22 (1999) and Ninth Cir. Crim. Jury Instr. 4.3 (1997) recommend that no instruction on this subject be given and that the subject be left to argument of counsel. However, the courts in many circuits have approved the giving of an instruction of this nature. See, in addition to the Eighth Circuit cases cited above, United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982), cert. denied, 464 U.S. 828 (1983); United States v. McDougald, 650 F.2d at 533 [noting that such instructions "have long been approved by the courts" (citing Wilson)]; United States v. Boekelmon, 594 F.2d 1238, 1240-41 (9th Cir. 1979); United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir. 1978).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.16
MISSING WITNESS

FORECITE National™ Materials Related To This Instruction:

36.2 Missing Witness

(No model instruction provided)¹

Notes on Use

1. Because of the limited circumstances in which a missing witness instruction would be appropriate, no model instruction is provided here. With respect to argument of a party's failure to call a particular witness, the Committee recommends that the court review the subject with counsel before argument, on the record but outside the jury's presence, to determine whether such an argument will be permitted and if so what limits to place on it. But note, neither argument nor an instruction on this subject should be permitted as against a defendant who has offered no evidence.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 4.16 (formerly 4.15 (1997)). See generally West Key # "Criminal Law" 788. Examples of missing witness instructions may be found in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.15 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 39 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.24 (1999).

The rule which forms the basis of the "absent witness" instruction provides that "if a party has it particularly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." United States v. Anders, 602 F.2d 823, 825 (8th Cir. 1979) (quoting from Graves v. United States, 150 U.S. 118, 121 (1893)). However it is well settled that the propriety of giving this instruction is within the discretion of the trial court. United States v. Williams, 604 F.2d 1102, 1117 (8th Cir. 1979); Anders; United States v. Johnson, 562 F.2d 515, 517 (8th Cir. 1977); United States v. Kirk, 534 F.2d 1262, 1280 (8th Cir. 1976); United States v. Williams, 481 F.2d 735, 738 (8th Cir. 1973).

It has also long been held that, upon a request for a jury instruction, the inference is one to be applied with caution and

that it is not one which is abstractly entitled to be given application; but that it is to be accorded opportunity for significance and effect only when there has been shown a factual area in which it can logically operate.

Wilson v. United States, 352 F.2d 889, 892 (8th Cir. 1965), quoted with approval in United States v. Higginbotham, 451 F.2d 1283, 1286 (8th Cir. 1971).

This is because the applicable rule in this Circuit is that:

Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.

Williams, 481 F.2d at 737; United States v. Mosby, 422 F.2d 72, 74 (8th Cir. 1970).

The instruction has been held properly refused where the ability to produce the witness was not solely or otherwise in the power of the government such as where a witness could not testify due to illness, Williams, 604 F.2d at 1117; where the witness was not subpoenaed by either party, Williams, 604 F.2d at 1120; Higginbotham, 451 F.2d at 1286; where the witness was argued to be "unavailable" because he worked for the government, Anders, 602 F.2d at 825; where the witness/informant's whereabouts were no longer known to the government, Johnson, 562 F.2d at 517; where there was no showing that the government possessed the sole power to produce the witnesses, Kirk, 534 F.2d at 1280; where the defendant made no motion to produce or attempt to subpoena the witness, Williams, 481 F.2d at 737.

Moreover, the instruction is not appropriate where the testimony of the witness would not "elucidate the transaction" such as where the testimony would be cumulative, United States v. Johnson, 467 F.2d 804, 808 (1st Cir. 1972), or where it would be irrelevant. United States v. Emalfarb, 484 F.2d 787 (7th Cir. 1973).

(For 2008 version see below).

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

2008 Version

[No model instruction provided]¹

Notes on Use

Committee Comments

It has also long been held that, upon a request for a jury instruction, the inference is one to be applied with caution and

that it is not one which is abstractly entitled to be given application; but that it is to be accorded opportunity for significance and effect only when there has been shown a factual area in which it can logically operate.

Wilson v. United States, 352 F.2d 889, 892 (8th Cir. 1965), quoted with approval in United States v. Higginbotham, 451 F.2d 1283, 1286 (8th Cir. 1971).

This is because the applicable rule in this Circuit is that:

Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.

Williams, 481 F.2d at 737; United States v. Mosby, 422 F.2d 72, 74 (8th Cir. 1970).

(For 2006 version see below)

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

2006 Version

[No model instruction provided]1

Committee Comments

See Ninth Cir. Crim. Jury Instr. 4.16 (1997). See generally West Key # "Criminal Law" 788. Examples of missing witness instructions may be found in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 14.15 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 39 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.24 (1999).

