9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Consideration of Particular Evidence Instruction

        Introductory Comment
        4.1     Statements By Defendant
        4.2     Silence In The Face Of Accusation
        4.3     Other Crimes, Wrongs Or Acts Of Defendant
        4.4     Character Of Defendant
        4.5     Character Of Victim
        4.6     Impeachment, Prior Conviction Of Defendant
        4.7     Character Of Witness For Truthfulness
        4.8     Impeachment Evidence – Witness
        4.9     Testimony of Witnesses Involving Special Circumstances–Immunity, Benefits, Accomplice, Plea
        4.10   Testimony Of Witness Receiving Benefits
        4.11   Testimony Of Accomplice
        4.12   Witness Who Has Pleaded Guilty
        4.13   Government's Use Of Undercover Agents And Informants
        4.14   Eyewitness Identification
        4.15   Child Witness
        4.16   Missing Witness
        4.17   Opinion Evidence, Expert Witness
        4.18   Summaries Not Received In Evidence
        4.19   Charts and Summaries In Evidence
        4.20   Flight/Concealment of Identity

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The Committee believes that instructions on particular kinds of evidence should be avoided as much as possible. General instructions on direct and circumstantial evidence and on credibility of witnesses should in most instances suffice, obviating the need for more specific instructions. See United States v. McSweaney, 507 F.2d 298, 301 (9th Cir. 1974); United States v. Ketola, 478 F.2d 64, 66 (9th Cir.), cert. denied, 414 U.S. 847 (1973).

An inference, i.e., a finding based on circumstantial evidence, may properly be drawn by the jury when it can be said with substantial assurance that the inferred 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). If the rational connection between facts presented and facts inferred is derived from common sense and experience, the matter can normally be left to counsel’s argument to the jury's judgment upon general instructions. Barnes v. United States, 412 U.S. 837, 845–46 (1973). Specific instructions on particular inferences are therefore not necessary in order for counsel to be able to argue the point and the jury to consider it. United States v. McDonald, 576 F.2d 1350, 1357 (9th Cir.), cert. denied, 439 U.S. 830; Bresbis v. United States, 439 U.S. 927 (1978); United States v. Lee, 506 F.2d 111, 123 (D.C.Cir. 1974), cert. denied, 421 U.S. 1002 (1975).

For these reasons, the Committee recommends against giving instructions such as those dealing with flight, resistance to arrest, missing witness, failure to produce evidence, false or inconsistent exculpatory statements, failure to respond to accusatory statements, and attempts to suppress or tamper with evidence.

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Chapter 28 Out Of Court Statements By Defendant

You have heard testimony that the defendant made a statement. It is for you to decide (1) whether the defendant made the statement, and (2) if so, how much weight to give to it. In making those decisions, you should consider all of the evidence about the statement, including the circumstances under which the defendant may have made it.

Language from this instruction was expressly approved in United States v. Hoac, 990 F.2d 1099, 1108 n.4 (9th Cir. 1993).

The instruction uses the word "statement" in preference to the more pejorative term, "confession."

The failure specifically to instruct the jury to weigh the statement in the light of its circumstances may be ground for reversal, although not plain error in this circuit. See United States v. Miller, 603 F.2d 109 (9th Cir. 1979). But see United States v. Barry, 518 F.2d 342, 347–48 (2d Cir. 1975) (concluding that omission was plain error). Although the judge must determine the voluntariness of a confession outside of the presence of the jury in ruling on its admissibility, the jury must still be instructed to weigh the statement with regard to the circumstances in which it was made. See Jackson v. Denno, 378 U.S. 368 (1964); 18 USC 3501 (Admissibility of Confessions).

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25.14 Adoptive Admissions

Evidence has been introduced that statements accusing the defendant of the crime charged in the indictment were made, and that the statements were neither denied nor objected to by the defendant. If you find that the defendant actually was present and heard and understood the statements, and that they were made under such circumstances that the statements would have been denied if they were not true, then you may consider whether the defendant's silence was an admission of the truth of the statements.

This instruction should be used with caution. Where a defendant is under arrest, silence in the face of an accusatory statement does not constitute an admission of the truth of the statements. Such evidence should not be received, and no instruction will be necessary. Doyle v. Ohio, 426 U.S. 610 (1976). On the other hand, when the accusatory statement is not made by a law enforcement official or when the defendant is not in custody, the instruction may be necessary.

