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27.2 Miscellaneous Witness Credibility Factors    

    27.2.1 Witness Credibility: Factors Should Be Fully Explained
    27.2.2 Witness Credibility: Witness’s Power Of Discernment
    27.2.3 Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation
    27.2.4 Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed
    27.2.5 Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses
    27.2.6 Witness Credibility: Consideration Of Reasonableness Of Testimony
    27.2.7 Witness Credibility: Financial Interest Of Witness In Outcome Of Proceeding
    27.2.8 Witness Credibility: Understanding Of Questions
    27.2.9 Witnesses Credibility: Religious Beliefs Or Opinions To Show Interest Or Bias
    27.2.10 Witnesses Credibility: Youth/Age Of Witness
    27.2.11 Pre-Trial Silence Of Witness As To Exculpatory Evidence: Relevance Based On Foundational Facts
    27.2.12 Improper To Admonish Defense Witness Regarding Potential Perjury Liability
    27.2.13 Testimony Of A Child Witness: Cautionary Instruction
    27.2.14 Witness Credibility: Elderly Witness/Old Age Of Witness
    27.2.15 Witness Credibility: Federal Circuit Model Instructions And Notes
    27.2.16 Mental Condition May Impair Witness Credibility 

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    27.2.1    Witness Credibility: Factors Should Be Fully Explained

RATIONALE: Because evaluating witness credibility is "the sine qua non of the jury function," the relevant factors should be fully explained to assure that they are absorbed and retained by the jury.

POINTS AND AUTHORITIES: Most pattern instructions briefly list the factors for consideration in determining witness credibility without further explanation. (See e.g., MICHIGAN CRIMINAL JURY INSTRUCTIONS 2.6 [Judging Credibility And Weight Of Evidence] (ICLE, 2nd ed. 1999); MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 302.01 [Duties Of Judge And Jury] (Missouri Supreme Court Publications, 3rd ed. 1987); ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 1.06 [Witness-Credibility] (Alaska Bar Association, 1987); (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL No. 2.500 [Credibility Of Witness] (Lexis, 2000); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.7 [Ruling Of Objections] (2000); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.05 [Credibility Of Witness] (2000); 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.06 [Credibility Of Witnesses] (2002).)

    "The danger of that approach is that the factors will go by the jurors too quickly to be retained and absorbed. Although brevity ordinarily is a virtue, this is one area where a few extra words are worth the cost. Assessing credibility is the sine qua non of the jury’s function, making a more extensive explanation of these factors justified." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.07 [Credibility Of Witnesses], commentary (1991).)

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

PRACTICE NOTE: If the court refuses instruction on these expanded descriptions, it may be useful for counsel to incorporate such descriptions into his or her closing argument to the jury. (See FORECITE National™ 272.1 [Summation/Closing Argument: General Principles].)

See generally, FORECITE National™ 27.2.15  [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Regardless of whether a witness is attempting to be honest, the judgment, understanding and power of discernment of the witness may affect the accuracy of the testimony.

POINTS AND AUTHORITIES:  NEW JERSEY MODEL JURY CHARGES - CRIMINAL [Final Charge] p.12, 2/24/97 (New Jersey ICLE 4th ed. 1997).

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

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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    27.2.3    Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation

RATIONALE: If the witness was under the influence of drugs or alcohol at the time of the observation, this could impact the ability of the witness to observe and recall the events which were the subject of the testimony.

POINTS AND AUTHORITIES: Evidence that a witness was under the influence of alcohol or drugs when the events were observed may justify a special instruction. (See U.S. v. Kaplan (1st Cir. 1987) 832 F2d 676, 683-85; see also U.S. v. Vgeri (9th Cir. 1995) 51 F3d 876, 880-81 [instruction on this factor is appropriate]; People v. Barnett (CA 1976) 54 CA3d 1046, 1052 [127 CR 88][same].)

    See also FORECITE National™ 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed]; People v. English (NY 1987) 511 NYS2d 336. "An instruction informing the jury that it could consider the evidence that a witness was addicted to drugs at the time of the crime in judging the witness’s credibility may be appropriate." (People v. Franz (IL 1977) 368 NE2d 1091, 1095; but see People v. Drumwright (IL 1964) 199 NE2d 282, 286 [addict instruction is invasion of province of jury].)

    See FORECITE National™ 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].

