PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
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Table of Contents
Part 1 General Criminal Instructions
A. Preliminary Instructions Before Trial
1
Standard Preliminary Instruction Before Trial
2
Questioning Of Witnesses By Jurors
3
Notetaking By Jurors
4
Jury Not To Consider Punishment
PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
STANDARD PRELIMINARY INSTRUCTION BEFORE TRIAL
1 Optionals Additions
Members of the Jury:
Before we begin the trial, I would like to tell you about what will be happening. I want to describe how the trial will be conducted and explain what we will be doing -- you, the lawyers for both sides, and I. At the end of the trial I will give you more detailed guidance on how you are to go about reaching your decision. But now I simply want to explain how the trial will proceed.
This criminal case has been brought by the United States government. I will sometimes refer to the government as the prosecution. The government is represented at this trial by an assistant United States attorney, _______. The defendant, _______, is represented by his lawyer, ________. (Alternative: The defendant, ________ has decided to represent himself and not use the services of a lawyer. He has a perfect right to do this. His decision has no bearing on whether he is guilty or not guilty, and it should have no effect on your consideration of the case.)
The defendant has been charged by the government with violation of a federal law. He is charged with [e.g.: having intentionally sold heroin. The charge against the defendant is contained in the indictment. The indictment is simply the description of the charge made by the government against the defendant; not evidence of anything. The defendant pleaded not guilty to the charge and denies committing the offense. He is presumed innocent and may not be found guilty by you unless all twelve of you unanimously find that the government has proved his guilt beyond a reasonable doubt. (Addition for multidefendant cases: The defendants are being tried together because government has charged that they worked together to commit the crime of ________. But you will have to separate consideration to the case against each defendant. Each is entitled to your separate consideration. Do not think of them as a group.)
The first step in the trial will be the opening statements. The government in its opening statement will tell you about the evidence which it intends to put before you, so that you will have an idea of what the government's case is going to be.
Just as the indictment is not evidence, neither is the opening statement evidence. Its purpose is only to help you understand what the evidence will be and what the government will try to prove.
1 After the government's opening statement, the defendant's attorney will make an opening statement. At this point in the trial, no evidence has been offered by either side.
Next the government will offer evidence that it says will support the charges against the defendant. The government's evidence in this case will consist of the testimony of witnesses as well as documents and exhibits. Some of you have probably heard the terms "circumstantial evidence" and "direct evidence." Do not be concerned with these terms. You are to consider all the evidence given in this trial.
After the government's evidence, the defendant's lawyer may (make an opening statement and) present evidence in the defendant's behalf, but he is not required to do so. I remind you that the defendant is presumed innocent and the government must prove the guilt of the defendant beyond a reasonable doubt. The defendant does not have to prove his innocence.
[Insert Instruction 2 here if material on questioning by jurors if desired.]
After you have heard all the evidence on both sides, the government and the defense will each be given time for their final argument. I just told you that the opening statements by the lawyers are not evidence. The same applies to the closing arguments. They are not evidence either. In their closing arguments the lawyers for the government and the defendant will be attempting to summarize their cases and help you understand the evidence that was present.
The final part of the trial occurs when I instruct you about the rules of law which you are to use in I reaching your verdict. After hearing my instructions you will leave the courtroom together to make your decision. Your deliberations will be secret. You will never have to explain your verdict to anyone.
[Insert Instruction 3 here if material on note-taking by jurors is desired.]
Now that I have described the trial itself, let me explain the jobs that you and I are to perform during the trial. I will decide which rules of law apply to this case. I will decide this in response to questions raised by the attorneys as we go along and also in the final instructions given to you after the evidence and arguments are completed. You will decide whether the government has proved, beyond a reasonable doubt, that the defendant has committed the crime of _______. You must base that decision only on the evidence in the case and my instructions about the law.2
[Insert discussion of the elements of the offense here if they are to be set out for the jury in the preliminary instruction.]
[Insert Instruction 4 here if a statement that the jury should not consider punishment is desired.]
During the course of the trial, you should not talk with any witness, or with the defendant, or with any of the lawyers in the case. Please don't talk with them about any subject at all. In addition, during the course of the trial you should not talk about the trial with anyone else-not your family, not your friends, not the people you work with. Also, you should not discuss this case among yourselves until I have instructed you on the law and you have gone to the jury room to make your decision at the end of the trial. It is important that you wait until all the evidence is received and you have heard my instructions on rules of law before you deliberate among yourselves. Let me add that during the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own which you think might be helpful. Do not engage in any outside reading on this case, do not attempt to visit any places mentioned in the case, and do not in any other way try to learn about the case outside the courtroom.
Now that the trial has begun you must not read about it in the newspapers or watch or listen to television or radio reports of what is happening here.
The reason for these rules, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.
At times during the trial, a lawyer may make an objection to a question asked by another lawyer, or to an answer by a witness. This simply means that the lawyer is requesting that I make a decision on a particular rule of law. Do not draw any conclusion from such objections or from my rulings on the objections. These only relate to the legal questions that I must determine and should not influence your thinking. If I sustain an objection to a question, the witness may not answer it. Do not attempt to guess what answer might have been given had I allowed the question to be answered. Similarly, if I tell you not to consider a particular statement, you should put that statement out of your mind, and you may not refer to that statement in your later deliberations.