Evidence that after a crime was committed, a suspect, prior to arrest, failed "'to report the incident to the police and to offer his exculpatory story'" is permissible. Fletcher v. Weir, 455 U.S. 603, 604 n.1 (1982) (quoting Jenkins v. Andersen, 447 U.S. 231 (1980)).

Evidence that a suspect, after arrest but before Miranda warnings were given, failed to offer an exculpatory explanation is not a constitutional violation. Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (citing Fletcher v. Weir, 455 U.S. 603, 604 (1982)). See also United States v. Ross, 123 F.3d 1181, 1188 (9th Cir. 1997) ("In general, the prosecution is free to impeach a defendant based on his silence when that silence does not follow Miranda warnings.") (citing Fletcher v. Weir, 455 U.S. at 607), cert. denied, 118 S.Ct. 733 (1998).

Evidence that a defendant offered no exculpatory explanation following the arrest and the giving of Miranda warnings is inadmissible. United States v. Hale, 422 U.S. 171 (1975).

Before silence can be considered as an admission, FRE 801(d)(2)(B), the court must consider whether the defendant was present and heard and understood the statement, whether the subject matter was within his knowledge, whether there were any impediments to responding, and whether the circumstances called for a reply. See United States v. Hove, 52 F.3d 233, 236 (9th Cir. 1995); United States v. McKinney, 707 F.2d 381, 384 (9th Cir. 1983); United States v. Sears, 663 F.2d 896, 904-05 (9th Cir. 1981), cert. denied, 455 U.S. 1027 (1982); United States v. Giese, 597 F.2d 1170, 1195–96 (9th Cir.), cert. denied, 444 U.S. 979 (1979).

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26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You have heard evidence of other [crimes] [acts] [wrongs] engaged in by the defendant. You may consider that evidence only as it bears on the defendant's [e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident] and for no other purpose.

See FRE 404(b).

See United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.), cert. denied, 119 S.Ct. 267 (1998), in which the Ninth Circuit stated:

We have adopted a four-part test to determine the admissibility of evidence under FRE 404(b).[citation omitted]. First, the evidence of other crimes must tend to prove a material issue in the case. Second, the other crime must be similar to the offense charged. Third, proof of the other crime must be based on sufficient evidence. Fourth, commission of the other crime must not be too remote in time. [citation omitted]. In addition to satisfying the four-part test, evidence of other crimes must also satisfy the FRE 403 balancing test--its probative value must not be substantially outweighed by the danger of unfair prejudice. See FRE 403.

But see United States v. Vizcarra-Martinez, 66 F.3d 1006, 1014 n.5 (9th Cir. 1995) ("We recognize that in cases involving the use of prior crimes to show opportunity, knowledge, preparation, or motive, similarity may or may not be necessary depending upon the circumstances.") (internal citations omitted).

The other act evidence need not constitute a crime, United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993) ("Prior acts need not be unlawful to be admissible under [FRE 404(b)] . . . ."), cert. denied, 513 U.S. 1059 (1994) and may have occurred after the crime charged, United States v. Ayers, 924 F.2d 1468, 1473 (9th Cir. 1991).

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251.4 Good Character Of Defendant

You have heard evidence of the defendant's character for [e.g., truthfulness, peacefulness, honesty, etc.]. In deciding this case, you should consider that evidence together with and in the same manner as all the other evidence in the case.

See FRE 404(a)(1).

The 1985 version of the Ninth Circuit Manual of Model Jury Instructions, Instruction 4.5 stated that "character evidence alone may create a reasonable doubt of the defendant's guilt." Several circuits have forbidden "standing alone" instructions on the grounds that they mislead the jury. See United States v. Burke, 781 F.2d 1234, 1241 & n.3 (7th Cir. 1985). See also Carbo v. United States, 314 F.2d 718, 746 (9th Cir. 1963) (trial court properly refused to instruct that character evidence alone may create reasonable doubt), cert. denied, 377 U.S. 953 (1964).

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25.13.6 Character Or Reputation Of Victim As Relevant To Self Defense

48.2.3 Victim's Prior Bad Acts Or Character

253.4.8 Character Of “Victim”

You have heard evidence of specific instances of the victim’s character for [violence, peacefulness, etc.]. You may consider such evidence in determining whether the victim was acting in conformance with that character trait at the time of the offense charged against the defendant in this case. In deciding this case, you should consider the victim’s character evidence together with and in the same manner as all the other evidence in this case.

