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VOLUME 4 - CHAPTER 24
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24 Table of Contents
24.2 What Is Evidence
24.2.3 What Is Evidence: Stipulations
24.2.3.1 Stipulations: Instruction Regarding Stipulation
24.2.3.2 Stipulations As To Testimony: Better Practice Is To Submit In Writing
24.2.3.3 Stipulations: Instruction As To Remaining Disputed Issues Or Elements Where Stipulation Is Not To All Issues
24.2.3.4 Stipulation Of Fact: Requirement Of Waiver Where Fact Goes To Essential Element Of Charge
24.2.3.5 Stipulation As Strategy For Removing Issue From Jury
24.2.3.6 Stipulations: Federal Circuit Model Instructions And Notes
24.2.3.7 Stipulations That Are Legal As Well As Factual:
Inclusion In Jury Instructions
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24.2.3.1 Stipulations: Instruction Regarding Stipulation
RATIONALE: Stipulations are a special type of evidence about which the jury may need specific instruction.
POINTS AND AUTHORITIES: Stipulated facts are binding on the jury as to the factual issue. While stipulated testimony is not binding as to the factual issue: "There is a distinction between an agreed statement of facts and evidence offered by way of stipulation. Under an agreed statement of facts both [the prosecution] and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves....¶ On the other hand, when evidence is offered by way of stipulation, there is no agreement as to the facts which the evidence seeks to establish." (Barnes v. State (MD 1976) 354 A2d 499, 505.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1; 7.3].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [1a.Stipulation Of Facts: General Principles].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 24.2.3.6 [Stipulations: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1 [Stipulations Of Fact]:
Earlier you were told that the prosecution and the defendant agreed, or stipulated, that __________ (insert stipulated fact). This means simply that both sides accept the fact that __________. There is no disagreement over that, so there was no need for evidence by either side on that point. You must accept that as fact, even though nothing more was said about it one way or the other.
[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 12 [Stipulation Of Facts] (1988).]
SAMPLE INSTRUCTION # 2: [Stipulations Of Testimony]:
Earlier you were told that the prosecution and the defendant agreed, or stipulated, that __________ (insert stipulated testimony). That would be __________'s testimony if [he] [she] were called as a witness. You will consider that to be the testimony of __________ as if [he] [she] appeared in court and so testified.
[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 11 [Stipulations Of Testimony] (1988).]
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24.2.3.2 Stipulations As To Testimony: Better Practice Is To Submit In Writing
PRACTICE NOTE: "The better practice is that stipulations be presented in writing, admitted as a court exhibit and read to the jury, but not given to the jury with other exhibits." (COLORADO JURY INSTRUCTIONS, COLJI - Crim 4:11 [Stipulation As To Testimony] use note [1993 pocket part] (West, 1983).)
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [1a.Stipulation Of Facts: General Principles].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 24.2.3.6 [Stipulations: Federal Circuit Model Instructions And Notes].
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24.2.3.3 Stipulations: Instruction As To Remaining Disputed Issues Or Elements Where Stipulation Is Not To All Issues
RATIONALE: When a stipulation is made as to one of several issues there is a danger that the jury will not limit its consideration to the proper issue.
POINTS AND AUTHORITIES: Where there is stipulation as to testimony, the parties may contest the truth or accuracy of that testimony. (See U.S. v. Garcia (8th Cir. 1979) 593 F2d 77, 79.) In such a situation, it may be appropriate to instruct the jury on the factual issues or elements that remain disputed. (8th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.02 [Stipulated Testimony], comment (2000); see also U.S. v. Renfro (6th Cir. 1979) 600 F2d 55, 59 [instruction regarding disputed factual areas given where only authenticity was stipulated].) Hence, where there is stipulation as to a particular aspect of testimony, but there remains contested issues as to the testimony, the jury should be instructed as to the factual areas that remain disputed.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [1a.Stipulation Of Facts: General Principles].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 24.2.3.6 [Stipulations: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
You will recall that many exhibits were introduced upon the stipulation of the Defense Counsel. I repeat to you now that counsel's stipulation went only to _______________ [e.g., the authenticity of the document in question]. In other words, counsel was stipulating that _______________ [e.g, the document] was authentic and it was not necessary, therefore, for __________________ [e.g., the Government to call a witness to the stand to establish that he had prepared the document or had seen someone else prepare it and that it had been kept on file in the regular course of business].
Whether these documents so stipulated to are evidence of ______________ [e.g., payments made by the defendant] is a matter for you to decide from the other evidence, if any, and from the reasonable inferences you may draw from such evidence.
[See U.S. Renfro (6th Cir. 1979) 600 F2d 55, 59-60.]
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24.2.3.4 Stipulation Of Fact: Requirement Of Waiver Where Fact Goes To Essential Element Of Charge
PRACTICE NOTE: Special caution must be exercised when an offered stipulation removes an element of the crime from the jury’s consideration. In that situation, the defendant may have to personally waive the right to have the jury find the element beyond a reasonable doubt. (See State v. Villareal (WI 1989) 450 NW2d 519, 520-21; see also UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON) UCrJI 1059, comment [Stipulations Of Fact] (Oregon State Bar, 1998); 8th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.03 [Stipulated Facts], comment (2000).)
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [1a.Stipulation Of Facts: General Principles].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 24.2.3.6 [Stipulations: Federal Circuit Model Instructions And Notes].
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24.2.3.5 Stipulation As Strategy For Removing Issue From Jury
See FORECITE National™ 39.1 [Stipulation].
RESEARCH NOTES:
See "Stipulations to Exclude Other Act Evidence: What Is Adequate?," by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 10, No. 1, (Spring 1995) pp. 39-42.
See also "Stipulations by the Defense to Remove Other Act Evidence," by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 9, No. 4, (Winter 1995) pp. 35-39.
See also "Stipulations, Part III, Convicted Felons on Trial," by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 10, No. 2, (Summer 1995) pp. 31-34.
See also Manual On Recurring Problems In Criminal Trials [1a.Stipulation Of Facts: General Principles].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 24.2.3.6 [Stipulations: Federal Circuit Model Instructions And Notes].
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24.2.3.6 Stipulations: Federal Circuit Model Instructions And Notes
RELATED FEDERAL MODEL INSTRUCTIONS:
See 1st Circuit Pattern Jury Instructions - Criminal 2.01.
See also1st 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 8th Circuit Model Jury Instructions - Criminal 2.02.
See also 8th Circuit Model Jury Instructions - Criminal 2.03.
See also 9th Circuit Model Jury Instructions - Criminal 1.3.
See also 9th Circuit Model Jury Instructions - Criminal 2.3.
See also 9th Circuit Model Jury Instructions - Criminal 2.4.
See also 9th Circuit Model Jury Instructions - Criminal 3.7.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 11.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 12.
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24.2.3.7 Stipulations That Are Legal As Well As Factual: Inclusion In Jury Instructions
PRACTICE NOTE: See 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.01 [Stipulations] (2002), comment.