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VOLUME 2 - CHAPTER 12

RATIONALE: Many jurisdictions require that, before the opening statements of counsel, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. One of the foremost duties of the jury is to presume that the defendant is not guilty of the charges brought by the prosecution. Hence, an instruction which sets forth the charges and the duty to presume the defendant not guilty of those charges may be appropriate as a preliminary instruction.

POINTS AND AUTHORITIES: See U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843; see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Preliminary Instructions] (2001); see also 11th Circuit PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Instr. 1.2 [Preliminary Instructions Before Opening Statements (Long Form) (1997)]; O’Malley, Grenig & Lee FEDERAL JURY PRACTICE AND INSTRUCTIONS 10.01 [Opening Instruction] (West, 5th ed. 2000).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.1].

See also A Manual On Jury Trial Procedures [3.3.1 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.3A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also A Manual On Jury Trial Procedures [4.4A. Jury's Use Of Indictment (Criminal): Availability Of Indictment To Jury During Trial And Deliberations].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory Instructions].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.02.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 1.01.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 1.1.

SAMPLE INSTRUCTION # 1:

    This is a criminal case commenced by the (State) (Commonwealth) (United States), which I may sometimes refer to as "the prosecution" and sometimes as "the People," against defendant[s] _____________ [and] [_____________]. The case was initiated by way of an [information] [indictment], which [is summarized] [reads] as follows: [Here summarize or read the information or indictment.]

    You should understand that the [information] [indictment] is simply a charge by the prosecution to begin a case and that it is not, in any sense, evidence of the allegations it contains.

    The defendant[s] has [have] pleaded not guilty to the [information] [indictment]. [The defendant contends that [he] [she] is not guilty because [here insert the theory of defense, if requested.]]

    The prosecution has the burden or obligation of proving each of the essential elements of the crime[s] charged in the [information] [indictment] to you beyond reasonable doubt. This burden never shifts to the defendant even after the prosecution presents its evidence. The purpose of this trial is to determine whether or not the prosecution can meet this burden.

    I instruct you to presume that defendant ________________ is not guilty. [It would be beneficial at this point to instruct the jury generally as to the essential elements of the offense or offenses charged.]

[Source: Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL Trial Inst. 1.2. [The Charge-Presumption Of Innocence] (2000).]

    As you were told during the process of your selection, an indictment in a criminal case is merely the accusatory paper which states the charge or charges to be determined at the trial, but it is not evidence against the Defendant or anyone else. Indeed, the Defendant has entered a plea of Not Guilty and is presumed by the law to be innocent. The Government has the burden of proving a Defendant guilty beyond a reasonable doubt, and if it fails to do so you must find that Defendant not guilty... Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. 1.2. [Preliminary Instructions Before Opening Statements (Long Form)] (1997).]

    I remind you that the defendant is presumed innocent and that the government must prove the guilt of the defendant beyond a reasonable doubt. The defendant does not have to prove his innocence. If the defendant decides to present evidence, the government may introduce rebuttal evidence.

[Source: Adapted from 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Inst. 1 [General And Preliminary Instructions] (2001).]

    ... I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the government in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the government to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial.* The law does not require a defendant to prove his innocence or to produce any evidence. There is no burden on [the defendant] to produce any evidence.]

* But see NCJIC 6.2.20 [Avoiding Language That Burden Never "Shifts" To Defendant] for criticism of the "burden never shifts" language.

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 VOLUME 2 - CHAPTER 12

RATIONALE: Without special instruction the jury may improperly assume that the charging document has some evidentiary weight since sufficient evidence to charge the defendant was presumably presented to the prosecutor who filed the charges.

POINTS AND AUTHORITIES: The jury should be instructed that the charging document is not in evidence and should not in any way be considered in reaching its verdict. (See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.2 [The Charge-Presumption Of Innocence]] (2000); see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 3, p. 2 (1988); see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:09. [Charge The Jury–Reading Indictment] (West, 1988) "Even the mere implication, in language of the charge, that there might be some circumstances in which the indictment could be considered as [evidence against the defendant], has been deemed sufficient for reversal...." (Id. at 4:53; see also UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001, comment [General Instructions-Introduction] (Oregon State Bar, 1998 ) ["The Committee suggests that the terms indictment and information not be used. The jury does not need to know whether the case was heard by the grand jury"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].