The Ninth Circuit has recently decided two cases dealing with character of the victim in self defense cases. United States v. Saenz, 179 F.3d 686, 687-89 (9th Cir. 1999) (holding that a defendant claiming self defense could testify that he knew of the victim’s prior violent behavior because extrinsic evidence corroborating evidence of victim’s acts of violence is admissible to show defendant’s state of mind); United States v. James, 169 F.3d 1210, 1214 (9th Cir. 1999) (finding that the district judge erred in refusing to admit police records as corroborating victim’s character and holding that character evidence is not limited to "state of mind" of defendant). See also United States v. Keiser, 57 F.3d 847, 853 (9th Cir.) ("The fact that [FRE 402(a)(2)] is an exception to the rule against introduction of character evidence to imply that a person acted in conformity with that character on a particular occasion suggests that the very purpose of victim character evidence is to suggest to the jury that the victim did indeed act in conformity with his violent character at the time of the alleged crime against him."), cert. denied, 516 U.S. 1029 (1995).

These cases address what type of proof can be used to show the victim’s character in self defense cases. These cases may require the instruction to clarify language that limits the jury’s consideration of victim character evidence. FRE 404 has similar provisions for character of defendant and character of victim.

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27.3.2 Prior Conviction Of Defendant

You have heard evidence that defendant has previously been convicted of a crime. You may consider that evidence only as it may affect the defendant's believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.

See FRE 609 (Impeachment by Evidence of Conviction of Crime). The court must give such a limiting instruction if requested by the defendant. FRE 105 (Limited Admissibility).

If past crimes of the defendant are to be used for another purpose—e.g., to prove an element of an habitual offender charge, or to establish intent—that limited purpose should similarly be identified. See Instruction 4.3 (Other Crimes, Wrongs or Acts of Defendant).

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You have heard evidence of the character for truthfulness of [name of witness], a witness. You may consider this evidence along with other evidence in deciding whether or not to believe that witness' testimony and how much weight to give to it.

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2000 Version

You have heard evidence of the character for truthfulness of [name of witness], a witness. You may consider this evidence along with other evidence in deciding whether or not to believe that witness' testimony and how much weight to give to it.

Character and reputation are not two separate types of evidence. Reputation is one means of proving character. Opinion evidence is another. Regarding admissibility of character evidence, see FRE 607 (Who May Impeach), 608 (Evidence of Character and Conduct of Witness) and 609 (Impeachment By Evidence of Conviction of Crime).

See also Instruction 4.17 (Opinion Evidence, Expert Witness).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

You have heard evidence that [witness], a witness, [e.g. has been convicted of a felony, lied under oath on a prior occasion, etc.]. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to the testimony of that witness.

FRE 608 (Evidence of Character and Conduct of Witness) and 609 (Impeachment By Evidence of Conviction of Crime) place restrictions on the use of instances of past conduct and convictions to impeach a witness, and FRE 105 (Limited Admissibility) gives a defendant the right to request a limiting instruction explaining that the use of this evidence is limited to credibility of the witness.

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25.5 Witness Immunity

Rev. 9/2003 (for 2000 Version see below)

You have heard testimony from [witness], a witness who has received immunity. That testimony was given in exchange for a promise by the government that [the witness will not be prosecuted, the [witness] testimony will not be used in any case against the witness, etc.].

In evaluating [witness] testimony, you should consider whether that testimony may have been influenced by the government's promise of immunity given in exchange for it, and you should consider that testimony with greater caution than that of other witnesses.

The defendant is entitled to this instruction, but not necessarily in addition to Instructions 4.10 (Testimony of Witness Receiving Benefits) and 4.11 (Testimony of Accomplice), which have a similar cautionary effect. See United States v. Morgan, 555 F.2d 238, 242–43 (9th Cir. 1977). Where more than one of these reasons exists for questioning the credibility of a witness, the better practice is to combine them in a single instruction regarding the credibility of the witness' testimony. United States v. Bernard, 625 F.2d 854, 858–59 (9th Cir. 1980).

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25.7 Witness Or Informant Receiving Benefit From Prosecution

You have heard testimony that [witness], a witness, has received [benefits, compensation, favored treatment, etc.] from the government in connection with this case. You should examine [witness] testimony with greater caution than that of other witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of [e.g., benefits] from the government.

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2000 Version

You have heard testimony that [witness], a witness, has received [benefits, compensation, favored treatment, etc.] from the government in connection with this case. You should examine [witness] testimony with greater caution than that of other witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of [e.g., benefits] from the government.

