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

 VOLUME 13 - CHAPTER 276
Go to Volume 13 Table of Contents  -  Go to Chapter 276 Table of Contents

276.5 Jury Reliance On Common Sense

    276.5.1 Limitation On Jury Use Of Common Sense
    276.5.2 Limitation Of Common Experience Or Common Sense Where It May Contradict Expert Testimony
    276.5.3 Juror Reliance On Common Sense: Improper As To Whether Conduct Was Unlawful
    276.5.4 Jury Reliance On Matters Of Common Knowledge And Science

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

 VOLUME 13 - CHAPTER 276

RATIONALE: Where a juror has special knowledge or expertise beyond what would be common knowledge to the average juror, it may be improper for the jury to rely on the special knowledge or expertise. Such special knowledge, expertise and/or experience -- whether considered by the juror individually or discussed with the other jurors during deliberations -- may constitute impermissible extra-judicial evidence. It effectively makes the juror an "expert witness" without providing for cross-examination or any of the other safeguards which apply to witnesses who testify in court. Therefore, it may be appropriate to instruct the jury in this regard.

POINTS AND AUTHORITIES: Juror consideration of extraneous evidence is misconduct which implicates the rights of the defendant. (See NCJIC 300.31.1 [Jury Consideration Of Extraneous Evidence].) Hence, while a juror should be permitted to rely on his or her common knowledge and experiences, this should not be extended to areas of special knowledge, expertise or experience. (See State v. Brooks (ND 1994) 520 NW2d 796, 798; State v. Goseland (KS 1994) 887 P2d 1109, 1113.)

    As with jury experiments, when "expert" opinions are submitted to the jury during deliberations "'the jury has been itself talking evidence without the knowledge of either party, evidence which is not possible for the party injured to meet, answer, or explain.' [Citation.] ... Jurors cannot be permitted to investigate the case outside the courtroom. They must decide the guilt or the innocence of the defendant upon the evidence introduced at trial. It is impossible for this court to say that this outside investigation did not affect the results as to the character of the verdict rendered. For, when misconduct of jurors is shown, it is presumed to be injurious to the defendant, unless the contrary appears.' [Citation.]" (Bell v. State of California (1998) 63 CA4th 919, 931.) [74 CR2d 541].)

    See also NCJIC 276.5.4 [Instruction On Juror's Common Knowledge/Matters Of Common Knowledge And Science].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.10].

See generally, NCJIC 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    It is for you to determine what weight and credit, if any, to give the testimony of each witness. In so doing, consider the ability and opportunity of the witness to observe and know the things about which he or she has testified.  Also consider the witness's memory, manner and conduct while testifying, interest in the result of this trial, and the reasonableness of the testimony considered in the light of all the evidence in this case. You may also evaluate the testimony of a witness in light of the knowledge and experience which you possess in common with others and in light of your common sense. However, do not consider any knowledge or experience that you do not share in common with other people.

[See State v. Goseland (KS 1994) 887 P2d 1109, 1115-16; cf. PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.09 [Evidence And Guides For Its Consideration-Credibility Of Witnesses] (Kansas Judicial Council, 3rd ed. 1999).]

    You may, in addition to the evidence offered in this case, take into consideration in connection therewith such matters of common knowledge and science as are known to all persons of ordinary understanding and intelligence. That is, you come into this jury box as reasonable persons of experience and affairs, bringing that knowledge which is common to all persons. You are to weigh this testimony in the light of those matters of common knowledge and science as are known to all persons of ordinary knowledge, understanding, and intelligence.

[Source: State v. Brooks (ND 1994) 520 NW2d 796, 798.]

    In evaluating the evidence you may consider matters of common knowledge which are known to all persons of ordinary understanding and intelligence. That oil is lighter than water and that there are 60 seconds in a minute are examples of such common knowledge.

[Source: NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal K-5.20 [Matter Of Common Knowledge And Science] (State Bar Association of North Dakota, 1985).]

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

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: Typically the jurors are permitted to rely on their own common experiences and understanding. (See NCJIC 276.5.1 [Limitation On Jurors' Use Of Common Sense].) However, in some situation common experience or understanding may be contrary to reality. For example, there are matters relating to eyewitness identification which are contrary to what the understandings of the general public are. (See generally NCJIC 31.4 [Common Misconceptions Regarding Eyewitness Identification: Issues And Instructions].) Hence, an instruction which tells the jury to draw on their "life experiences" or "common sense" may be encouraging the jurors to use common notions of eyewitness psychology which are simply wrong.  For example, such mistaken assumptions can later play a crucial role in arguments in the juryroom: one juror’s common sense or experience can trump a specific caution concerning eyewitness performance. (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) 12-3, p. 332.)

See Benchbook For U.S. District Court Judges [2.08.1 General Instructions To Jury At End Of Criminal Case: Introductory Note].

See also Benchbook For U.S. District Court Judges [2.08.2 General Instructions To Jury At End Of Criminal Case: Outline Of Instructions Other Sources].

See also generally, NCJIC 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

See also generally, NCJIC 305.5.8 [Expert Testimony/Scientific Evidence].

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

 VOLUME 13 - CHAPTER 276

    276.5.3    Jury Reliance On Common Sense: Improper As To What Conduct Is Unlawful

RATIONALE: The jury may not understand that its right to use common sense in reaching a verdict does not extend to the decision of whether the defendant’s acts violated a specific law.

