THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 4 - CHAPTER 24
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24.2 What Is Evidence
24.2.5 What Is Evidence: In-Court Demonstrations
24.2.5.1 In-Court Demonstrations: Explanatory Instructions
24.2.5.2 Video Taped Demonstrations: Cautionary Instruction
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 4 - CHAPTER 24
24.2.5.1 In-Court Demonstrations: Explanatory Instructions
RATIONALE: In-court demonstrations by a witness, which will not appear in the shorthand notes of the court reporter, are nonetheless evidence and the jury should be instructed that such demonstrations are evidence and special caution should be given when reading back testimony that includes demonstrations by the witness.
POINTS AND AUTHORITIES: Physical demonstrations by a witness given as part of that witness’s testimony, are evidence upon which the jury should rely when considering the case. (See e.g., Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 1999) § 34:5 B.) Accordingly, the jury should be so instructed.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].
CAVEAT: Counsel should bear in mind that such demonstrations will not normally be reflected in the record as prepared by the court reporter. This is significant for purposes of a readback of testimony to the jury and for purposes of appeal. To the extent that the specific gesture can be verbally clarified, such clarification would be helpful. (See NCJIC 2.5.7 [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].)
Moreover, when testimony including demonstrations or gestures by the witness is readback to the jury both the jury and the person conducting the readback should be instructed that the jury must rely on its own recollection of the gesture and any attempt to recreate the gesture by the reporter or person reading back the testimony should not be allowed and should be disregarded by the jury. (See NCJIC 24.2.5 [What Is Evidence: In-Court Demonstrations].)
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, NCJIC 24.2.6.3 [In-Court Demonstrations: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
During the testimony of _______________ (name of witness) he/she physically demonstrated in your presence certain conduct concerning which he/she was giving testimony. Such physical demonstration, as observed by you, is to be considered as part of ___________’s (name of witness) overall testimony. You are to evaluate such demonstration in the same manner as any other testimony, and give it such weight as you deem appropriate.
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 4 - CHAPTER 24
24.2.5.2 Video Taped Demonstrations: Cautionary Instruction
See NCJIC 25.9.6.1 [Video Taped Demonstrations: Cautionary Instruction].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, NCJIC 24.2.6.3 [In-Court Demonstrations: Federal Circuit Model Instructions And Notes].