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

VOLUME 3 - CHAPTER 16
Go to Volume 3 Table of Contents - Go to Chapter 16 Table of Contents

16.13 Conduct Of Attorneys

    16.13.1 Admonishment Of Attorney: No Adverse Inference Against Defendant
    16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial
    16.13.3 Bench Conference: Cautionary Instructions
    16.13.4 Byplay Between Counsel: Cautionary Instruction
    16.13.5 Discussion Between Court And Counsel: Cautionary Instruction
    16.13.6 Attorney Objections Do Not Indicate A Desire To Keep Anything From The Jury
    16.13.7 Prosecution Disparagement Of Defense Attorney

RATIONALE: When the court admonishes the defendant's attorney in the presence of the jury for perceived misconduct there is a danger that the jury will draw an adverse inference against the defendant.

POINTS AND AUTHORITIES: When an overzealous attorney is admonished by the court for inappropriate conduct, an instruction to the jury to not draw inferences against the side to whom the admonition was addressed may be warranted. (See U.S. v. Polito (1st Cir. 1988) 856 F2d 414, 418; see also U.S. v. Mickens (2d Cir. 1991) 926 F2d 1323, 1327; Milam v. U.S.(5th Cir. 1963) 322 F2d 104, 110; Luera v. Snyder (D. Colo. 1984) 599 FSupp 1459, 1467.) Specific instruction may be necessary because the general cautionary instructions may not be adequate. (See Mickens, 926 F2d at 1327-28.)

    See also NCJIC 16.14.3.9 [Judge Should Not Personally Attack Attorney].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 11.3].

    During the course of the trial, I have had to admonish or reprimand attorneys on both sides of the case because I did not believe that what one or more of them was doing was proper. You should draw no inference against a attorney or his or her client. It is irrelevant whether you like a lawyer or whether you believe I like a lawyer. The issue before you is not which attorney is more likeable or the better attorney. The issue is whether or not the government has sustained its burden of proof.

[U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]

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

VOLUME 3 - CHAPTER 16

RATIONALE: The purpose of instructing jurors that counsel has the duty or right to interview witnesses in advance of the trial is to prevent or offset the prejudice which may result when an attorney questions a witness about his interview with opposing counsel. Without special instruction the jurors may assume the interview was improper, which may lead the jurors to draw improper inferences against the attorney and his or her client.

POINTS AND AUTHORITIES: Many courts have recognized that counsel has the right, if not the duty, to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. (See e.g., Nealy v. Cabana (5th Cir. 1985) 764 F2d 1173, 1177; see also State v. Tokman (MS 1990) 564 So2d 1339, 1342; Ferguson v. State (MS 1987) 507 So2d 94, 95; State v. Hofstetter (WA 1994) 878 P2d 474, 478;.) This duty is reflected in the American Bar Association Standards for Criminal Justice. (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) 3.1(c), at 3/38-39 (2d ed. 1982).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 11.3].

USE NOTES: The duty or right to interview does not extend to potential witnesses covered by testimonial privilege. (See Netto v. Goldenberg (IL 1994) 640 NE2d 948, 955.) In such cases, an instruction modified to accommodate this exception may be necessary to prevent juror speculation as to why some witnesses were interviewed, while others were not. (See Sample Instruction # 4.)

    When a potential witness declines to be interviewed, the instruction may also state that the law does not require the witness to speak to the attorney. (See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL IPI-Criminal 4th 3.10, note [Right Of Attorney Or Attorney’s Investigator To Interview Witness] (West 4th ed. 2000).)  (See Sample Instruction # 5.)

See Manual On Recurring Problems In Criminal Trials [4. Interviewing Of Government Witnesses By Defense Counsel: General Principles].

See also Manual On Recurring Problems In Criminal Trials [4a. Interviewing Of Government Witnesses By Defense Counsel: Both Sides May Interview].

See also Manual On Recurring Problems In Criminal Trials [4b. Witness May Refuse To Be Interviewed By Defense Counsel].

See also Manual On Recurring Problems In Criminal Trials [4c. Government May not discourage interviewing of witnesses by defendant].

See also Manual On Recurring Problems In Criminal Trials [4d. Interviewing Of Government Witnesses By Defense: Government May Request A Temporary Restraining Order To Prevent Harassment].

