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24.3 What Is Not Evidence

    24.3.1 What Is Not Evidence: Miscellaneous Matters

    24.3.1.1 Charges Are Not Evidence
    24.3.1.2 Matters Heard Outside The Courtroom Are Not Evidence
    24.3.1.3 Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered
    24.3.1.4 Jury Must Not Consider Counsel’s Arguments On The Admissibility Of Evidence
    24.3.1.5 Arguments Of Counsel Are Not Evidence
    24.3.1.6 Transcript Of Disputed Electronic Recording Is Not Evidence
    24.3.1.7 Whether Jury View Is Evidence
    24.3.1.8 Instructions Are Not Evidence
    24.3.1.9 Questions To Witnesses Are Not Evidence

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    See NCJIC 12.2 [Preliminary Instructions: Role Of Charging Document].

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RATIONALE: Without special instruction the jury may improperly consider matters other than the evidence presented in court.

POINTS AND AUTHORITIES: See 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 1.03, paragraph 4; 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (2002) 1.05 [Evidence; Objections; Rulings; Bench Conferences]; see also Judge William W. Schwarzer, "Communicating With Juries: Problems and Remedies," 69 Calif. L Rev 731 (1981).

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

USE NOTE: This instruction may have to be modified if there was a jury view. (See NCJIC 24.2.6 [Jury View As Evidence]; NCJIC 25.4 [Jury View Of The Scene].)

See 1st Circuit Pattern Jury Instructions - Criminal 3.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.06.

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

See also 7th Circuit Federal Jury Instructions - Criminal 1.06.

See also 9th Circuit Model Jury Instructions - Criminal 1.4.

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

    I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, documents and other things received as exhibits, any facts that have been stipulated--that is, formally agreed to by the parties, and any facts that have been judicially noticed--that is, facts which I say you may, but are not required to, accept as true, even without evidence.

    Certain things are not evidence. I [shall] [will] list those things for you now:

    1.    Statements, arguments, questions and comments by lawyers representing the parties in the case are not evidence.

    2.    Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

    3.    Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.

    4.    Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.

[8th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.03 [Evidence; Limitations] ¶¶ 1-6 (2000); see also1st CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.05 [Evidence; Objections; Rulings; Bench Conferences] (2002).]

    Matters which are not proper evidence and which you must not consider as evidence include the following:

    1.    Statements, arguments, questions and comments by the lawyers.

    2.    Objections and rulings on objections.

    3.    Any testimony I told you to disregard.

    4.    Anything you saw or heard about this case outside the courtroom.

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RATIONALE: The jury may be influenced by the reaction of the judge, prosecutor or spectators to the evidence, for example by facial expressions.

POINTS AND AUTHORITIES: Any reactions to the evidence, such as facial expressions or gestures, by the judge, attorneys, parties or spectators is not evidence. (See e.g., California Evidence Code § 140.) Accordingly, because reactions to the evidence can be highly prejudicial (see People v. Lucero (CA 1988) 44 C3d 1006, 1022-24 [245 CR 185]), the jury should be cautioned by an instruction similar to the ones set forth below. (See also U.S. v. Schuler (9th Cir. 1987) 813 F2d 978, 979-82 [improper for prosecutor to comment on courtroom behavior of nontestifying defendant]; see also NCJIC 19.2.1 [Multi-Defendant Trial -- No Emphasis Of Individual Defendant].).

    Jury consideration of such improper matters may lessen the prosecution's burden of proof in violation of the defendant's federal (6th and 14th Amendments) constitutional rights to fair trial by jury and due process. (See State v. Martin (NM 1984) 686 P2d 937, 942-43 [cumulative impact of irregularities, including head movements and facial expressions made by the trial judge, deprived the defendant of her constitutional right to a fair trial].)

    See NCJIC 16.15.3 [Jury Not To Consider Reaction To Evidence By Court Personnel].

