THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 2 - CHAPTER 12
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12.4 Composite Preliminary Instructions

    12.4.1 Sample Composite Preliminary Instructions

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 2 - CHAPTER 12

    12.4.1    Sample Composite Preliminary Instructions

RESEARCH NOTES:

See also Benchbook For U.S. District Court Judges [2.07.1 Preliminary Jury Instructions In Criminal Case: Sample Instructions].

See also Benchbook For U.S. District Court Judges [2.08 General Instructions To Jury At End Of Criminal Case].

See also A Manual On Jury Trial Procedures [3.3.1 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.3A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory Instructions].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 1.01.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 2.1.

SAMPLE INSTRUCTION # 1:

Preliminary Instructions Before Opening Statements (Short Form)

Members of the Jury:

    You have now been sworn as the jury to try this case. By your verdict(s) you will decide the disputed issues of fact. I will decide all questions of law that arise during the trial, and before you retire to deliberate together and decide the case at the end of the trial, I will instruct you on the rules of law that you must follow and apply in reaching your decision.

    Because you will be called upon to decide the facts of the case, you should give careful attention to the testimony and evidence presented for your consideration during the trial, but you should keep an open mind and should not form or state any opinion about the case one way or the other until you have heard all of the evidence and have had the benefit of the closing arguments of the lawyers as well as my instructions to you on the applicable law.

    During the trial you must not discuss the case in any manner among yourselves or with anyone else, and you must not permit anyone to attempt to discuss it with you or in your presence; and, insofar as the lawyers are concerned, as well as others whom you may come to recognize as having some connection with the case, you are instructed that, in order to avoid even the appearance of impropriety, you should have no conversation whatever with those persons while you are serving on the jury.

    You must also avoid reading any newspaper articles that might be published about the case now that the trial has begun, and you must also avoid listening to or observing any broadcast news program on either television or radio because of the possibility that some mention might be made of the case during such a broadcast now that the trial is in progress.

    The reason for these cautions, of course, lies in the fact that it will be your duty to decide this case only on the basis of the testimony and evidence presented during the trial without consideration of any other matters whatever.

    From time to time during the trial I may be called upon to make rulings of law on motions or objections made by the lawyers. You should not infer or conclude from any ruling I may make that I have any opinions on the merits of the case favoring one side or the other. And if I sustain an objection to a question that goes unanswered by the witness, you should not speculate on what answer might have been given, nor should you draw any inferences or conclusions from the question itself.

    During the trial it may be necessary for me to confer with the lawyers from time to time out of your hearing concerning questions of law or procedure that require consideration by the Court alone. On some occasions you may be excused from the courtroom as a convenience to you and to us while I discuss such matters with the lawyers. I will try to limit such interruptions as much as possible, but you should remember at all times the importance of the matter you are here to determine and should be patient even though the case may seem to go slowly.

    In that regard, as you were told during the process of your selection, we expect the case to last , but I will make every effort to expedite the trial whenever possible.

    Now, we will begin by affording the lawyers for each side an opportunity to make opening statements to you in which they may explain the issues in the case and summarize the facts they expect the evidence will show. After all the testimony and evidence has been presented, the lawyers will then be given another opportunity to address you at the end of the trial and make their summations or final arguments in the case. The statements that the lawyers make now, as well as the arguments they present at the end of the trial, are not to be considered by you either as evidence in the case (which comes only from the witnesses and exhibits) or as your instruction on the law (which will come only from me). Nevertheless, these statements and arguments are intended to help you understand the issues and the evidence as it comes in, as well as the positions taken by both sides. So I ask that you now give the lawyers your close attention as I recognize them for the purpose of making an opening statement.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. TI 2.1 [Preliminary Instructions Before Opening Statements (Short Form)] (1997).]

SAMPLE INSTRUCTION # 2:

Preliminary Instructions Before Opening Statements (Long Form)

Members of the Jury:

    You have now been sworn as the jury to try this case and I would like to give you some preliminary instructions at this time.

    By your verdict(s) you will decide the disputed issues of fact. I will decide all questions of law that arise during the trial, and before you retire to deliberate together and decide the case at the end of the trial, I will then instruct you again on the rules of law that you must follow and apply in reaching your decision.

    Because you will be called upon to decide the facts of the case you should give careful attention to the testimony and evidence presented for your consideration during the trial, but you should keep an open mind and should not form or state any opinion about the case one way or the other until you have heard all of the evidence and have had the benefit of the closing arguments of the lawyers as well as my instructions to you on the applicable law.

