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VOLUME 3 - CHAPTER 16
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16.3 Duty Of Jury As To The Evidence

    16.3.1 Jury Must Consider All Of The Evidence
    16.3.2 Jury Must Consider Evidence But Need Not Believe It
    16.3.3 Jury Not To Be Influenced By The Relative Number Of Witnesses: Cautionary Instruction
    16.3.4 "Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses
    16.3.5 Whether Jury Should Be Instructed That It Must Attempt To Resolve Conflicts In The Evidence
    16.3.6 Jury Consideration Of The Evidence: Federal Circuit Model Instructions And Notes

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RATIONALE: While the jury has no obligation to accept any evidence or testimony, it does have a duty to fairly consider the evidence before deciding whether to accept or reject it. Because the jury may not understand this duty, it may be appropriate to instruct regarding the distinction between the juror's obligation to consider all evidence presented and their duty to decide what evidence to accept.

POINTS AND AUTHORITIES: It is, of course, well settled that the jurors are the "sole judges of the facts" and may give the evidence and witnesses whatever weight, if any, the jury chooses. (8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.01 [General: Nature Of Case; Nature Of Indictment; Burden Of Proof; Presumption Of Innocence; Duty Of Jury; Cautionary] ¶ 3 (2000).) However, this does not allow the jury to simply ignore or not consider evidence that has been presented. (See Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence].)

    For example, an instruction on a defense theory such as voluntary intoxication is defective if it informs the jury that consideration is permissive rather than mandatory. (See NCJIC 256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider]; see also NCJIC 251.4.2.4 [Good Character Evidence: Jury "Must" Consider]; cf. United States v. Marcucci (9th Cir. 2002) 299 F3d 1156 [stating that the grand jury "should"-- rather than "shall" or "must" – indict if it finds probable cause, "leaves room–albeit limited room– for a grand jury to reject an indictment that, although supported by probable cause, is based on governmental passion, prejudice, or injustice"].)

    See NCJIC 16.3.2 [Jury Must Consider Evidence But Need Not Believe It].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.4; 7.1; 4.1].

See generally NCJIC 16.3.6 [Jury Consideration Of The Evidence: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Basic Instructions 5, [Credibility Of Witnesses] ¶ 1, sent. 1-2 (1997) [emphasis in original].]

    You are to consider all the evidence given in this trial.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 7, sent. 5 (1988).]

    You are to consider both direct and circumstantial evidence.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.6 [Direct And Circumstantial Evidence] sent. 4 (2000).]

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RATIONALE: While the jury has no obligation to accept any evidence or testimony, it does have a duty to fairly consider the evidence before deciding whether to accept or reject it. Because the jury may not understand this duty, it may be appropriate to instruct regarding the distinction between the juror's obligation to consider all evidence presented and their duty to decide what evidence to accept.

POINTS AND AUTHORITIES: See NCJIC 16.3.1 [Jury Must Consider All Of The Evidence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.4; 7.1].

See generally NCJIC 16.3.6 [Jury Consideration Of The Evidence: Federal Circuit Model Instructions And Notes.

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RATIONALE: Without a cautionary instruction, the jury may improperly be influenced by the sheer number of witnesses rather than the probative value of those witnesses.

POINTS AND AUTHORITIES: See People v. Rincon-Pineda (CA 1975) 14 C3d 864, 883-85 [123 CR 119] [instruction required sua sponte].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].

See 11th Circuit Pattern Jury Instructions - Criminal BI 5.

    You are not bound to find any issue of fact in accordance with the testimony of any number of witnesses which does not produce in your mind belief in the likelihood of truth as against the testimony of any other witness or any other evidence which does produce such belief.

[U.S. v. Wolfe (5th Cir. 1980) 611 F2d 1152, 1155.]

    Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. Also, the number of witnesses testifying concerning any particular dispute is not controlling.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Basic Instructions 5 [Credibility of Witnesses] ¶ 1 (1997) [Emphasis in original].]

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PRACTICE NOTE: Some standard pattern instructions admonish the jury not to decide an issue of fact in accordance with the number of witnesses. (SeeNCJIC 16.3.3 [Jury Not To Be Influenced By The Relative Number Of Witnesses: Cautionary Instruction].) However, when the defense has presented no witnesses there is a danger that such an instruction will undermine the prosecution's burden of proof. (See e.g., U.S. v. Moss (4th Cir. 1984) 756 F2d 329, 334; see also Barnes v. U.S. (DC App. 1973) 313 A2d 106, 110.)

    Hence, when the defendant calls no witnesses the "number-of-witnesses" instruction should not be given.

See 11th Circuit Pattern Jury Instructions - Criminal BI 5.

