Chapter 27

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27.1 General Rules

    27.1.1 Witness Credibility: Improper To Limit Jury's Right To Reject Witness Testimony
    27.1.2 Credibility Of Witness: Jury May Believe A Portion Of Testimony
    27.1.3 Witness Credibility: Proof Of Bias Almost Always Relevant
    27.1.4 Witness Credibility: Improper To Place Burden Of Proof On Defendant

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27.1.1 Witness Credibility: Improper To Limit Jury's Right To Reject Witness Testimony

PRACTICE NOTE: "Credibility of witnesses is a fact finding decision of the jury. It is prejudicial error to instruct the jury that (1) it may reject the testimony of a witness only for good reason or (2) it should reject such testimony only if irreconcilable with other testimony it believes to be true. [Citation.]" (NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 5.2, comment [Evaluation Of Testimony-Credibility Of Witness] (West, 2nd ed. 1992).)

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27.1.2 Credibility Of Witness: Jury May Believe A Portion Or Part Of Testimony

RATIONALE: Without specific instruction, the jury may not understand that it is not bound to accept or reject the testimony of a witness in toto.

POINTS AND AUTHORITIES: It is a well-settled principle that the jury may accept some portions of a witness's testimony and reject other portions. (See Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-7(c), p. 304 [Witness Credibility: Jury May Accept Or Reject Witness' Testimony In Whole Or In Part]; People v. Wickersham (CA 1982) 32 C3d 307, 328 [185 CR 436]; People v. Ceja (CA 1994) 26 CA4th 78, 86 [31 CR2d 475]; U.S. v. Arache (1st Cir. 1991) 946 F2d 129, 138; Gordon v. Benson (CO 1996) 925 P2d 775, 778-79; People v. Negron (NY 1998) 699 NE2d 32, 34; LaFoon v. State (TX 1976) 543 SW2d 617, 620; O’Malley, Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 15.01 [Credibility Of Witnesses -- Generally] (West, 5th ed. 2000) ["After making your assessment concerning the credibility of a witness, you may decide to believe all of that witness' testimony, only a portion of it, or none of it"]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:84 [General Instructions-Weighing Evidence–Commentary] (West, 1999); and see (OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 405.20 [Credibility] (Anderson, 2000).)

See also NCJIC 28.6 [The Jury Need Not View All Parts Of The Statement Equally].

See also NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].

See also NCJIC 297.1.5 [Instruction That Applies A Rule To One Issue And Not To Another].

See also NCJIC 297.2.18 [Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions].

See also NCJIC 297.5.2 [Jury Not Constrained By Theories Advanced By Counsel].

See also NCJIC 265.2.2 [Lesser Included Offense: Jury Function Theory -- Jury's Discretion To Accept Or Reject The Evidence In Whole Or Part].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 7.1].

SAMPLE INSTRUCTION # 1:

You are not required to believe everything a witness says. You may believe all of it, part of it, or none of it.

[Source: Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.7 [Ruling Of Objections] (2000); see also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.05 [Credibility Of Witness] (2000); see also 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.06 [Credibility Of Witnesses] (1998); IOWA CRIMINAL JURY INSTRUCTIONS 100.5 [Evidence] (Iowa State Bar Association, 1991) .]

SAMPLE INSTRUCTION # 2:

You may believe or disbelieve all or any part of the testimony of any witness. You are required to decide what testimony is worthy of belief and what testimony is not worthy of belief. You do not have to believe any testimony or statement simply because it was given under oath.

[Cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 405.20, [Credibility] ¶ 4 (Anderson, 2000).]

SAMPLE INSTRUCTION # 3:

Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. Also, the number of witnesses testifying concerning any particular dispute is not controlling.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Basic 5 [ Credibility of Witnesses ] ¶ 1 (1997).]

SAMPLE INSTRUCTION # 4:

(1) Another part of your job as jurors is to decide how credible or believable each witness was. This is your job, not mine. It is up to you to decide if a witness's testimony was believable, and how much weight you think it deserves. You are free to believe everything that a witness said, or only part of it, or none of it at all. But you should act reasonably and carefully in making these decisions.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.07 [Credibility of Witnesses] (1991).]

SAMPLE INSTRUCTION # 5:

You are the sole judges of the credibility of each witness. You must decide for yourselves whether to believe the testimony of any witness and whether to believe all, or any part, or none of what a witness has said.

[Source: NCJIC.]

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27.1.3 Witness Credibility: Proof Of Bias Almost Always Relevant

PRACTICE NOTE: Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony. (See United States v. Keys, 899 F.2d 983, 987 (10th Cir. 1990).)

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27.1.4 Witness Credibility: Improper To Place Burden Of Proof On Defendant

RATIONALE: Without instruction the jurors may improperly assume that the defendant must prove that the defense witnesses were truthful or credible.

POINTS AND AUTHORITIES: By focusing on whether or not to "believe" the witness the credibility instructions may improperly suggest that the defense has the burden of proving that its witnesses are truthful or credible. Such a view would unconstitutionally deprive the defense of exculpatory evidence and shift the burden of proof in violation of the 5th, 6th and 14th Amendments. (See Cool v. United States, 409 US 100 (1972) [improper to instruct jury to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true]; see also Washington v. Texas, 388 US 14 (1967); In re Winship, 397 US 358 (1970).)

The defendant’s right to present to the jury exculpatory testimony is "impermissibly obstruct[ed]" if such testimony is "totally exlud[ed] . . ." (Cool v. United States, 409 US 100, 104.) "Moreover [such a result] also has the effect of substantially reducing the Government's burden of proof . . . By creating an artificial barrier to the consideration of relevant defense testimony . . . [it] reduced the level of proof necessary for the Government to carry its burden. Indeed . . . the effect . . . is to require the defendant to establish his innocence . . ." (Cool v. United States, 409 US at 104.) "[S]uch a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence . . ." (Ibid.; but see United States v. George, 319 F2d 77, 80 (6th Cir. 1963) [no constitutional problem is posed when the judge instructs a jury to receive the prosecution's accomplice testimony "with care and caution" ]; United States v. Bolin, 35 F3d 306, 308 (7th Cir. 1994); Cf. United States v. Nolte, 440 F2d 1124 (5th Cir. 1971).

See also NCJIC 18.4.1 [Defendant Not Required To Produce Any Evidence].