See also A Manual On Jury Trial Procedures [3.3.1 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.3A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also A Manual On Jury Trial Procedures [4.4A. Jury's Use Of Indictment (Criminal): Availability Of Indictment To Jury During Trial And Deliberations].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory Instructions].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 3.05.

See also 8th Circuit Model Jury Instructions - Criminal 3.06.

See also 8th Circuit Model Jury Instructions - Criminal 3.07.

See also 8th Circuit Model Jury Instructions - Criminal 3.08.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 1.1.

    The charge against the defendant is contained in the indictment. The indictment is simply the description of the charge made by the government against the defendant; it is not evidence of anything].

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 3, p. 2. (1988).]

    This is a criminal case brought by the United States government. The government charges [or accuses] the defendant with [or of] _______. The charge against the defendant is contained in the indictment. The indictment is simply the description of the charge made by the government against the defendant; it is not evidence of anything.

[Source: See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.2 [The Charge-Presumption Of Innocence]] (2000).]

SAMPLE INSTRUCTION # 3:

    An indictment is merely a legal form by which a crime is charged. It is only an accusation. It is proof of nothing. It is not evidence. Its sole purpose is to inform the defendant[s] of the charges against [him] [her] [them].

[Source: Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 3:02. [Final Instructions To Jury -- Complete Charge After Trial–Murder]) (West, 1999).]

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 VOLUME 3 - CHAPTER 16

RATIONALE: If jurors are free to act as their own translators, even in part, then there is no assurance that the jury relied on a correct translation of the testimony.

POINTS AND AUTHORITIES: When a recording made in a foreign language has been translated an instruction informing the jurors to only consider the English transcript may be necessary. (See U.S. v. Pion (1st Cir, 1994) 25 F3d 18, 21; see also U.S. v. Valencia (5th Cir. 1992) 957 F2d 1189, 1194-95; Commonwealth v. Festa (MA 1976) 341 NE2d 276, 283; U.S. v. Carrera (E.D.N.Y. 1998) WL 903467, 2 ["when foreign language tapes are transcribed, jurors should be instructed that the transcript of the English translation, not the tape, controls"].) Whenever an official, court-approved translator or interpreter is used there is a danger that jurors who have some facility in the foreign language at issue may rely on their own knowledge of the language rather than the official translation. (See e.g., U.S. v. Franco (9th Cir. 1998) 136 F3d 622, 626.) Therefore, an instruction precluding the jurors from relying on their own translation should be considered. (See U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F3d 352, 254-55.)

    See also NCJIC 16.16.9 [Excusal Of Juror Based On Knowledge Of Language Being Interpreted].

    See also NCJIC 24.2.7.3 [Transcript Of Foreign Language Recording].

USE NOTE: See NCJIC 16.16.10 [Bilingual Jurors: A Juror’s Perceived Shortcomings In Translation Should Be Discretely Communicated To The Judge Through Written Messages].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7, 7.1].

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

See 9th Circuit Model Jury Instructions - Criminal 1.13.

See also 9th Circuit Model Jury Instructions - Criminal 3.20. 

    Languages other than English may be used during this trial. The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must not rely in any way upon your own interpretation or translation of the witness' words.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.13 [Jury To Be Guided By Official English Translation/Interpretation] 3.20 [Jury To Be Guided By Official English Translation/Interpretation] (2000); U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F3d 352, 254-55.]

    You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.18 [Foreign Language Recordings/Transcripts In English] ¶ 2, sent. 4 (1999).]

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RATIONALE: Jurors may draw an adverse inference from the fact that defendant has testified through an interpreter.

POINTS AND AUTHORITIES: It is well recognized that a defendant who does not speak English may use a qualified interpreter to translate his or her testimony and/or to communicate with counsel and the court. (See e.g., State v. Thien Duc Le (TN 1987) 743 SW2d 199, 202; see also Saintjour v. State (FL 1988) 534 So2d 874 [error to disparage individuals for failing to learn English].) When this occurs it may be appropriate to caution the jury not to draw any adverse inference against the defendant due to his or her use of an interpreter.