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    16.3.5    Whether Jury Should Be Instructed That It Must Attempt To Resolve Conflicts In The Evidence

RATIONALE: Instructing the jury to attempt to resolve any conflicts in the evidence may help to avoid the danger that jurors will simply abstain from deliberation as to issues where evidence or testimony is in conflict. This would result a denial of the defendant’s right to have all significant evidence considered by the jury, and would also be an abdication of the jury’s primary purpose, which is to act as triers of fact, weighing the credibility and persuasive weight of the evidence. On the other hand, in some cases reconciliation of conflicting evidence or testimony could harm the defense (such as where the credibility of a witness or evidence is a major issue).

POINTS AND AUTHORITIES IN FAVOR OF THE INSTRUCTION: "From the direct conflict in the testimony... jury questions were presented. The credibility and weight of the evidence and the legitimate inferences it afforded were for the jury. In other words, the weight to be given the evidence, its sufficiency in general, its probative value, or force, and the credibility of the witnesses where, upon the whole testimony, an issue of fact arises, are for the exclusive consideration and determination of the jury. The jury determine the weight to be given the testimony of the witnesses by their demeanor or conduct on the stand, their interest in the case, the probability or improbability of their testimony, its corroboration, the facts bearing on their credibility [and] their intelligence and knowledge[.]" (Arnold v. State (AL 1947) 30 So2d 587, 588.)

POINTS AND AUTHORITIES IN OPPOSITION TO THE INSTRUCTION: There is a risk that jurors may wrongly interpret a "duty to reconcile" instruction as requiring them to presume all witnesses are truthtellers, and as barring them from considering credibility issues if the evidence is otherwise unreconcilable. (See United States v. Brown, 555 F2d 407 (5th Cir. 1977); United States v. Holland, 537 F2d 821 (5th Cir. 1976); United States v. Varner, 748 F2d 925 (4th Cir. 1985); but see United States v. Dorsey, 45 F3d 809 (4th Cir.), cert. denied, 115 SCt 2631 (1995) ["presumption of truthfulness" instruction was not plain error where defendant failed to object to it at trial]; United States v. Hall, 854 F2d 1036, 1040-41 (7th Cir. 1988) [it is not reversible error to give "a presumption of truthfulness" instruction, bu the "safest course" is to refrain from giving it].)  "[I]n providing that the jury should reconcile, if possible, conflicting testimony, the instruction subtly perpetuate[d] the presumption specifically disapproved by this court ... namely that 'a witness is presumed to speak the truth.'" (State v. Percy (VT 1990) 595 A2d 248, 251 [citing State v. Snide (VT 1989) 560 A2d 380, 381 and Oksoktaruk v. State (AK 1980) 611 P2d 521, 526].) "Instructions to presume that witnesses are truthtellers pass dangerously close to unconstitutional shifts in the State's burden of proof and the presumption of innocence, and threaten to diminish the jury's role as the arbiter of credibility."  (Snide, 560 A2d at 381.) Therefore defense counsel can challenge a proposed "reconciliation" instruction by identifying credibility issues which are critical to the defense, and by pointing out the danger that this instruction appears to require reconciliation irrespective of how serious a question may exists as to the authenticity or credibility of evidence or testimony. A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part of it since it is the duty of the jury to ascertain the truth of the case from the opinion it entertains of all the evidence submitted for its consideration. (Walls v. State (GA 1951) 63 SE2d 437, 438.)

OPINION AVAILABLE: Click here. [Opinion Bank # O-301.] 

    Where there is a conflict in testimony, you may decide to resolve that conflict one way or the other. But you should first try to reconcile, that is, fit together, any conflicts in the testimony if you can fairly do so.

[See generally Commonwealth v. Kibler (PA 1969) 258 A2d 681.]

    The law recognizes that where there are two or more witnesses to a given situation, they may not all remember the same facts in the same way. They may not all observe and remember exactly the same facts because of differences in faculties or observation, and also because of the weakness of human nature in remembering events, facts, or conversations.

    Witnesses may be absolutely honest and yet disagree in regard to details. And it is for you to say after considering all the evidence what weight you will give to the testimony of each. It is your duty to reconcile conflicting testimonies if you can. If you cannot so reconcile the testimony, then you will have to determine which of the witnesses is entitled to the greater credit. You can believe all that a witness says, or you can believe part of it and disbelieve part of it, or you can disbelieve all of it.

[State v. Percy (VT 1990) 595 A2d 248, 251.]

    If you find the testimony to be conflicting by reason of inconsistencies, it is your duty to reconcile it, if reasonably possible, so as to make one harmonious story of it all. But if you cannot do this, then it is your duty and privilege to give credit to that portion of the testimony which, in your judgment, is most worthy of credit and disregard any portion of the testimony which, in your judgment, is unworthy of credit. In so doing, you should take into consideration the demeanor of the witnesses as they testified before you, their apparent fairness in giving their testimony, their opportunities for learning and knowing the facts about which they testified, and any bias or interest that they may have concerning the outcome of the case.

[Graves v. Graves UNPUBLISHED (DE 1995) 1995 WL 766413.]

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    16.3.6    Jury Consideration Of The Evidence: Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 6.02.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.01A.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 4.2.