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

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

    "In determining the credibility of a witness you may consider his capacity to hear or see that about which he [testified] [made out of court statements] and his ability to recollect or relate to such matters; specifically in this regard, you may consider whether any witness was under the influence of alcohol, drugs, or other intoxicants at the time he [testified] [made out of court statements]; and if you believe that any witness was under the influence of alcohol, drugs, or other intoxicants at the time of his [testimony] [out of court statements], you may but are not obligated to disregard or give little weight to his or her [testimony] [out of court statements] insofar as you find that his credibility has been impaired thereby; you may reach that conclusion if you find that as a result of being under the influence of alcohol, drugs, or other intoxicants while [testifying] [making out of court statements], such witness' ability to recollect and relate matters about which he or she [testified] [made out of court statements] was impaired."

[Source: People v. Barnett (CA 1976) 54 CA3d 1046, 1050, fn 2.]

SAMPLE INSTRUCTION # 3:

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RATIONALE: Because the jury may properly consider if the witness was under the influence of drugs or alcohol at the time he or she witnesses the event, it should be permitted to infer that a witness who is addicted to drugs may be under the influence at the time of the event.

POINTS AND AUTHORITIES: "An instruction informing the jury that it could consider the evidence that a witness was addicted to drugs at the time of the crime in judging the witness’s credibility may be appropriate." (People v. Franz (IL 1977) 368 NE2d 1091, 1095; but see People v. Drumwright (IL 1964) 199 NE2d 282, 286 [addict instruction is invasion of province of jury]; U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1527.)  "All circuits addressing the issue have described a cautionary instruction concerning addict-witnesses as desirable." (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 7-9.1, Comment, p. 7-38; see e.g., United States v. Bernard, 625 F2d 854, 859 (9th Cir. 1980 [on remand, "trial judge would be wise to incorporate effect of addiction into the jury instruction"]; United States v. Collins, 472 F2d 1017, 1018-19 (5th Cir. 1972) [clear right to instruction if requested]; U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1527.)

    See also FORECITE National™ 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].

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

See generally, FORECITE National™ 27.2.15  [Witness Credibility:  Federal Circuit Model Instructions And Notes].

    The [testimony] [out of court statements]* of some witnesses must be considered with more caution than other witnesses.

    For example, a witness who was using addictive drugs at the time may have an impaired ability to perceive or remember the matters to which he or she has testified.

    So, while a witness of that kind may be entirely truthful when [testifying] [making out of court statements], you should consider that [testimony] [out of court statements] with more caution than that of other witnesses.

* See FORECITE National™ 27.5.1 [Witness Credibility: Applicability To Out Of Court Statements Or Declarants].

SAMPLE INSTRUCTION # 2:

[See THE Shellow Instructions: Mental Condition May Impair Witness Credibility.]

SAMPLE INSTRUCTION # 3:

    The testimony of a witness who was using drugs at the time of the events about which he or she testified may be less believable due to the impact of the drugs on his or her ability to perceive or relate the events in question.

[See generally Guam v. Dela Rosa, 644 F2d 1257 (9th Cir. 1980); cf., Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 7-9.1, p. 7-37.]

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RATIONALE: It should be beyond dispute that a witness who testifies while using or while under the influence of drugs or alcohol is more suspect than a witness who is not so impaired. It is appropriate to specifically instruct the jury that the testimony of a witness who was using or was under the influence of drugs or alcohol at the time of his or her testimony should be viewed with more caution than the testimony of other witnesses. (11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst. 1.3 [Accomplice-Addictive Drugs-Immunity] (1997).)

POINTS AND AUTHORITIES: See U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1527.

    See also FORECITE National™ 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].

    See also FORECITE National™ 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].

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

PRACTICE NOTE: Instruction Also Applicable To Out Of Court Statements. If appropriate, the instruction should be modified to apply to out of court statements as well as testimony. (See FORECITE National™ 27.5 [Witness Credibility: Out Of Court Statements].)

See generally FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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RATIONALE: The reasonableness of the testimony is logically a factor which should be considered in evaluating its credibility.

POINTS AND AUTHORITIES: The reasonableness of a witness' statements is a relevant factor in determining the credibility and weight to be given to the testimony. (Rogars v. St. Jude Hosp. (CA 1967) 252 CA2d 496, 501 [60 CR 528]; see also People v. Perkins (CA 1937) 8 C2d 502, 519 [66 P2d 631].)