    See also NCJIC 16.16.7 [Use of Interpreter By Witness: Testimony Must Not Be Treated Differently].

    See also NCJIC 16.16.3 [Defendant's Right To Interpreter: Federal Constitutional Grounds].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.4; 2.2; 7.5].

PRACTICE NOTE: The defendant has the right to an interpreter during the reading of the instructions to the jury. (See e.g., People v. Chavez (CA 1991) 231 CA3d 1471, 1477 [283 CR 71].)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

    I have determined that the defendants should be allowed to testify through an interpreter. You must not consider for any purpose the fact that the defendant used an interpreter when [he] [she] testified. Specifically, you must not consider defendant’s use of an interpreter and you should not be biased against [him] [her] because of [his] [her] inability to speak English.

[See Deering's California Evidence Code § 752 "Suggested Form.]

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VOLUME 3 - CHAPTER 17

    17.2.2.1    Instruction That Shackling Is Routine Practice Not Related To Defendant

RATIONALE: Any instruction cautioning the jury regarding security measures will be more effective if it convinces the jury that the security measure was imposed as a matter of normal procedure rather than because of this individual defendant.

POINTS AND AUTHORITIES: (See NCJIC 17.4.3 [If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary]; see also 20 California Attorneys For Criminal Justice FORUM No. 2 at p. 42, fn 16.)

CAVEAT: The decision whether to request a cautionary instruction requires careful evaluation. One view is that such an instruction will unduly emphasize the factor sought to be limited. (See NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].) On the other hand, the above referenced California Attorneys For Criminal Justice FORUM article suggests that such instructions should be requested. "Many colleagues believe that you should request an instruction on any unusual security to eliminate jury speculation and request it early in the proceedings. Especially is this true when you know the jury is aware of the security measures. In one case the court, over objection, gave the choice between having an extra bailiff in a two defendant case or having leg braces. Defendants and counsel choose leg braces. Counsel, believing the jurors would notice the braces, proposed that the court instruct the jury that whenever there are two defendants in a case, either there will be two bailiffs or the defendants can chose instead to wear leg braces. In that case, the defendants were allowed to show the jury the bottom of the brace to minimize the mystery of the device, the feeling being that the jurors might intentionally or unintentionally notice the brace, so why not diminish the curiosity and speculation factors." (20 California Attorneys For Criminal Justice FORUM # 2 at p. 42.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].

See Manual On Recurring Problems In Criminal Trials [14. Jurors Seeing Defendant In Handcuffs].

See also Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

    Ladies and gentlemen of the jury, as you can see [the defendant is shackled] [there are extra bailiffs] [__________]. This is a customary practice that has nothing to do with the defendant. Therefore, you can see that it would be very unfair for you to somehow hold the [shackling] [extra bailiffs] [__________] against the defendant, when it has nothing to do with [him] [her] at all. As a result, I instruct you that you may not consider the [shackling] [extra bailiffs] [__________] at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations.

[Source: Adapted from an example in a California Attorneys For Criminal Justice article by Howard W. Gillingham. (See 20 California Attorneys For Criminal Justice FORUM No. 2 at p. 42, fn 16.]

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RATIONALE: When a codefendant has been dismissed from the case the jury may assume that the codefendant pled guilty. This, in turn, may prompt the jury to draw an adverse inference against the defendant. Therefore, a cautionary/limiting instruction may be appropriate.

POINTS AND AUTHORITIES: "[A] defendant has ‘a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.’ [citation.]" (U.S. v. Thomas (3rd Cir. 1993) 998 F2d 1202, 1206.) Accordingly, the admission of a codefendant's guilty plea is reversible error. (Ibid.)

    When the case has been dismissed against one of the defendants during trial, there is a danger that the jury will speculate as to why this action has been taken. (See e.g., People v. Young (CA 1978) 85 CA3d 594, 602 [149 CR 524].) Specifically, the jury might speculate that the codefendant has pled guilty. If so, the potential for prejudice is overwhelming. (See e.g., U.S. v. Dworken (1st Cir. 1988) 855 F2d 12, 30-31; see also U.S. v. King (5th Cir. 1974) 505 F2d 602, 607; U.S. v. Hutchings (8th Cir.1984) 751 F2d 230, 237; Baker v. U.S. (9th Cir. 1968) 393 F2d 604, 614; U.S. v. De La Vega (11th Cir. 1990) 913 F2d 861, 866; Leavell v. State (IN 1983) 455 NE2d 1110, 1113; Jefferson v. State (IN 1980) 399 NE2d 816, 825; State v. Marcano (NH 1994) 645 A2d 661, 663; State v. Parente (RI 1983) 460 A2d 430, 434-35.)

