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Instructions And Issues Omitted By The Pattern Instructions
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24.1 Defining What Is And What Isn't Evidence

    24.1.1 Sample Composite Instruction Defining Evidence
    24.1.2 Defining What Is And What Isn't Evidence: Federal Circuit Model Instructions And Notes

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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 4 - CHAPTER 24

RATIONAL: During the course of a trial the jury is exposed to a number of different sources of evidence which potentially could be relied on during deliberations. However, because the jurors may not clearly understand what can and cannot be considered, it may be appropriate to specifically define the term "evidence."

POINTS AND AUTHORITIES: Most pattern instructions address, in some manner, the question of what the jury can and cannot consider as evidence. (See e.g., 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.04 [What Is Evidence; Inferences] (2002); 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.23 [Withdrawl Instruction] (2001); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.03 [Evidence; Limitations] (2000).) However, these pattern instructions typically omit potentially important evidentiary considerations. Hence, it may be appropriate to consider more complete instruction on this subject.

FEDERALIZATION:  To federalize this request, click here. [Constitutional Macro 7.1; 7.5; 7.6].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™  24.1.2 [Defining What Is And What Isn't Evidence:  Federal Model Instructions And Notes].

SAMPLE INSTRUCTION:

    Evidence which you may rely upon in your deliberations is the following:

    1.  Any sworn testimony of witnesses regardless of which party elicited the testimony (see FORECITE National™  24.2.1.2 [Evidence Includes Testimony And Exhibits Regardless Of Which Party Presented It]).

    2.  The demeanor of any witness while testifying (see FORECITE National™  24.2.2.1 [Jury Should Consider Demeanor Of Witness While Testifying]).

    3.  Exhibits which have been admitted into evidence (see FORECITE National™  24.2.1 [What Is Evidence: Testimony And Exhibits]).

    4.  Any facts which I have judicially noticed (see FORECITE National™   24.2.4 [What Is Evidence: Judicial Notice]).

    5.  Any facts to which the parties have stipulated (see FORECITE National™   24.2.3 [What Is Evidence: Stipulations]).

    6.  In-Court Demonstrations (see FORECITE National™   24.2.5 [What Is Evidence: In-Court Demonstrations]).

   7.  View of the scene (see FORECITE National™   25.4.2 [Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence]).

    Any other matter is not evidence.

    Matters which are not evidence and which you may not consider for any purpose include:

    1.  The charging document (see FORECITE National™  12.2.2 [Charging Document Is Not Evidence]).

    2.  Inadmissible stricken evidence (see FORECITE National™  24.3.3 [What Is Not Evidence: Excluded, Stricken Or Withdrawn Matters]).

    3.  Evidence which was withdrawn from your consideration or not received in evidence (see FORECITE National™  24.3.3.1 [Evidence Admitted But Later Withdrawn Must Not Be Considered]).

    4.  Exhibits which were received and marked for identification but not admitted into evidence (see FORECITE National™   25.2.2 [Cautionary Procedures And Instructions Regarding Exhibits Marked But Not Admitted Into Evidence]).

   5.  Questions put to witnesses except to give meaning to any answer given (see FORECITE National™   24.3.1.9 [Questions To Witnesses Are Not Evidence]).

    6.  Objections of the attorneys (see FORECITE National™  16.13.6 [Attorney Objections Do Not Indicate A Desire To Keep Anything From The Jury]).

    7.  Discussions between the attorneys (see FORECITE National™  16.13.4 [Byplay Between Counsel: Cautionary Instruction]).

    8.  Discussions between the judge and the attorneys including arguments on the admissibility of evidence (see FORECITE National™ 16.13.5 [Discussion Between Court And Counsel: Cautionary Instruction]).

    9.  Reactions to the evidence by the judge, attorneys, parties or spectators (see FORECITE National™   24.3.1.3 [Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered]).

    10.  The demeanor of any witness while not testifying (see FORECITE National™   24.2.2.2 [Jury Must Not Consider Demeanor Of Witness While Not Testifying]).

    11.  The conduct, demeanor and appearance of the defendant, except while testifying (see FORECITE National™  18.6.1 [Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying]).

    12.  View of the scene (see FORECITE National™   25.4.2 [Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence]).

    13.  Out-of-court observations, other than a court-approved view of the scene in which all jurors participate (see FORECITE National™ 18.6.1 [Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying]).

    14.  Any information from sources other than the sworn testimony, exhibits, stipulations, judicial notice [or view of the scene] (see FORECITE National™  16.4 [Juror Exposure To And Consideration Of Extrinsic Evidence And Other Matters Not Admitted Into Evidence]).

    15.  The jury instructions (see FORECITE National™  24.3.1.8 [Instructions Are Not Evidence]).

    Matters which are not evidence but which you should carefully consider in evaluating the evidence are:

    1.  Opening statements of the attorneys (see FORECITE National™   24.3.2 [What Is Not Evidence: Arguments Of Counsel]).

    2.  Closing arguments of the attorneys (see FORECITE National™   24.3.2 [What Is Not Evidence: Arguments Of Counsel]).

    3.  Notes you have taken during trial (see FORECITE National™  16.8.3.3 [Juror Notes Are Not Evidence]).

    4.  Transcripts of recordings offered to help in understanding the tape (see FORECITE National™   25.9.2.1 [Transcript Of Recording Is Not Evidence: Jury To Rely Solely On Recording]).

    5.  Visual aids used by the attorneys during their arguments to you (see generally FORECITE National™   272.6 [Summation/Closing Argument: Use Of Graphics And Enlargements]).

    6.  Charts, summaries, etc. used when a witness was examined but not admitted into evidence (see FORECITE National™   25.3.2 [Jury Consideration Of Charts, Summaries, Etc. Which Were Not Admitted Into Evidence]).

    7.  View of the scene (see FORECITE National™    25.4.2 [Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence]).

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 24

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.04.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.04.

See also 7th Circuit Federal Jury Instructions - Criminal 1.02.

See also 7th Circuit Model Jury Instructions - Criminal 1.03.

See also 9th Circuit Model Jury Instructions - Criminal 1.3.

See also 9th Circuit Model Jury Instructions - Criminal 3.7.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 4.1.