    It is proper for an attorney to interview any witness in preparation for trial.

[7th CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 1.07 [Attorney Interviewing Witness] (1999).]

    As an officer of the court it is an attorney's  right and duty to interview witnesses in advance of trial.

[See generally Nealy v. Cabana (5th Cir. 1985) 764 F2d 1173; see also State v. Tokman (MS 1990) 564 So2d 1339; Ferguson v. State (MS 1987) 507 So2d 94.]

    It is perfectly proper for a lawyer or a lawyer's investigator to talk with a prospective witness before or during trial.  For example, a lawyer [or a lawyer's investigator] may talk to a witness to find out what the witness knows about the case and what the testimony of the witness will be.

[See generally Nealy v. Cabana (5th Cir. 1985) 764 F2d 1173; see also State v. Tokman (MS 1990) 564 So2d 1339; Ferguson v. State (MS 1987) 507 So2d 94.]

    An attorney may properly interview a witness for the purpose of learning what testimony the witness will give. The fact that the witness has talked to the attorney and told him what he would testify to does not, by itself, reflect adversely on the truth of the testimony of the witness.

[See Netto v. Goldenberg (IL 1994) 640 NE2d 948, 955.]

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

VOLUME 3 - CHAPTER 16

    See NCJIC 16.14.1 [Bench Conference].

See also Manual On Recurring Problems In Criminal Trials [5a. Bench Conferences: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 1.07.

See also 9th Circuit Model Jury Instructions - Criminal 2.2.

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

 VOLUME 3 - CHAPTER 16

RATIONALE: There may be a danger of the jury drawing adverse inferences based on the byplay between or among counsel. Jury reliance on such exchanges would be improper since they are neither evidence nor argument to the jury.

POINTS AND AUTHORITIES: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (1991) 1.09 [Lawyer's Objections]; Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS (1988) Inst. No. 9 [Standard Introduction to the Charge].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 11.3].

SAMPLE INSTRUCTION:

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

VOLUME 3 - CHAPTER 16

    16.13.5    Discussion Between Court And Counsel: Cautionary Instruction

RATIONALE: The colloquy between court and counsel constitutes neither evidence nor proper argument to the jury.

POINTS AND AUTHORITIES: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (1991) 1.09 [Lawyer's Objections]; Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS (1988) Inst. No. 9 [ Standard Introduction to the Charge].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 10.1; 11.3].

SAMPLE INSTRUCTION:

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

VOLUME 3 - CHAPTER 16

RATIONALE: An instruction may be necessary to counteract the inference that an objection made by a party is intended to "hide" prejudicial material.

POINTS AND AUTHORITIES: Because the jury may infer that an objection made by a party in front of the jury is intended to "hide" prejudicial material, it may be appropriate to specifically instruct the jury not to draw such an inference. (5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (2001) 1.01 paragraph 17 [Preliminary Instruction]; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (1991) 1.09 [Lawyer's Objections].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 11.3].

    At times during the trial the lawyers may make an objection to something that has happened such as the questioning by the opposing lawyer.  The lawyers have the right and duty to make such objections.  Do not draw any inference from the fact that an objection was made and do not speculate as to the lawyer's motivation for making the objection.

SAMPLE INSTRUCTION # 2:

    Do not draw anyinferences whatsoever from the fact that an attorney has made a particular objection here in court.  The attorneys have the right and duty to make whatever objections they believe are necessary.

    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 relate only to the legal questions that I must determine and should not influence your thinking.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Preliminary Instruction] ¶ 17 (2001).]

    During the trial counsel made statements, comments and argument when making various objections. You must not draw any conclusion from counsel's objections -- or from how I ruled or what I said in ruling.  Do not conclude, for example, that I believe the particular testimony is true or false or that I believe the defendant is guilty or not guilty.  If an objection is sustained and an answer or other evidence is therefore not allowed, do not speculate as to what that answer or evidence might have shown if it had been allowed.

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

VOLUME 3 - CHAPTER 16

PRACTICE NOTE:  See United States v. Amlani, 111 F3d 705 (9th Cir. 1997) [a prosecutor's repeated disparagement of an attorney in front of his client, denied the defendant his right to chosen counsel].