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24.2 What Is Evidence

    24.2.2 What Is Evidence: Witness Demeanor

    24.2.2.1 Jury Should Consider Demeanor Of Witness While Testifying
    24.2.2.2 Jury Must Not Consider Demeanor Of Witness While Not Testifying
    24.2.2.3 Jury Should Not Consider Demeanor Of Person Reading Prior Testimony Into The Records       

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PRACTICE NOTE: It is within the province of the jury to consider the demeanor of a witness while testifying in evaluating credibility and, in fact, the jury is often instructed that it may consider the witness’ demeanor or manner of testifying. (See, e.g., 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.8 [Credibility Of Witness] (2000).)

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

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RATIONALE: Without special instruction the jury may not understand that the demeanor of a witness, while not testifying is not evidence and that consideration of such nontestimonial matters would be juror misconduct.

POINTS AND AUTHORITIES: It is, of course, within the province of the jury to consider the demeanor of a witness while testifying in evaluating credibility and, in fact, the jury is often instructed that it may consider the witness’ demeanor or manner of testifying. (See, e.g., 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.8 [Credibility Of Witness] (2000).) While normally this may not be a problem when the witnesses are excluded before and after their testimony, it could be an issue if the prosecution has been permitted to have a designated prosecuting officer present throughout trial or if the witnesses are not excluded from the courtroom. Moreover, the witness may say or do things immediately before or after his or her testimony which would be improper for the jury to consider and this instruction should be applicable to that situation as well.

    One way to prevent or offset the prejudice which may result, is to move for mandatory exclusion of nontestifying witnesses. (See e.g., FRE 615; see Cissell, Federal Criminal Trials, 5th Ed. § 18-6.) However, FRE 615 retains the exception for investigating officers. And, there may be additional exceptions related to expert witnesses who, out of necessity, must be present during the testimony of witnesses upon which the expert testimony is based. (See FRE 615; see also U.S. v. Phillips (E.D. Ky. 1981) 515 FSupp 758, 761 [psychiatrist allowed to assist prosecutor during testimony of defense experts]; see also Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) 18-6; O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 5.10 [Admonitions] (West, 5th ed. 2000).)

    Accordingly, whenever nontestifying witnesses are present in the courtroom a cautionary instruction may be appropriate.

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

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [Exclusion Of Witnesses From Courtroom: General Principles].

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

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RATIONALE: When evidence comes from a person other than a witness (e.g., a stipulation, deposition or other prior testimony, etc.) the demeanor of the person who states or reads the evidence to the jury is not evidence. Because the jury may not understand this, a limiting instruction may be appropriate.

POINTS AND AUTHORITIES: Many standard instructions inform the jury that when matters such as a stipulation, deposition testimony, other prior testimony, is read to the jury, the jury should "consider that testimony in the same way as if it had been given here in court." (See, e.g., 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.3 [Stipulated Testimony] (2000 Rev.).) However, the demeanor or manner of the reader is obviously not a matter for the jury’s consideration. Accordingly, the jury should be instructed to disregard the demeanor of the reader.

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

PRACTICE NOTE: Such an instruction may be especially appropriate if the prosecutor is the reader, since subtle, or not so subtle, changes in tone of voice, etc., may improperly convey the prosecutor's personal opinion regarding the truth or falsity of the testimony. (See e.g., FORECITE National™ 272.4.5 [Prosecutor Misconduct: Improper Vouching For Witness].)

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

    Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.6, ¶ 3 [Deposition As Substantive Evidence] (2000).]