9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
Go to Federal Model Instructions Table of Contents - Go to 9th Circuit Table of Contents

        Introductory Comment
        1.1     Duty Of Jury
        1.2     The Charge – Presumption Of Innocence
        1.3     What Is Evidence
        1.4     What Is Not Evidence
        1.5     Evidence For Limited Purpose
        1.6     Direct And Circumstantial Evidence
        1.7     Ruling On Objections
        1.8     Credibility Of Witnesses
        1.9     Conduct Of The Jury
        1.10   No Transcript Available To Jury
        1.11   Taking Notes
        1.12   Outline Of Trial
        1.13   Jury To Be Guided By Official English Translation/Interpretation
        1.13A Use of Interpreters in Court
        1.14   Separate Consideration For Each Defendant

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

It is within the district court's discretion to provide the jury with preliminary instructions including preliminary instructions regarding elements of the offenses charged. United States v. Aguon, 851 F.2d 1158, 1161 (9th Cir. 1988), overruled on other grounds, Evans v. United States, 504 U.S. 255 (1992). However, erroneous pretrial instructions can be the basis for appeal. Caution should therefore be used in giving preliminary instructions when there is a dispute as to applicable law. Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir. 1988). See also United States v. Hegwood, 977 F.2d 492, 495 (9th Cir. 1992) (absent defense objection, correct instruction at trial cured error in preliminary instruction), cert. denied, 508 U.S. 913 (1993).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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16.2 Conduct And Duty Of The Jury During Trial

16.3 Duty Of Jury As To The Evidence

Ladies and gentlemen: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. These are preliminary instructions. At the end of the trial I will give you more detailed instructions. Those instructions will control your deliberations.

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

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

This is a criminal case brought by the United States government. The government charges the defendant with [crime[s] charged]. The charge[s] against the defendant [is] [are] contained in the indictment. The indictment is simply the description of the charge[s] made by the government against the defendant; it is not evidence of anything.

[In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] which the government must prove to make its case: [supply brief statement of elements of crime[s]]. These instructions are preliminary and the instructions I will give at the end of the case will control.]

The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until proved guilty beyond a reasonable doubt. A defendant has the right to remain silent and never has to prove innocence or present any evidence.

The description of the offense given in this introduction instruction should not track statutory language but should be stated in plain language, avoiding the technical and repetitive language of the statute. Before giving the jury an elements instruction, counsel should be consulted.

See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 3.3 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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24.2 What Is Evidence

The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness;

(2) the exhibits which are to be received into evidence; and

(3) any facts to which all the lawyers stipulate.

Comment

The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:

1. Statements and arguments of the attorneys;

2. Questions and objections of the attorneys;

3. Testimony that I instruct you to disregard; and

4. Anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.   

The duty to make objections and the effect of rulings on objections are the subject of a separate instruction. Instruction 1.7 (Ruling on Objections). See also Instruction 3.7 (What is Not Evidence) and Comment.

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26.1 General Rules

Some evidence is admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

As a general rule, limiting instructions need only be given when requested and need not be given sua sponte by the court. United States v. McLennan, 563 F.2d 943, 947–48 (9th Cir. 1977), cert. denied, 435 U.S. 969 (1978). See also United States v. Beltran, 165 F.3d 1266, 1271-72 (9th Cir. 1999) (not plain error for court to fail to give limiting instructions regarding other act evidence), cert. denied, 120 S. Ct. 194 (1999); United States v. Palmer, 691 F.2d 921, 923 (9th Cir. 1982) (failure to give a limiting instruction sua sponte is generally not reversible error).

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25.12 Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact. You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.

See United States v. Gulino, 588 F.2d 256, 257–58 (9th Cir. 1978) (approving a similar instruction).

The law makes no distinction between the weight to be given to direct evidence and to circumstantial evidence. United States v. Ramirez–Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977). See also Payne v. Borg, 982 F.2d 335, 339 (9th Cir. 1992), cert. denied, 450 U.S. 934 (1993) (explaining that "circumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury's fact-finding function is concerned." (citation omitted.))