    Accordingly, a cautionary instruction may be appropriate. (See e.g., U.S. v. Gibbons (2nd Cir. 1979) 602 F2d 1044, 1048; see also Young, 85 CA3d at 602; O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTION 11.14 [Dismissal Of Some Defendants] (West, 5th ed. 2000); see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Instruction 17 [Disposition Of Charges Against Codefendant: Jury Not To Consider Certain Evidence] p. 24 (1988).)

    See also NCJIC 26.2.3 [Witness Who Has Pled Guilty: Limited Purpose Instruction].

    See also NCJIC 19.4.2 [Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].

USE NOTE: Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial. See NCJIC 16.18.2 [Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial].

PRACTICE NOTE: When the charges against a codefendant are dismissed, the remaining defendant should first move for a mistrial on the ground that no curative instructions can correct the prejudice. Any curative instruction is for a situation where the mistrial motion is denied. (See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS [VIII (c)(4) Instructions On Multiple Counts And Multiple Defendants] (South Carolina CLE, 1994) p. 410.)

CAVEAT: As with most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See  NCJIC 17.2.2.1 [Instruction That Shackling Is Routine Practice Not Related To Defendant]; see also CAVEAT to NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].)

CAVEAT: Where the accomplice testified against the defendant in exchange for a favorable plea agreement, it will be necessary to assure that the jury considers the beneficial plea agreement in evaluating the credibility of the accomplice's testimony. (See NCJIC 25.7.1 [Witness Receiving Personal Inducements From Prosecution: Cautionary Instruction] and NCJIC 279.4 [Jury Not To Consider Penalty: Modification When Witness Testifies Pursuant To Bargain With Prosecution].)

See generally, NCJIC 305.13.12 [Multiple Defendants].

See 8th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 2.13.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 16.

    The case against the defendant _______ has been disposed of and is no longer before you. Do not guess or speculate as to the reason for the disposition. The disposition should not influence your verdict with reference to the remaining defendant[s], and you must base your verdict solely on the evidence against the remaining defendant[s].

[Source: 9th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.13 [Disposition Of Charge Against Codefendant] (2000).]

    At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the Government has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

    [The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you (describe stricken evidence).]

[Source: 8th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.12 [Disposition During Trial, Of All Charges Against One Or More Codefendant(s)] (2000); see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 4-1-9 [Disposition During Trial Of All Charges Against One Or More Codefendant] (State Bar of South Dakota, 2000).]

    The case has been disposed of as to the defendant[s] __________ [name defendants dismissed]. [He] [She] [They] [are] [is] no longer of concern to you, and you should not speculate as to the reason for this disposition. This disposition should not control or influence your verdict with reference to the remaining defendant[s] and you must base your verdict as to [him] [her] [them] solely on the evidence against [him] [her] [them].

[Source: NCJIC.]

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 VOLUME 3 - CHAPTER 19

RATIONALE: Jurors should not be allowed to infer that because a codefendant plead guilty the defendant is guilty as well.

POINTS AND AUTHORITIES: The guilty plea by one defendant is not evidence of guilt or criminality of the remaining defendant or defendants. (See e.g., Hines v. U.S. (10th Cir. 1942) 131 F2d 971, 974; Zarnick v. State (IN 1977) 361 NE2d 202, 206.) Therefore "[i]f the jury should become aware that a codefendant has pleaded guilty, it should be clearly instructed that it is not to consider or discuss the plea in deciding the case of the remaining defendant or defendants." (8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.12 [Disposition During Trial, Of All Charges Against One Or More Codefendant(s)] comment (2000); see also U.S. v. Phillips (7th Cir. 1981) 640 F2d 87, 91 fn 7; Wood v. U.S. (8th Cir. 1960) 279 F2d 359, 362-63.)