It has also long been held that, upon a request for a jury instruction, the inference is one to be applied with caution and

that it is not one which is abstractly entitled to be given application; but that it is to be accorded opportunity for significance and effect only when there has been shown a factual area in which it can logically operate.

Wilson v. United States, 352 F.2d 889, 892 (8th Cir. 1965), quoted with approval in United States v. Higginbotham, 451 F.2d 1283, 1286 (8th Cir. 1971).

This is because the applicable rule in this Circuit is that:

Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.

Williams, 481 F.2d at 737; United States v. Mosby, 422 F.2d 72, 74 (8th Cir. 1970).

For 2000 version see below

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

2000 Version

4.16 MISSING WITNESS

[No model instruction provided]1

Committee Comments

See Ninth Cir. Crim. Jury Instr. 4.15 (1997). See generally West Key # "Criminal Law" 788. Examples of missing witness instructions may be found in 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.15 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 39 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 3.24 (1999).

The rule which forms the basis of the "absent witness" instruction provides that "if a party has it particularly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." United States v. Anders, 602 F.2d 823, 825 (8th Cir. 1979) (quoting from Graves v. United States, 150 U.S. 118, 121 (1893)). However it is well settled that the propriety of giving this instruction is within the discretion of the trial court. United States v. Williams, 604 F.2d 1102, 1117 (8th Cir. 1979); Anders; United States v. Johnson, 562 F.2d 515, 517 (8th Cir. 1977); United States v. Kirk, 534 F.2d 1262, 1280 (8th Cir. 1976), cert. denied, 430 U.S. 906 (1977); United States v. Williams, 481 F.2d 735, 738 (8th Cir.), cert. denied, 414 U.S. 1026 (1973).

It has also long been held that, upon a request for a jury instruction, the inference is one to be applied with caution and

that it is not one which is abstractly entitled to be given application; but that it is to be accorded opportunity for significance and effect only when there has been shown a factual area in which it can logically operate.

Wilson v. United States, 352 F.2d 889, 892 (8th Cir. 1965), cert. denied, 383 U.S. 944 (1966) quoted with approval in United States v. Higginbotham, 451 F.2d 1283, 1286 (8th Cir. 1971).

This is because the applicable rule in this Circuit is that:

Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.

Williams, 481 F.2d at 737; United States v. Mosby, 422 F.2d 72, 74 (8th Cir.), cert. denied, 399 U.S. 914 (1970).

The instruction has been held properly refused where the ability to produce the witness was not solely or otherwise in the power of the government such as where a witness could not testify due to illness, Williams, 604 F.2d at 1117; where the witness was not subpoenaed by either party, Williams, 604 F.2d at 1120; Higginbotham, 451 F.2d at 1286; where the witness was argued to be "unavailable" because he worked for the government, Anders, 602 F.2d at 825; where the witness/informant's whereabouts were no longer known to the government, Johnson, 562 F.2d at 517; where there was no showing that the government possessed the sole power to produce the witnesses, Kirk, 534 F.2d at 1280; where defendant made no motion to produce or attempt to subpoena the witness, Williams, 481 F.2d at 737.

Moreover, the instruction is not appropriate where the testimony of the witness would not "elucidate the transaction" such as where the testimony would be cumulative, United States v. Johnson, 467 F.2d 804, 808 (1st Cir. 1972), cert. denied, 410 U.S. 909 (1973), or where it would be irrelevant. United States v. Emalfarb, 484 F.2d 787 (7th Cir.), cert. denied, 414 U.S. 1064 (1973).

Notes on Use

8TH CIRCUIT MODEL INSTRUCTIONS 2009

4.17
DIRECT AND CIRCUMSTANTIAL EVIDENCE

FORECITE National™ Materials Related To This Instruction:

25.12 Circumstantial Evidence

(See last paragraph of Instruction 1.03, supra.)

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 1.05 (1999); Ninth Cir. Crim. Jury Instr. 3.8 (formerly 1.5 (1997)); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997); United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976).

(For 2008 version see below).

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

2008 Version

[See last paragraph of Instruction 1.03, supra]

Committee Comments

(For 2006 version see below)

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

2006 Version

[See last paragraph of Instruction 1.03, supra]

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 12.04 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 1.05 (1999); Ninth Cir. Crim. Jury Instr. 3.8 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997); United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976).

For 2000 version see below

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

2000 Version

4.17 DIRECT AND CIRCUMSTANTIAL EVIDENCE

[See last paragraph of Instruction 1.03, supra]

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.04 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.07 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 1.05 (1999); Ninth Cir. Crim. Jury Instr. 1.5 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997); United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976), cert. denied, 430 U.S. 906 (1977).