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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24.3 What Is Not Evidence

    24.3.3 What Is Not Evidence: Excluded, Stricken Or Withdrawn Matters

    24.3.3.1 Evidence Admitted But Later Withdrawn Must Not Be Considered
    24.3.3.2 Testimony In Response To Question To Which Objection Was Sustained Is Not Evidence
    24.3.3.3 Excluded Or Stricken Matters Are Not Evidence

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 24

RATIONALE: When evidence is withdrawn the jury an explanatory instruction may be necessary to assure that the jury understands that the evidence must not be considered.

POINTS AND AUTHORITIES: U.S. v. Wells (6th Cir. 1970) 431 F2d 432, 433-34; Danner v. Walters (NE 1951) 48 NW2d 635, 643.

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

See Manual On Recurring Problems In Criminal Trials [7c. Receipt Of Expert Testimony: When Evidence Has Been Withdrawn From Jury's Consideration].

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.

    Evidence has been admitted concerning __________. At the time the evidence was admitted, it was admitted subject to a further ruling by the Court. The Court now rules that: [you should not consider this evidence against the defendant ___________ ] [you should disregard the evidence entirely and not consider it for any purpose.]

    Certain testimony or other evidence has been ordered stricken from the record and you have been instructed to disregard this evidence. Do not consider any testimony or other evidence which has been stricken in reaching your decision. Your verdict must be based solely on the legally admissible evidence and testimony.

[See 5th CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.06 [Evidence-Excluding What Is Not Evidence] ¶ 2, sent. 3 (1999).]

    Do not consider, for any purpose, evidence I have ordered stricken or have told you to disregard.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 4 - CHAPTER 24

RATIONALE: In the instruction informing the jury what is and what is not evidence, the jury should also be told that any response to a question to which an objection was sustained is not evidence.

POINTS AND AUTHORITIES: Normally, the response of a witness to a question to which an objection was sustained will be ordered stricken at the time. At that time, the judge should also admonish the jury to disregard the stricken testimony. However, either through the inadvertence of counsel or the judge, there may be situations where the inadmissible answer, or a portion thereof, is not formally stricken or the jury is not formally instructed to disregard it at the time. Accordingly, a more general instruction should be given informing the jury that any response to a question to which an objection was sustained must be disregarded.

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

PRACTICE NOTE: If counsel believes that the testimony is favorable then, as a matter of strategy, counsel may not want to request that the testimony be stricken nor request an instruction such as the one set forth above. In fact, it could be argued based on waiver that if testimony has not been stricken, and no request to strike was made, the testimony may properly be considered by the jury. (See e.g., NCJIC 4.3.2.1 [Cautionary/Limiting Instructions Must Be Requested].)

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.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 24

RATIONALE: When matters are excluded or stricken from the record, an instruction admonishing them to rely only upon the admitted evidence may be needed to counteract the jurors’ natural curiosity and inclination to speculate about these matters.

POINTS AND AUTHORITIES: See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.04 [Evidence Defined] ¶ 4 (1991); see also NCJIC 25.10.2 [Cautionary Instructions Regarding Witness’ Stricken Reference To Polygraph Examination].

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

USE NOTE: The sample instruction below should be tailored to fit the particular facts of the case. If, for example, there was no occasion during the course of the trial to order that things the jurors saw or heard be stricken from the record, the language of the instruction dealing with such matters should be omitted. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.04 [Evidence Defined], commentary (1991).)

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.

SAMPLE INSTRUCTION:

    During the trial I did not let you hear the answers to some of the questions that the lawyers asked. I also ruled that you could not see some of the exhibits that the lawyers wanted you to see. And sometimes I ordered you to disregard things that you saw or heard, or I struck things from the record. You must completely ignore all of these things. Do not even think about them. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way.

[See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.04 [Evidence Defined] ¶ 4 (1991).]