It may be helpful to include an illustrative example in the instruction:

By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may explain the water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

See also Instruction 3.8 (Direct and Circumstantial Evidence) for corresponding instruction to be given at the end of the case.

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16.14.3.5 No Inference From Rulings Of The Court: Cautionary Instruction

There are rules of evidence which control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer would have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence which I told you to disregard.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 27 Witness Credibility

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

1. The opportunity and ability of the witness to see or hear or know the things testified to;

2. The witness' memory;

3. The witness' manner while testifying;

4. The witness' interest in the outcome of the case and any bias or prejudice;

5. Whether other evidence contradicted the witness' testimony;

6. The reasonableness of the witness' testimony in light of all the evidence; and

7. Any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

The Committee recommends that the jurors be given some guidelines for determining credibility at the beginning of the trial so that they will know what to look for when witnesses are testifying.

See also Instruction 3.9 (Credibility of Witnesses) for the corresponding instruction to be given at the end of the case.

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16.2 Conduct And Duty Of The Jury During Trial

16.3 Duty Of Jury As To The Evidence

I will now say a few words about your conduct as jurors.

Until the trial is over:

First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately;

Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it;

Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own;

Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] [matron] to give to me; and

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

An abbreviated instruction should be repeated before the first recess, and as needed before other recesses. See Instruction 2.1 (Cautionary Instruction at First Recess).

The practice in federal court of instructing jurors not to discuss the case until deliberations is widespread. See, e.g., United States v. Pino-Noriega, 189 F.3d 1089, 1096 (9th Cir.) ("There is a reason that most judges continually admonish their juries during trials not to discuss the evidence or begin deliberations until told to do so, after all of the evidence, argument, and instruction on the law has been received."), cert. denied, 120 S. Ct. 453 (1999).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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16.8.2.6 Juror Note Taking: Advising Jury As To Availability Of Readback Of Testimony

Chapter 284: Readback Of Testimony

At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript of the trial. I urge you to pay close attention to the testimony as it is given.

Comment

The previous version of this instruction has been modified so as to delete the suggestion that read backs are either unavailable or highly inconvenient. The practice of discouraging read backs has been criticized in United States v. Damsky, 740 F.2d 134, 138 (2nd Cir.), cert. denied, 469 U.S. 918 (1984). See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 5.1.F (1998).

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12.3.5 Preliminary Instructions: Juror Note Taking

16.8 Juror Note Taking

If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [court room] [jury room] [envelope in the jury room].

Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

It is well settled in this circuit that the trial judge has discretion to allow jurors to take notes. United States v. Baker, 10 F.3d 1374, 1402 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994). See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 3.4 (1998).

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12.2.4 Charging Document: Explanation Of The Term "Information"

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16.16.1 Jurors To Be Guided By Official English Translation/Interpretation

Languages other than English may be used during this trial.

The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning of the non-English words.

The Committee recommends that this instruction be given in every case where applicable. See United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

See Instructions 2.8 (Transcript of Recording in Foreign Language) and 2.9 (Foreign Language Testimony) concerning foreign language transcripts and testimony to be given during trial, and Instruction 3.20 (Jury to be Guided by Official English Language Translation/Interpretation) to be given at the end of the case.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

1.13A Use of Interpreters in Court

You must not make any assumptions about a witness or a party based solely upon the use of an interpreter to assist that witness or party.

As to the use of interpreters in federal courts, see generally 28 USC 1827.

Approved 1/2007

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276.7 Deliberation: Multiple Defendants

Although the defendants are being tried together, you must give separate consideration to each defendant. In doing so, you must determine which evidence in the case applies to each defendant, disregarding any evidence admitted solely against some other defendant[s]. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant[s].

See Instructions 3.13 (Separate Consideration of Single Count– Multiple Defendants) and 3.14 (Separate Consideration of Multiple Counts– Multiple Defendants) for use at the end of the case.