    See also NCJIC 19.4.1 [Cautionary Instructions Regarding Disposition Of Charges Against Codefendant].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.2; 7.3; 7.5].

USE NOTE: Any evidence that was admitted only as to the dismissed codefendant should be stricken. (See United States v. Schmaltz (8th Cir. 1977) 562 F2d 558; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 12.16 [Do Not Consider Dismissed Defendants] (West, 5th ed. 2000); see also NCJIC 19.4.3 [No Consideration Of Evidence As To Dismissed Codefendant].)

USE NOTE: If the jury does not know why the codefendant was dismissed no reference should be made to the guilty plea. (See  NCJIC 19.4.1 [Cautionary Instructions Regarding Disposition Of Charges Against Codefendant].)

CAVEAT: Where the accomplice testified against the defendant in exchange for a favorable plea agreement, it will be necessary to assure that the jury considers the beneficial plea agreement in evaluating the credibility of the accomplice's testimony.

See generally, NCJIC  305.13.12 [Multiple Defendants].

See 5th Circuit Pattern Jury Instructions - Criminal 1.15.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.08, Paragraph 3.

See also 8th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.12.

See also 11th Circuit Pattern Jury Instructions - Criminal 1.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24. 

    The fact that an accomplice has entered a plea of guilty cannot be considered by you as evidence of the guilt of any other person.

[Source: Given in People v. White, No. 117535, San Francisco Superior Court.]

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RATIONALE: Jurors may not understand that they are not to consider evidence that was admitted against a codefendant who has been dismissed.

POINTS AND AUTHORITIES: In cases where a codefendant has been removed from the case and evidence was admitted as to that codefendant only, it may be appropriate to instruct the jury that such evidence is no longer to be considered in the case. (See ALEXANDER, MAINE JURY INSTRUCTIONS MANUAL 4-10 comment [Instruction 7-Removal Of Co-defendant From Case] (Lexis, 1999).)

    See also  NCJIC 16.17 [Partial Dismissal Of Charges During Trial].

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

PRACTICE NOTE: It may be appropriate to advise the jury, to the extent practicable, specifically which evidence it should not consider. (Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 17 [Disposition Of Charges Against Codefendant: Jury Not To Consider Certain Evidence] (1988), and commentary; see also NCJIC 16.17.2 [Limiting Instruction As To Evidence Admitted Only As To Dismissed Charge Or Count] and  NCJIC 16.18.4 [No Consideration Of Evidence As To Dismissed Codefendant].)

CAVEAT: No reference should be made in this situation to a plea of guilty by the codefendant (if that is the basis for disposition of the charge, as opposed to a dismissal for lack of evidence). If the jury should become aware of the plea it may be appropriate to "strongly instruct" that it is not to consider or discuss the plea in deciding the case of the remaining defendant or defendants. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 17 [Disposition Of Charges Against Codefendant: Jury Not To Consider Certain Evidence] (1988), and commentary; see also  NCJIC 16.18.2 [Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial].)

See generally, NCJIC 305.13.12 [Multiple Defendants].

See 5th Circuit Pattern Jury Instructions - Criminal 1.15.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.08, Paragraph 3.

See also 8th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.12.

See also 11th Circuit Pattern Jury Instructions - Criminal 1.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 17.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24.

SAMPLE INSTRUCTION # 1:

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 VOLUME 4 - CHAPTER 25

RATIONALE: Without instruction the jury may place undue emphasis on pedagogical summaries such a charts, graphs, etc.