    During the trial you must not discuss the case in any manner among yourselves or with anyone else, and you must not permit anyone to attempt to discuss it with you or in your presence; and, insofar as the lawyers are concerned, as well as others whom you may come to recognize as having some connection with the case, you are instructed that, in order to avoid even the appearance of impropriety, you should have no conversation whatever with those persons while you are serving on the jury.

    You must also avoid reading any newspaper articles that might be published about the case now that the trial has begun, and you must also avoid listening to or observing any broadcast news program on either television or radio because of the possibility that some mention might be made of the case during such a broadcast now that the trial is in progress.

    The reason for these cautions, of course, lies in the fact that it will be your duty to decide this case only on the basis of the testimony and evidence presented during the trial without consideration of any other matters whatever.

    From time to time during the trial I may be called upon to make rulings of law on motions or objections made by the lawyers. You should not infer or conclude from any ruling I may make that I have any opinions on the merits of the case favoring one side or the other. And if I sustain an objection to a question that goes unanswered by the witness, you should not speculate on what answer might have been given, nor should you draw any inferences or conclusions from the question itself.

    During the trial it may be necessary for me to confer with the lawyers from time to time out of your hearing concerning questions of law or procedure that require consideration by the Court alone. On some occasions you may be excused from the courtroom as a convenience to you and to us while I discuss such matters with the lawyers. I will try to limit such interruptions as much as possible, but you should remember at all times the importance of the matter you are here to determine and should be patient even though the case may seem to go slowly.

    In that regard, as you were told during the process of your selection, we expect the case to last , but I will make every effort to expedite the trial whenever possible.

    Now, in order that you might better understand at the beginning of the case the nature of the decisions you will be asked to make and how you should go about making them, I would like to give you some preliminary instructions at this time concerning some of the rules of law that will apply.

    Of course, the preliminary instructions I will give you now will not cover all of the rules of law applicable to this case. As stated before, I will instruct you fully at the end of the trial just before you retire to deliberate upon your verdict(s), and will probably restate at that time some of the rules I want to tell you about now. In any event, you should not single out any one instruction alone as stating the law, but should consider all of my instructions as a whole.

    Presumption of Innocence. As you were told during the process of your selection, an indictment in a criminal case is merely the accusatory paper which states the charge or charges to be determined at the trial, but it is not evidence against the Defendant or anyone else. Indeed, the Defendant has entered a plea of Not Guilty and is presumed by the law to be innocent. The Government has the burden of proving a Defendant guilty beyond a reasonable doubt, and if it fails to do so you must find that Defendant not guilty.

    Burden of Proof. Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

    Order of Proof - Defendant's Right Not To Testify. Because the Government has the burden of proof it will go forward and present its testimony and evidence first. After the Government finishes or "rests" what we call its "case in chief," the Defendant may call witnesses and present evidence if [he] [she] wishes to do so. However, you will remember that the law does not require a Defendant to prove [his] [her] innocence or produce any evidence at all, and no inference whatever may be drawn from the election of a Defendant not to testify in the event [he] [she] should so elect.

    Credibility Of The Witnesses. As you listen to the testimony you should remember that you will be the sole judges of the credibility or "believability" of each witness and the weight to be given to his or her testimony. In deciding whether you believe or disbelieve any witness you should consider his or her relationship to the Government or to the Defendant; the interest, if any, of the witness in the outcome of the case; his or her manner of testifying; the opportunity of the witness to observe or acquire knowledge concerning the facts about which he or she testified; the candor, fairness and intelligence of the witness; and the extent to which the witness has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.

    Trial Transcripts Not Available. You will notice that the Court Reporter is making a complete stenographic record of all that is said during the trial, including the testimony of the witnesses, in case it should become necessary at a future date to prepare printed transcripts of any portion of the trial proceedings. Such transcripts, however, if prepared at all, will not be printed in sufficient time or appropriate form for your review during your deliberations, and you should not expect to receive any transcripts. You will be required to rely upon your own individual and collective memory concerning what the testimony was.

    Exhibits Will Be Available. On the other hand, any papers and other tangible exhibits received in evidence during the trial will be available to you for study during your deliberations. On some occasions, during the trial, exhibits may be handed to you for brief inspection there in the Jury box; others will not be shown to you. But do not be concerned because, as I said, you will get to see and inspect at the end of the case all of the exhibits that are received in evidence.