This instruction was previously entitled "Testimony of Informer."

The defendant is entitled to this instruction when the witness has gathered information "in an undercover capacity for the government" or has been paid, given promises or advantageous treatment, or has received other benefits for the information. See Guam v. Dela Rosa, 644 F.2d 1257, 1259–60 (9th Cir. 1980); United States v. Bernard, 625 F.2d 854, 858 n.3 (9th Cir. 1980). A salaried government undercover agent is not an "informer," however. United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978).

The court may not deny a request for such an instruction if the evidence of guilt, other than the informer's testimony, is relatively weak, or if the testimony is unreliable for reasons other than the witness’ status as an informer (e.g., the informer is a drug addict). Dela Rosa, 644 F.2d at 1260. Dela Rosa treats the cautionary instruction about informers as essentially similar to the instruction for accomplice-witnesses. Id. Hence, the same rule should apply to this instruction, that the court need not give it sua sponte except in the exceptional case where the testimony is almost entirely uncorroborated and is critical and suspect. See United States v. Monzon-Valenzuela,186 F.3d 1181, 1183 (9th Cir. 1999); United States v. Martin, 489 F.2d 674, 677 n.3 (9th Cir. 1973), cert. denied, 417 U.S. 948 (1974); Caldwell v. United States, 405 F.2d 613, 615–16 (9th Cir. 1969), cert. denied, 397 U.S. 956 (1970). Cf. United States v. Busby, 484 F.2d 994, 997 (9th Cir. 1973) (failure to give instruction not prejudicial error where the testimony was corroborated), cert. denied, 415 U.S. 980 (1974).

Where there are several reasons for discounting the credibility of a witness, they may be combined in a single cautionary instruction concerning credibility. Bernard, 625 F.2d at 858–59.

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25.6 Accomplices: Cautionary Instructions

You have heard testimony from [witness] who [admitted being] [was alleged to be] an accomplice to the crime charged. An accomplice is one who voluntarily and intentionally joins with another person in committing a crime. You should consider such testimony with greater caution than that of other witnesses.

An accomplice is defined as "one who could have been indicted for the same offense either as an accessory or principal." Guam v. Dela Rosa, 644 F.2d 1257, 1260–61 (9th Cir. 1980). Where the court gives a general instruction charging jurors to weigh the other evidence, the specific caution about accomplice witnesses may not be required. See United States v. McSweaney, 507 F.2d 298, 301 (9th Cir. 1974). But failure to give the accomplice-witness instruction is prejudicial error when the testimony is "important" to the case(i.e., where other evidence is weak and the determination of guilt will rest largely on the accomplice's testimony). United States v. Bernard, 625 F.2d 854, 857–58 (9th Cir. 1980). The presence of other factors indicating that the testimony might be unreliable (e.g., where the witness is a drug addict or a paid informer) also militates in favor of a specific caution. Id. at 858. Where the testimony is not corroborated, and is both critical and suspect, the failure to give an accomplice instruction may constitute plain error. See United States v. Martin, 489 F.2d 674, 677 n.3 (9th Cir. 1973), cert. denied, 417 U.S. 948 (1974); Caldwell v. United States, 405 F.2d 613, 615–16 (9th Cir. 1969), cert. denied, 397 U.S. 956 (1970). Cf. United States v. Busby, 484 F.2d 994, 997 (9th Cir. 1973) (court not required to give instruction sua sponte when accomplice testimony is corroborated), cert. denied, 415 U.S. 980 (1974).

A separate accomplice-witness caution need not be given if the jury has been instructed to treat the witness' testimony with caution for another reason (e.g., where the witness has also been granted immunity). But the better practice is to include the various reasons for caution in a single instruction regarding the credibility of that witness. Bernard, 625 F.2d at 858–59.

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26.2.3 Witness Who Has Pled Guilty: Limited Purpose Instruction

[Witness] has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining this witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves.

The jury should be instructed that guilty plea evidence can only be used to determine the credibility of the witness; failure to give such an instruction may be prejudicial error. See United States v. Rewald, 889 F.2d 836, 865 (9th Cir. 1989), amended by 902 F.2d 18, cert. denied, 498 U.S. 819 (1990); United States v. Halbert, 640 F.2d 1000, 1006 (9th Cir. 1981) (reversible error for trial court to fail to instruct jury that co-defendants' pleas were admitted only as to the witnesses' credibility and could "not be considered as evidence of the defendant's guilt." (citation omitted.))