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

PRACTICE NOTE: Instruction Also Applicable To Out Of Court Statements. If appropriate, the instruction should be modified to apply to out of court statements as well as testimony. (See FORECITE National™ 27.5 [Witness Credibility: Out Of Court Statements].)

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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RATIONALE: The financial interest of a witness should be specified so the jury understands that this motive is one of the factors to consider in evaluating witness credibility.

POINTS AND AUTHORITIES: "It is, of course, an elementary rule that the financial interest of a witness in the result of a case in which he testifies is a proper subject of cross-examination as tending to show his bias and affecting his credibility." (People v. Philpott (CA 1962) 201 CA2d 859, 864 [20 CR 540]; see also Calvert v. State Bar (CA 1991) 54 C3d 765, 777 [1 CR 684].)

    Hence, the jury may properly be instructed to consider a witness' interest in the outcome of the case in evaluating the credibility of the witness. (People v. Brown (CA 1943) 22 C2d 752, 758 [141 P2d 1] ["In determining the credibility of any witness ... you may also consider ... the interest or absence of interest in connection with the results of the issues before you"]; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.9 [Credibility Of Witness] (2000) ["...you may take into account ... the witness' interest in the outcome of the case ..."].)

    In some standard instructions this concept is arguably encompassed with the discussion of "bias, interest or motive." However, such instructions fail to specifically refer to an interest in the outcome of the case. Moreover, when a specific financial interest is involved based on matters which may not be within the jury's common knowledge, it may be necessary to identify the particular financial interest (e.g., financial interest of police in forfeiture proceeding.  (See FORECITE National™ 27.6.3 [Testimony Of Police Officers And Other Officials: Professional Interest As Credibility Factor]; FORECITE National™ 27.6.4 [Bias Of Police Or Government Witness: Potential Benefit From Forfeiture In Drug Case]); Presley v. Commonwealth (VA 1946) 38 SE2d 476 [where witness has interest in question at issue judge may instruct jury as to what circumstances are to be unfavorably considered in estimation of witness credibility].)

    See also FORECITE National™ 88.6.3.6 [Police Officer Expert: Possession for Sale -- Bias Due To Forfeiture].

    See also THE Shellow Instructions: Witness Credibility: Future Civil Action As Evidence Of Bias.

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

CAVEAT: It is error generally to single out the testimony of a civil defendant when instructing the jury regarding bias from a personal interest in the outcome of the case. (See People v. Brown (CA 1943) 22 C2d 752, 757 [141 P2d 1].) The same concerns apply with even greater force to the testimony of a criminal defendant. (See e.g., U.S. v. Bear Killer (8th Cir. 1976) 534 F2d 1253, 1260.) Hence, counsel should carefully consider the potential downside of focusing the jury on consideration of the personal interest of a witness in the outcome of the case when the defendant has testified. (See FORECITE National™ 18.5.1 [Credibility Of Defendant's Testimony: Relying On Defendant’s Interest In The Outcome Of The Trial]; FORECITE National™ 18.5.2 [Procedures And Instructions When Defense Counsel Believes That Defendant Will, Or Did, Commit Perjury].)

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Whether an answer is false depends upon how the witness understands the question and, therefore, this is a crucial factor in evaluating witness credibility.

POINTS AND AUTHORITIES: See U.S. v. Paolicelli (4th Cir. 1974) 505 F2d 971, 973 [a witness who does not understand the question and gives a nonresponsive answer does not commit perjury]; see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 23 [General Considerations In Evaluating Witnesses’ Testimony] p. 31 (1988).

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

PRACTICE NOTE: Instruction Also Applicable To Out Of Court Statements. If appropriate, the instruction should be modified to apply to out of court statements as well as testimony. (See FORECITE National™ 27.5 [Witness Credibility: Out Of Court Statements].)

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

    As I have just reminded you it is your job to decide if the government has proved the guilt of the defendant beyond a reasonable doubt. An important part of that job will be making judgments about the testimony of the several (many) witnesses (--including the defendant--) who testified in this case. You should decide whether you believe what each person had to say and how important that testimony was. In making that decision I suggest that you ask yourself a few questions: ... Did he or she appear to understand the questions clearly and answer them directly? ... These are a few of the considerations that will help you determine the accuracy of what each witness said.