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

PRACTICE NOTE: Because nonverbal reactions to the evidence will not normally appear in the record, it may be necessary to describe the specific gestures for the record. (See e.g. State v. Martin, supra, 686 P2d at 945; see also NCJIC 2.5.7 [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].)

Annotation, Gestures Or Facial Expressions Of Trial Judge In Criminal Case, Indicating Approval Or Disapproval, Belief Or Disbelief, As Ground For Relief, 49 ALR3d 1186.

See 1st Circuit Pattern Jury Instructions - Criminal 3.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.06.

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

See also 7th Circuit Federal Jury Instructions - Criminal 1.06 .

See also 9th Circuit Model Jury Instructions - Criminal 1.4.

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

    Any reactions to the evidence by the judge, court personnel, attorneys, defendant or spectators are not evidence and must not be considered for any purpose. It is your duty to disregard any such reactions to the evidence.

    Do not draw any inferences whatsoever from inflections in my voice, expressions on my face or from any gestures I might make.

    You must not consider anything I have said or done, including any expressions on my face, as indicating my opinion about the facts of this case.

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RATIONALE: If the jury has heard arguments regarding the admissibility of evidence it may be appropriate to specifically instruct the jury that such arguments are not evidence. Although the jury is often generally instructed that the arguments of counsel are not evidence, this could be viewed as limited to opening statements and closing arguments.

    A specific limiting instruction would be especially appropriate when counsel has made "speaking objections" where the evidence is characterized in the guise of making an objection.

POINTS AND AUTHORITIES: See NCJIC 16.13.5 [Discussion Between Court And Counsel: Cautionary Instruction].

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

See 1st Circuit Pattern Jury Instructions - Criminal 3.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.06.

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

See also 7th Circuit Federal Jury Instructions - Criminal 1.06 .

See also 9th Circuit Model Jury Instructions - Criminal 1.4.

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

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    See NCJIC 24.3.2 [What Is Not Evidence: Arguments Of Counsel].

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    See NCJIC 25.9.2.1 [Transcript Of Recording Is Not Evidence: Jury To Rely Solely On Recording].

See 1st Circuit Pattern Jury Instructions - Criminal 3.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.06.

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

See also 7th Circuit Federal Jury Instructions - Criminal 1.06 .

See also 9th Circuit Model Jury Instructions - Criminal 1.4.

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

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    See NCJIC 25.4.2 [Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence].

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RATIONALE: Instructions are legal principles for evaluating evidence, not the evidence itself. The jury may think the instructions include evidentiary facts, inferences or conclusions which it is the jury’s role to determine. An admonition may be necessary to clarify the role of the jury and to ensure that only admissible evidence is considered.

POINTS AND AUTHORITIES: See generally 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (2002) 1.05 [Evidence; Objections; Rulings; Bench Conferences].

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

See 1st Circuit Pattern Jury Instructions - Criminal 3.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.06.

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

See also 7th Circuit Federal Jury Instructions - Criminal 1.06 .

See also 9th Circuit Model Jury Instructions - Criminal 1.4.

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

    You have already heard the evidence. Nothing in my instructions to you is evidence. 

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RATIONALE: Without a limiting instruction the jury may improperly tend to consider the questions asked of a witness as evidence.

POINTS AND AUTHORITIES: Questions are not themselves evidence. (See e.g., Commonwealth v. Alvarado (MA 2000) 737 NE2d 905, 909; State v. Griffin (NC 2000) 525 SE2d 793, 805; People v. Ortiz (NY 1987) 522 NYS2d 647, 648; Kimball v. State (TX 2000) 24 SW3d 555, 561; see also NCJIC  251.4.3.1 [Good Character Of Defendant: Limitation On Jury’s Consideration Of Rebuttal Witnesses Offered By Prosecution].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1; 7.3].

    A question is not evidence, and may be considered only as it supplies meaning to the answer.  Do not assume that alleged facts included in a question are true.