It is preferable that the district court instruct the jury regarding the limited purpose for which the prior conviction is being admitted both contemporaneously with proof of the prior conviction and in the final charge to the jury. Rewald, 889 F.2d at 865 ("'The most effective practice would be to instruct the jury when the evidence of the plea is admitted, and again in final instructions.'") (quoting Halbert, 640 F.2d at 1006).

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

You have heard testimony from [an undercover agent] [an informant] who was involved in the government's investigation in this case. Law enforcement officials are not precluded from engaging in stealth and deception, such as the use of informants and undercover agents, in order to apprehend persons engaged in criminal activities. Undercover agents and informants may properly make use of false names and appearances and may properly assume the roles of members in criminal organizations. The government may utilize a broad range of schemes and ploys to ferret out criminal activity.

Comment

See United States v. Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996) (permissible for undercover agents to deny they are police officers); United States v. Ritter, 989 F.2d 318, 322 (9th Cir. 1993); United States v. North, 746 F.2d 627, 631 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985), overruled on other grounds by Jacobson v. United States, 503 U.S. 540 (1992).

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

In any criminal case, the government must prove beyond a reasonable doubt that the defendant was the perpetrator of the crime[s] alleged.

You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may take into account the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also take into account:

1. the capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation;
   
2. whether the identification was the product of the eyewitness’ own recollection or was the result of subsequent influence or suggestiveness;
   
3. any inconsistent identifications made by the eyewitness;
   
4. whether the witness had known or observed the offender at earlier times; and
   
5. the totality of circumstances surrounding the eyewitness’ identification.

If the district court concludes that an eyewitness identification instruction is appropriate, the Committee recommends that this instruction be given. Early versions of the Manual of Model Criminal Jury Instructions for the Ninth Circuit included an eyewitness identification instruction. See Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 4.13 (1984); Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 4.13 (1985). Since 1989, the Committee has recommended against the giving of an eyewitness identification instruction. See, e.g., Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 4.13 (1989).

Ninth Circuit case law now indicates that an eyewitness identification instruction may be appropriate, particularly where the district court has determined that proffered expert witness testimony regarding eyewitness identification should be excluded. See, e.g., United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996) ("The district court may exercise its discretion to exclude expert testimony if it finds that the trier of fact . . . [would] be better served through a . . . comprehensive jury instruction."); United States v. Rincon, 28 F.3d 921, 925-26 (9th Cir. 1994).

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27.2.13 Testimony Of A Child: Cautionary Instruction

The Committee recommends that no instruction be given and that the matter be left to the jury under the general credibility instruction, Instruction 3.9 (Credibility of Witnesses).

In People of Territory of Guam v. McGravey, 14 F.3d 1344, 1348 (9th Cir. 1994), the Ninth Circuit stated that "the better view is that a 'trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and if so, the nature of that instruction.'" (citation omitted). See also United States v. Pancheco, 154 F.3d 1236, 1239 (10th Cir. 1998), cert. denied, 119 S. Ct. 886 (1999).

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36.2 Missing Witness

The court has the discretion to give a missing witness instruction or to leave the matter to the argument of counsel. See United States v. Kojayan, 8 F.3d 1315, 1318 n.2 & 1320-21 (9th Cir. 1993) (trial court's refusal to give instruction upheld); United States v. Bautista, 509 F.2d 675, 678–79 (9th Cir.) (deferring to the discretion of the trial court in deciding not to give the instruction), cert. denied, 421 U.S. 976 (1975).

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Chapter 29: Expert Opinion Testimony

You have heard testimony from persons who, because of education or experience, are permitted to state opinions and the reasons for their opinions.

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

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2000 Version

You have heard testimony from persons who, because of education or experience, are permitted to state opinions and the reasons for their opinions.

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

See FRE 701–05. See also Instruction 4.7 (Character of Witness for Truthfulness).

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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, and other documents which are in evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

This instruction applies only where the charts and summaries are not received into evidence and are used for demonstrative purposes. See United States v. Johnson, 594 F.2d 1253 (9th Cir.), cert. denied sub. nom. Richey v. United States, 444 U.S. 964 (1979). See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10 (1998).

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25.3 Charts, Summaries, Etc.

Certain charts and summaries have been received into evidence. Charts and summaries are only as good as the underlying supporting material. You should, therefore, give them only such weight as you think the underlying material deserves.

See FRE 1006. See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10 (1998). This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.