[Source:  Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 23 [General Considerations In Evaluating Witnesses’ Testimony] (1988); see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.08 [Credibility Of Witnesses] (2001).]

    In evaluating the credibility of a witness you should consider whether the witness appeared to understand the questions clearly and answered them directly.

[Source: FORECITE National™.]

    You have heard the testimony of ______, and you may be wondering whether his young age should make any difference. What you must determine, as with any witness. is whether that testimony is believable. Did he understand the questions? Does he have a good memory? Is he telling the truth?

[Source:  Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 28 [Testimony Of A Child: Cautionary Instruction] ¶ 1 (1988).]

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RATIONALE: A person's religious beliefs could create a bias or interest that might be relevant to his or her testimony.

POINTS AND AUTHORITIES: NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 105.10 [Religious Beliefs Or Opinions] (TRCC, 1999).

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

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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    27.2.10    Witnesses Credibility: Youth/Age Of Witness

RATIONALE: Even though a child is generally considered competent to testify, the child’s age is a factor which the jury should consider in evaluating the credibility of the witness.

POINTS AND AUTHORITIES: Under the FRE 601 there is no specific age requirement for the competency of witnesses. Generally, a child witness is considered competent if the judge finds that the child can understand the difference between truth and falsehood and is aware of his or her duty to tell the truth. (See Wheeler v. U.S. (1895) 159 US 523 [16 SCt 93; 40 LEd 244]; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.10 [Age Of Witness], commentary (1991).)

    See also FORECITE National™ 27.2.13 [Testimony Of A Child: Cautionary Instruction].

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

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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RATIONALE: When the prosecution attacks the credibility of a witness based on his or her failure to come forward earlier, the jury should be required to consider other reasons why the witness might not have come forward.

POINTS AND AUTHORITIES: The failure of a defense witness to come forward with exculpatory evidence as to the defendant before trial may be admissible as bearing on the credibility of the witness. (People v. Tauber (CA 1996) 49 CA4th 518, 526 [56 CR2d 656].) However, the relevance of such pretrial silence is dependent on proof of foundational facts such as whether the witness knew the charges were pending against the defendant in sufficient detail to know that the information was exculpatory, that the witness had reason to make the information available, that the witness was familiar with means of reporting it to the authorities, and that the defendant or his lawyer, or both, did not ask the witness to refrain from coming forward. (See e.g., People v. Ratliff (CA 1987) 189 CA3d 696, 700-01 [234 CR 502]; see also Williams v. State (MD 1994) 639 A2d 180, 184-85 ["... for pre-arrest silence to have relevance ... it is necessary ... that the prosecutor: lay a 'proper foundation' for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities"]; but see Davis v. State (MD 1996) 686 A2d 1083, 1089-90 [to cross-examine alibi witness regarding his or her pretrial silence, state need only lay foundation consisting of establishing existence of relationship between witness and defendant, or circumstances, such that it would be natural response of witness to act to exonerate defendant, that is, relationship and/or circumstances of such nature that, if witness possessed evidence exculpating defendant, he or she would disclose it immediately to law enforcement authorities].)

    For example, in New York, specific rules have been established for determining when evidence concerning pre-arrest silence of a defense alibi witness is admissible. In People v. Dawson (NY 1980) 406 NE2d 771, 777, fn 4, it was held that the prosecution must establish the following foundation for admissibility of such evidence: 1) that the alibi witness was aware of the nature of the charges against the defendant for a sufficient time before trial to communicate with the law enforcement authorities; 2) that the witness knew he possessed exculpatory information; 3) that the alibi witness’s relationship with the defendant was such that he had a reasonable motive for acting to exonerate the defendant; 4) that the witness was familiar with the method of communicating his information to law enforcement authorities. (See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 7.28, comment [Impeachment Of Alibi Witness By Pre-Trial Silence: Introductory] (New York Office of Court Administration, 1983).) Accordingly, there may be a basis for challenging the admissibility of the pre-arrest silence evidence based on the reasoning of Dawson. Additionally, even if the evidence is admitted, a more detailed instruction focusing the jury on the Dawson criteria may be appropriate.

    See also FORECITE National™ 251.2.1.14 [Alibi: Witness Has No Duty to Reveal Alibi To Police Prior To Trial].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.8].

USE NOTE: If the exculpatory evidence implicates another person fear of retaliation may be another explanation for not coming forward.

