1.    Jury May Consider Prior Summation To Jury By Prosecutor As Statement Against Interest

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2.    Summaries Of Evidence

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CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

    The government's summaries do not give effect to the contentions of the accused defendant. All they purport to be is of the evidence marshalled by the government against the accused. These summaries should be treated as though each were captioned with a statement that they present the government's position and do not purport to fairly summarize all of the evidence in the case.

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SAMPLE INSTRUCTION # 3:

    In determining what weight to give summary exhibits, the jury may consider whether the exhibit purports to include evidence which was offered by both sides or whether it is limited to evidence which was offered by only one side.

SAMPLE INSTRUCTION # 4:

    You are instructed that the charts prepared by the state consist only of a representation of some of the documentary evidence offered by the state, and do not include similar documentary evidence offered by the defendant. Accordingly, these charts purport to summarize only that evidence which the state has concluded supports its theory of prosecution.

SAMPLE INSTRUCTION # 5:

    In considering the summary charts which have been displayed to you, you may consider whether they purport to contain evidence offered by both the defendant and the government, or whether they purport to include only evidence offered by one of the parties. Similarly, in determining to what extent you may be helped by these charts, you may consider whether they include non-documentary evidence, such as testimony, which is necessary to an understanding of the charts and what they represent.

3.    Summary Charts: Cautionary Instruction

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4.    Summary Witness: Cautionary Instruction

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SAMPLE INSTRUCTION # 2:

    You have heard summaries by persons who are represented by the government to be expert witness. The testimony of this summary witness was only for the purpose of assisting you to understand the evidence which had been previously introduced in the record. The purpose of a summary witness is not to argue the case for a party. The Court instructs you that the credibility of this witness goes to the fairness of the impartiality of his testimony.

    In weighing the testimony of a summary witness, you may take into consideration whether the witness considered exhibits introduced by both parties or whether the witness considered exhibits offered by only one party.

SAMPLE INSTRUCTION # 4:

    You have heard summaries by persons who are represented by the government to be expert witnesses. The testimony of these summary witnesses was only for the purpose of assisting you to understand the evidence which had been previously introduced in the record. These witnesses did not testify to their own knowledge of any of the events which are relevant to these proceedings. The Court instructs you that the credibility of these witnesses goes to the fairness of the preparation of their exhibits, and the impartiality of their testimony, rather than to their recollection of the events which form the basis of this prosecution.

SAMPLE INSTRUCTION # 1:

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SAMPLE INSTRUCTION # 2:

    A summary may only be considered by the jury if it finds that there is competent evidence in the record to support that which appears in the summary. A summary should not be used by the jury to pass upon the credibility of witnesses. The jury may consider whether the summary purports to include all of the evidence, or merely the evidence which favors one side or the other.

SAMPLE INSTRUCTION # 3:

    In considering the summary exhibits which the government has placed before you and which have been admitted, the jury should not assume that merely because facts appear in the summary that these facts have already been proven; nor should it assume the credibility of the witnesses whose testimony it may reflect. If the summary presents the assumptions of the person who prepared it, then the jury must determine whether such assumptions were proven by evidence in the record; and, if not, what effect such unproven assumptions would have upon the summarized evidence in the exhibit.

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SAMPLE INSTRUCTION # 4:

    In considering the summary exhibits which the state has placed before you, and which have been admitted, the jury should not assume that merely because facts appear in the summary that these facts have already been proven. Nor should the jury consider the summary as a substitute for assessing the credibility of the witnesses whose testimony it may reflect. If the summary presents the assumptions of the agent who prepared it, then the jury must determine whether such assumptions were proven by evidence in the record and, if not, what effect such unproven assumptions would have upon the summarized evidence in the exhibit.

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SAMPLE INSTRUCTION # 5:

    The charts admitted as evidence make certain assumptions concerning the transactions in this case. Any such chart must rest on certain assumptions. The essential requirement is not that the charts be free from reliance on any assumptions, but rather that these assumptions be supported by evidence in the record.

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    Although the summaries have been admitted in evidence, they only purport to summarize the documented detailed evidence which was previously admitted. The jury should examine the basis upon which the summaries rest and be satisfied that they accurately reflect other evidence in the case. If not satisfied, the summary should be disregarded.

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SAMPLE INSTRUCTION # 1:

    You have been shown charts and other demonstrative exhibits. These are not evidence. If they are helpful to you in remembering evidence, you may consider them, but you should always remember that they are not in themselves evidence.

SAMPLE INSTRUCTION # 2:

    The government has introduced some summary charts into evidence. Such charts are inherently dangerous to an accused for a jury is often unfairly and unduly impressed by the apparent authenticity of a government witness's chart computations, as such, rather than by the truth and accuracy of the underlying facts and figures supporting them. Accordingly, I instruct you that such summary charts are not proof of the facts therein stated, and are merely for purposes of assisting you in recalling the evidence and in relating items of evidence. The charts have no independent existence nor independent importance. The jury must always bear in mind that it is the credibility of the witnesses whose testimony may be reflected in the charts, and the reliability and authenticity of the documents which are presented in the charts, which constitutes the evidence in the case.