    Notetaking - Permitted. Because transcripts will not be available, you will be permitted to take notes during the trial if you want to do so, and the Clerk will provide notebooks and pens or pencils for each of you. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you, individually.

    If you do decide to take notes, be careful not to get so involved in notetaking that you become distracted from the ongoing proceedings. Don't try to summarize all of the testimony. Instead, limit your notetaking to specific items of information that might be difficult to remember later such as dates, times, amounts, measurements or identities and relationships. But remember that you must decide upon the credibility or believability of each witness, and you must therefore observe the demeanor and appearance of each witness while testifying. Notetaking must not distract you from that task.

    Also your notes should be used only as aids to your memory; and, whether you take notes or not, you should rely upon your own independent recollection or memory of what the testimony was and should not be unduly influenced by the notes of other Jurors. Notes are not entitled to any greater weight than the recollection or impression of each Juror as to what the testimony was.

    Notetaking - Not Permitted. A question sometimes arises as to whether individual members of the Jury will be permitted to take notes during the trial.

    The desire to take notes is perfectly natural, especially for those of you who are accustomed to making notes because of your schooling or the nature of your work or the like. It is requested, however, that Jurors not take notes during the trial. One of the reasons for having a number of persons on the Jury is to gain the advantage of your several, individual memories concerning the testimony presented before you; and, while some of you might feel comfortable taking notes, other members of the Jury may not have skill or experience in notetaking and may not wish to do so.

    Instructions On The Law Of Conspiracy. As you know from the explanation I gave during the course of your selection, it is charged in this case (among other things) that the Defendant(s) engaged in an unlawful "conspiracy" to commit certain offenses.

    Under the law a "conspiracy" is a combination or agreement of two or more persons to join together to attempt to accomplish some unlawful purpose. It is a kind of "partnership in criminal purposes," and willful participation in such a scheme or agreement, [followed by the commission of an overt act by one of the conspirators] [Footnote 1] is sufficient to complete the offense of "conspiracy" itself even though the ultimate criminal object of the conspiracy is not accomplished or carried out. In order to establish the offense of "conspiracy" the Government must prove beyond a reasonable doubt each of the following specific facts:

    (1) That two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment;

    (2) That the Defendant, knowing the unlawful purpose of the plan, willfully joined in it;

    [(3) That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the methods (or "overt acts") described in the indictment; and

(4) That such "overt act" was knowingly committed at or about the time alleged in an effort to carry out or accomplish some object of the conspiracy.] [Footnote 2]

    Instructions On The Law Governing Substantive Offenses. In addition to the alleged conspiracy offense, the indictment also charges certain so-called "substantive offenses," namely [here describe the alleged substantive offenses charged in the indictment]. In order to establish that offense the Government must prove beyond a reasonable doubt each of the following essential elements:

[Quote essential elements of the offense as set forth in the appropriate Offense Instruction.]

    The word "knowingly," as that term has been used in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident.

    The word "willfully, " as that term has been used in these instructions, means that the act was committed voluntarily and purposely with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.

    Conclusion. Now, we will begin the trial at this time by affording the lawyers for each side an opportunity to make opening statements to you in which they may explain the issues in the case and summarize the facts they expect the evidence will show. After all the testimony and evidence has been presented, the lawyers will then be given another opportunity to address you at the end of the trial and make their summations or final arguments in the case.

    The statements that the lawyers make now, as well as the arguments they present to you at the end of the trial, are not to be considered by you either as evidence in the case (which comes only from the witnesses and exhibits), or as your instruction on the law (which will come only from me). Nevertheless, these statements or arguments are intended to help you understand the evidence as it comes in, the issues or disputes you will be called upon to decide, as well as the positions taken by both sides. So I ask that you now give the lawyers your close attention as I recognize them in turn for the purpose of making an opening statement.

Footnote 1: The bracketed material on this page should be omitted with respect to conspiracy offenses not requiring proof of overt acts (such as 21 USC 846 and 21 USC 963).

Footnote 2: The bracketed material on this page should be omitted with respect to conspiracy offenses not requiring proof of overt acts (such as 21 USC 846 and 21 USC 963).

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. 2.2 [Preliminary Instructions Before Opening Statements (Long Form)] (1997).]

SAMPLE INSTRUCTION # 3:

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.

    After the government's opening statement, the defendant's attorney will make an opening statement. [Footnote 1] 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 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 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. [Footnote 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 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 juryroom 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 be adopted for this purpose.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. 1 [Standard Preliminary Instruction Before Trial] (1988).]