CAVEAT: An instruction such as the one set forth below necessarily requires that the jury first be instructed to consider the failure of the witness to come forward earlier. If such an instruction will not otherwise be given counsel will have to decide whether specific instruction on this point unduly emphasizes the prosecution's challenge to the witness's credibility.

See generally, FORECITE National™ 27.2.15 [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See Commonwealth v. Turner (MA 1994) 640 NE2d 488, 489 [denial of right to fair trial where prosecutor intimidated defense witnesses with implied threats of perjury prosecution]; compare Siripongs v. Calderon (9th Cir. 1994) 35 F3d 1308, 1319 [comments may have been improper but did not render trial fundamentally unfair].

Annotation, Admonitions Against Perjury Or Threats To Prosecute Potential Defense Witness, Inducing Refusal To Testify As Prejudicial Error, 88 ALR4th 388.

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RATIONALE: The jury should understand and consider the credibility factors related to a child witness There may be basic difficulties with the testimony of a child, not readily apparent to the jury, which could affect the jury's evaluation of the child's credibility.

POINTS AND AUTHORITIES: See  Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 27 [Testimony Of Expert Witness] p. 36 (1988); see also Criminal Jury Instructions for District of Columbia (4th Ed.) 2.21 [Child’s Testimony]; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 340 [Credibility Of Child Witness] (University of Wisconsin Law School, 1999); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-15-7 [Witness-Child Witness] (State Bar of South Dakota, 1996).

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

Annotation, Instructions To Jury As To Credibility Of Child's Testimony In Criminal Case, 32 ALR4th 1196.

BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 417 ["Do child witnesses warrant a cautionary instruction?"].

Brannon, The Trauma of Testifying in Court for Child Victims of Sexual Assault v. the Accused's Right to Confrontation, 18 Law & Psychol. Rev. 439-60, (Spring 1994).

See also generally, FORECITE National™ 305.3.4 [Child Testimony].

See 7th Circuit Federal Jury Instructions - Criminal 3.23.

See also 9th Circuit Model Jury Instructions - Criminal 4.15.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 28.

    You have heard the testimony of __________, and you may be wondering whether [his] [her] young age should make any difference. What you must determine, as with any witness, is whether that testimony is believable. Did [he] [she] understand the questions? Does [he] [she] have a good memory? Is [he] [she] telling the truth?

    Because young children may not fully understand what is happening here, it is up to you to decide whether __________ understood the seriousness of [his] [her] appearance as a witness at this criminal trial. In addition, young children may be influenced by the way that questions are asked. It is up to you to decide whether __________ understood the questions asked of [him] [her]. Keep this in mind when you consider __________'s testimony.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 28 [Testimony Of A Child: Cautionary Instruction] (1988).]

   You must evaluate the testimony of a child in the same manner as any other witness.  Consider any applicable credibility factors upon which you have already been instructed.  Among the factors which may be particularly important to a child witness are:

    1.    The ability of the witness to understand the questions and to answer them.

    2.    The sense of duty of the witness to speak the truth.

    3.    Any interest or bias the witness may have.

[Source: FORECITE National™.]

    As with any other witness if is up to you to decide how much weight, if any, to give a child witness.  In making that evaluation consider the witness's intelligence, ability to understand and answer the questions, appreciation of the duty to tell the truth and any other relevant factor.

[Source: FORECITE National™.]

[Source: FORECITE National™; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.21 [Child’s Testimony] (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: The age of a witness could impair his or her ability to perceive and/or recall the events described in the testimony of the witness.

POINTS AND AUTHORITIES: In some situations it may be appropriate for the jury to consider the age of the witness in evaluating the credibility of his or her testimony. (See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 1.03 [Testimony Of Witnesses (Deciding What To Believe)] Committee comment (1999).)  In such circumstances, it may be appropriate to instruct the jury to consider "the witness's age." (Ibid.)

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

See generally, FORECITE National™ 27.2.15  [Witness Credibility:  Federal Circuit Model Instructions And Notes].

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See 1st Circuit Pattern Jury Instructions - Criminal 1.06.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.08.

See also 7th Circuit Federal Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 3.04.

See also 9th Circuit Model Jury Instructions - Criminal 1.8.

See also 9th Circuit Model Jury Instructions - Criminal 3.9.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 5.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 23.

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    See The Shellow Instructions: Mental Condition May Impair Witness Credibility