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SAMPLE INSTRUCTION # 3:

    Summaries have been prepared by agents of the state and have been admitted in evidence. They are received for the purpose of explaining facts disclosed by books, records and other documents which are in evidence in this case. However, such charts or summaries are not in and of themselves evidence or proof of any facts. If such charts or summaries do not correctly reflect facts or figures shown by the evidence in the case, the jury should disregard them.

    In other words, such charts or summaries are used only as matter of convenience. So if, and to the extent that, you find that they are not in truth summaries of facts or figures shown by the evidence in the case, you are to disregard them entirely.

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SAMPLE INSTRUCTION # 4:

    Summary exhibits purport to be only the government's submission of the government's theory of the case.

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    The state has placed in evidence a number of exhibits which appear in the form of summaries. Such exhibits are admissible, but I caution the jury that this is an exhibit constructed by state agents and you are not to give any emphasis to the size of this exhibit any more than you would if you were examining it on a piece of paper of normal size. Undoubtedly the state's purpose in putting it on an easel and in this size is merely for the convenience of the jury in seeing it.

    But I don't want the jury to get any wrong idea about what these summaries are. They are just a reflection of what witnesses may have said and documents may have contained, and you are to pay attention to, and be governed by the evidence, and not by what is on the summaries. If you don't think that the evidence sustains the summaries, then you should pay attention to the evidence and not to the summaries.

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SAMPLE INSTRUCTION # 1:

    The testimony of a summary witness is for the purpose of assisting the jury in understanding the evidence. The purpose of a summary witness is neither to argue the case for the party, nor to introduce new evidence in support of it.

SAMPLE INSTRUCTION # 2:

    The testimony of a summary witness is for the purpose of assisting the jury in understanding the evidence it has heard. The summaries are not in themselves evidence and the opinions of a summary witness should be weighed and considered on the basis of the qualifications and experience of the purported expert.

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SAMPLE INSTRUCTION # 3:

    The purpose of a summary witness is not to argue the case for a party. The Court instructs you that the credibility of this witness goes to the fairness of the impartiality of his testimony.

    In weighing the testimony of a summary witness, you may take into consideration whether the witness considered exhibits introduced by both parties or whether the witness considered exhibits offered by only one party.

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SAMPLE INSTRUCTION # 1:

    In considering the testimony of the government's expert witnesses insofar as this testimony is supposed to recount the testimony of prior witnesses, it is your memory of the prior testimony which controls and not the memory of the government's expert. In some instances the expert will have had the assistance of a transcript of the witness' testimony. Where such transcripts are used, you may conclude, if you wish, that the witness' recollection of the testimony will be more accurate.

SAMPLE INSTRUCTION # 2:

    In considering the testimony of the government's summary witnesses insofar as this testimony is supposed to recount the testimony of prior witnesses, it is your memory of the prior testimony which controls and not the memory of the government's summary witness.

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SAMPLE INSTRUCTION # 3:

    The testimony of an expert witness who purports to summarize the testimony of preceding witnesses is not evidence of that previous testimony. It is only the jury's recollection of the prior testimony which may be considered as evidence in this case.

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    The government has called as its summary witnesses persons whom it represents as being experts in the analysis of evidence. In determining what weight to give to the testimony of these summary witnesses you should consider the extent to which the qualifications and expertise of the witness related to the testimony which was elicited from (him/her).

    For example, a person may be qualified as an expert in one field and asked to testify in an entirely different field or only in a related field. In weighing the testimony of these summary witnesses you should consider the extent to which their education and qualifications permit them to give opinion testimony and summary testimony with any greater clarity, understanding and comprehension than any other witness.

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SAMPLE INSTRUCTION # 1:

    In weighing the testimony of a summary witness, you may take into consideration, if you wish, whether the witness included exhibits introduced by both parties or whether the witness considered exhibits introduced by only one party. Further, you may take into consideration whether the witness considered the testimony of the other witnesses upon the trial in interpreting the evidence which appears in the summary.

SAMPLE INSTRUCTION # 2:

    In weighing the testimony of the summary witnesses, you may take into consideration, if you wish, the failure of these witnesses to examine defense exhibits and other exhibits which may be inconsistent with the exhibits which appear in their summary charts. You may find that these other exhibits have no relevance to the government's case and then you should draw no inference from the failure of these experts to include them. If, on the other hand, you find that they were intentionally omitted in order to distort the information presented in the summary exhibits, then you may take this into consideration in weighing the government's evidence.

SAMPLE INSTRUCTION # 3:

    The government has called several persons which it has asserted are experts and which were used by the government in presenting summary testimony. In weighing the testimony of these summary witnesses and in considering the summary charts which they prepared you may consider whether they included all of the evidence heard by the jury relative to a given transaction or whether they included in their summaries and charts only that evidence which supported the government's theory of prosecution.

SAMPLE INSTRUCTION # 4:

    It is a common practice to use a chart as a testimonial aid for witnesses and as a visual aid for counsel in argument. On occasion such charts are submitted to the jury. In determining what use you may make of these charts, you should remember that they merely purport to represent a fraction of the evidence you have heard. In determining whether these charts fairly present the government's position, you must consider not only the evidence which appears on the charts, but the evidence which has not been included.

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