POINTS AND AUTHORITIES: Regardless of whether the jury may rely on common sense in resolving factual issues (see NCJIC 276.5.1 [Limitation On Jurors' Use Of Common Sense]), the jurors should not resort to common sense in deciding whether the acts or conduct of the defendant violated a specific law. "The jury should not be permitted...to rely on common sense as to what conduct is unlawful or on a generalized belief that a defendant was up to no good." (U.S. v. Rohn (4th Cir. 1992) 964 F2d 310, 314.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.10].

STRATEGY NOTE: In cases where the defense is hoping for jury nullification (see NCJIC Chapter 280 [Jury Nullification]) counsel will probably not want to ask for any instructions limiting the jurors' use of common sense.

See generally, NCJIC 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    To convict the defendant of the charged crime you must find beyond a reasonable doubt that the defendant violated the specific law upon which the charge is based. Hence, you may only convict the defendant if each of the required elements upon which you have been instructed has been proven beyond a reasonable doubt. You are not permitted to rely on your common sense as to what conduct is unlawful or on a generalized belief that the defendant's conduct should be unlawful. Your disapproval of the defendant’s conduct is not a sufficient basis upon which to convict him/her.

[Source: NCJIC.]

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

 VOLUME 13 - CHAPTER 276

RATIONALE: Jurors are not expected to forget their life experience or accumulated common knowledge when hearing evidence and deliberating. Therefore, a cautionary instruction may be appropriate as to the permissible use of the jurors' common knowledge and experience.

POINTS AND AUTHORITIES: Jurors may apply their accumulated common knowledge to the facts and circumstances of a case and "draw reasonable inferences therefrom." (See e.g., Campbell v. Norris (8th Cir. 1998) 146 F3d 606, 607; see also State v. Brooks (ND 1994) 520 NW2d 796, 799; State v. Krummacher (OR 1974) 523 P2d 1009, 1015; Ramdass v. Commonwealth (VA 1993) 437 SE2d 566, 572; 1st CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.06 [Credibility Of Witnesses] ¶1, sent. 3-4 (2002); (ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 103 [Introduction Instruction-Jury-Personal Observations And Experiences] (Lexis, 2nd ed. 1997); COLORADO JURY INSTRUCTIONS, COLJI - Crim 3:01 [Duty Or Function Of Judge And Jury] last paragraph (West, 1983); MICHIGAN CRIMINAL JURY INSTRUCTIONS 2.16, ¶ 2 [Visiting Scene/Conducting Experiments] (ICLE, 2nd ed. 1999); NORTH DAKOTA PATTERN JURY INSTRUCTIONS - NDJI - CRIMINAL K-5.20 [Matter Of Common Knowledge And Science] (State Bar Association of North Dakota (1985); UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON) UcrJI 1005 [Inferences] (Oregon State Bar, 1998); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL l-17-1 [Jury-Functions-Responsibility] (State Bar of South Dakota, 1996); WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS JI-Criminal 195 [Jurors’ Knowledge] (University of Wisconsin Law School, 1999).)

    This includes, for example, observations as to sobriety (State v. Gracia (CT 1998) 719 A2d 1196, 1204) and matters of science and physical dynamics (NORTH DAKOTA PATTERN JURY INSTRUCTIONS - NDJI-CRIMINAL K-5.20 [Matter Of Common Knowledge And Science] (State Bar Association of North Dakota (1985).

    But see NCJIC 16.6.2 [Improper Use Of Dictionary, Reference, Reading Or Research Materials].

   Some courts take a more expansive view of what constitutes a juror's common sense in concluding that expertise in particular subjects is not extraneous evidence. (State v. Aguilar (AZ 1991) 818 P2d 165 [medical doctor who disagreed with defendant's expert told fellow jurors so during deliberations]; see also Jordan v. Alaska (AK 1971) 481 P2d 383, 388.)

    See also NCJIC 276.5.2 [Limitation Of Common Experience Or Common Sense Where It May Contradict Expert Testimony].

    See also NCJIC 276.5.1 [Limitation On Jurors' Use Of Common Sense].

PRACTICE NOTE: This issue highlights the importance of voir dire for learning whether a potential juror has special information or expert knowledge relevant to the case. Counsel may wish to use a peremptory challenge to strike such a potential juror. (See Arizona v. Dickens (AZ 1996) 926 P2d 468, 478.)

BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Vol. 13, No. 11 (6/2/99).

See also generally, NCJIC 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    You may, in addition to the evidence offered in this case, take into consideration in connection therewith such matters of common knowledge and science as are known to all persons of ordinary understanding and intelligence. That is, you come into this jury box as reasonable persons of experience and affairs, bringing that knowledge which is common to all persons. You are to weigh this testimony in the light of those matters of common knowledge and science as are known to all persons of ordinary knowledge, understanding, and intelligence.

[Source: State v. Brooks (ND 1994) 520 NW2d 796, 798.]

    You should use your own common sense and general knowledge in weighing and judging the evidence, but you must not use any personal knowledge you may have about a person, place or event. You must decide this case based only on the evidence admitted during this trial.

[Source: NCJIC.]

    You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 1.04 [Weighing The Evidence-Inferences] ¶ 1 (1999).]