During the course of the trial I may ask a question of a witness. If I do, that does not indicate I have any opinion about the facts in the case.
Finally, let me clarify something you may wonder about later. During the course of the trial I may have to interrupt the proceedings to confer with the attorneys about the rules of law which should apply here. Sometimes we will talk here, at the bench. But some of these conferences may take time. So, as a convenience to you, I will excuse you from the courtroom. I will try to avoid such interruptions as much as possible, but please be patient even if the trial seems to be moving slowly because conferences often save time for all of us.
Thank you for your attention.
Footnote 1: This paragraph should be omitted if the defense reserves its statement until later. The trial judge should resolve this matter with counsel prior to the giving of the instruction.
Footnote 2: If the judge wishes to discuss considerations in evaluating witnesses' testimony in the preliminary instruction as well] as in the closing charge, this would be an appropriate place to do so. Instruction 23 can he adopted for this purpose.
Commentary
Unlike most of the other instructions. this one is lengthy, containing a number of different concepts. While the length of it to some question, the committee was persuaded by Judge Prettyman's argument that such an instruction is necessary at the commencement of the trail. Prettyman, Jury Instructions - First or Last?, 46 A.B.A.J. 1066 (1960)
Some portions of this instruction can appropriately be included in instructions given to the entire voir dire panel. In that event, the judge should consider whether repetition in this preliminary instruction is necessary.
Throughout this instruction, the presumption of innocence element is stressed. The committee believes that it is important to plant the presumption in the jurors' minds so that there 'viii be no confusion during the course of the trial.
Unlike some pattern instructions, this instruction does not suggest that the statute or indictment in the case actually be read to the jury. The committee believes that such a standard practice is often confusing to the jury and the purpose for it can be achieved if the judge gives a succinct description of the crime charged.
The committee believes that the fullest possible disclosure of the elements of the elements of the offense and any defense will assist the jury in understanding the evidence. The committee recognizes, however, that detailing the elements is not always practicable before trial. It is important that counsel be consulted before specific elements are discussed with the jury.
Finally, the instruction does not refer to the possibility that sequestration of the jury ,will he necessary (whether during the course of the trial or the deliberations). In cases in which sequestration is likely, the committee believes that reference to this problem should be made to the entire jury panel when other standard matters (length of the trial, courtroom hours, and so on) are discussed.
PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
2 Questioning of Witnesses by Jurors
(Optional Addition to Preliminary Instruction)
NCJIC Materials Related To This Instruction:
16.9 Questions To Witnesses By Jurors
Alternative A
The only persons who may ask questions of witnesses are the lawyers and myself. You are not permitted to ask questions of witnesses.
Alternative B
Generally only the lawyers and I ask questions of witnesses. If you feel that an important question has not been asked, you may put the question in writing and have it handed to me. I will then decide if the question is a proper one. If it is, I will ask the question of the witness.
Commentary
A judge can take one of three alternatives regarding questions by jurors: say nothing about questions, give an instruction forbidding such questions, or give an instruction allowing them.
Alternative B, which permits only written questions by jurors, is intended to reduce the risk of an objectionable question being communicated to other members of the jury and to enable trial judges to deal with objectionable questions out of the presence of the jury.
PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
3 Note Taking by Jurors
(Optional Addition to Preliminary Instruction)
NCJIC Materials Related To This Instruction:
12.3.5 Preliminary Instructions: Juror Notetaking
16.8 Juror Notetaking
Alternative A
You may not take notes during the course of the trial. There are several reasons for this. It is difficult to take notes and, at the same time, pay attention to what a witness is saying. Furthermore, in a group the size of yours certain persons will take better notes than others and there is the risk that the jurors who do not take good notes will depend upon the jurors who do take good notes. The jury system depends upon all twelve jurors paying close attention and arriving at a unanimous decision. I believe that the jury system works better when the jurors do not take notes.
You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for use in reaching your decision in this case.
Alternative B
If you want to take notes during the course of the trial you may do so. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying at the same time. If you do take notes, be sure that your taking of notes does not interfere with your listening to and considering all the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take the notes with you at the end of the day. Be sure to leave them in the jury room.
If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment all members of the jury; you must all remember the evidence in this case.
You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for use in reaching your decision in this case.
Commentary
The taking of notes by jurors appears to be a discretionary practice with the trial judge. Thus, two alternatives are offered.
The instruction permitting note-taking is drafted on the assumption that the jurors will be permitted to take their notes into the jury room and rely on them during deliberations. The committee believes that it is not desirable to allow note-taking and then not allow jurors to use the notes during deliberations. If the note-taking jurors will not be permitted to take their notes into the jury room, however, that should be made clear at the outset.
PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
4 Jury Not to Consider Punishment
(Optional Addition to Preliminary Instruction)
NCJIC Materials Related To This Instruction:
Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict
If you find the defendant guilty, it will then be my job to decide what punishment should be imposed. In considering the evidence and arguments that will be given during the trial, you should not guess about the punishment. It should not enter into your consideration or discussions at any time.
Commentary
In cases in which a punishment instruction will be given, it would normally be given at the end of the trial. Because of the possibility that in some serious cases the trial judge might wish to give the instruction twice, particularly in those jurisdictions in which jurors in state cases actually do consider punishment, the punishment instruction is included here with the preliminary instruction.