POINTS AND AUTHORITIES: Pedagogical summaries in the form of charts, graphs, schedules, etc. should only be introduced at trial if adequate protections are provided to minimize the prejudice which may flow from the jury's improper use of the summaries. (See U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1159, fn 10.) For example, the use of such charts is not uncommon in capital cases where the prosecution seeks to summarize the aggravating and mitigating factors. (See e.g, People v. Montiel (CA 1993) 5 C4th 877, 939, fn 36 [21 CR2d 705]; People v. Hamilton (CA 1989) 48 C3d 1142, 1185 [259 CR 701]; People v. Guzman (CA 1988) 45 C3d 915, 971 [248 CR 467].) Assuming the use of such charts is permissible, they "present a serious danger that the jurors will take into their deliberations a misleading impression ...." (People v. Ghent (CA 1987) 43 C3d 739, 782 [239 CR 82], concurring opinion.) It is proper for courts to admit in evidence illustrative charts and maps. (See People v. Watts (CA 1926) 198 C 776, 790 [247 P 884].) On the other hand, charts which are merely a summary of the testimony "merely make it more convenient for the trier of fact to understand [the evidence]" and, therefore, it normally should be of little consequence whether or not the chart is formally admitted into evidence. (See Estate of Busted (CA 1951) 105 CA2d 14, 21 [232 P2d 881]; see also U.S. v. Johnson, supra, at 1159.) Therefore, summary charts should be used and/or introduced into evidence "only if adequate protections are provided to minimize prejudice ...."  (U.S. v. Johnson, supra, at 1159, fn 10; see also [NF] United States v. Griffin (5th Cir. 3/10/2003, No. No. 01-20368) 324 F3d 330 [demonstrative aids such as charts are permissible to assist the jury in evaluating the evidence, provided the jury is forewarned that the charts are not independent evidence].)  Moreover, the instructions, when appropriate should also "clearly inform [] the jury that the chart represent[s] the [offering party's] analysis." (U.S. v. Johnson, 54 F3d at 1161.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7; 7.1].

See A Manual On Jury Trial Procedures [3.10A. Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B. Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

    Charts and other summary materials utilized by the attorneys for the purpose of summarizing the evidence are no better than the books or the testimony upon which they are based. They are an interpretation of the evidence by the party who submitted them. It is for you to decide whether the charts, schedules or summaries correctly present the data set forth in the testimony and exhibits upon which they are based.

[Source: Adapted from U.S. v. Goldberg (2nd Cir. 1968) 401 F2d 644, 647-48 and U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1160-61.]

    Certain charts [and] [or] summaries have been received into evidence to illustrate the testimony of some witnesses. Charts and summaries are an interpretation of the evidence by the party who submitted them and are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

[Source: Adapted from 9th CIRCUIT'S MODEL JURY INSTRUCTIONS - CRIMINAL 4.18 [Summaries Not Received In Evidence] (2000); see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.02 [Charts And Summaries - Not Admitted; Admitted] (West, 5th ed. 2000).]

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RATIONALE: Jurors may not be familiar with the psychological fact that it is more difficult for people of one race to identify people of a different race.

POINTS AND AUTHORITIES: Research has shown that a majority of people do not believe that it is more difficult for people of one race to identify people of a different race. (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 1-6, p. 7.) However, scientific data is to the contrary: "It is well established that there exists a comparative difficulty in recognizing individual members of a race different than one’s own." (Id. at § 4-9, p. 86; see also State v. Cromedy (NJ 1999) 727 A2d 457, 467-68; People v. Palmer (CA 1984) 154 CA3d 79, 85-89 [203 CR 474]; People v. West (CA 1983) 139 CA3d 606 [189 CR 36, 37-38]; State v. Long (UT 1986) 721 P2d 483, 495.)

    Hence, a cautionary instruction regarding cross-racial identification should be given when appropriate.  For example, a New Jersey five-year study of the need for a cross-racial jury instruction was conducted by a group comprised of an appellate judge, trial judges, prosecutors and defense lawyers, social scientists and ordinary citizens. The task force considered professional literature in the area of cross-racial identification and came to the almost unanimous conclusion (the sole dissenter was a county prosecutor) that "a problem exists respecting cross-racial identifications and that ... corrective action [should be taken]."   (See e.g., New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992); see also State v. Cromedy (NJ 1999) 727 A2d 457, 465; CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.92, [Factors To Consider In Proving Identity By Eyewitness Testimony] first ¶ and cross-racial factor. (West, 6th Ed. 1996).)

    But see NCJIC 31.4.7 [Cross-Ethnic Identification]. 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.6].

ARTICLE AVAILABLE:  To read the relevant portion of the New Jersey Supreme Court Task Force on Minority Concerns Final Report, click here. [Article Bank # A-87.]

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, NCJIC 305.9.1 [Identification].

See generally, NCJIC 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

    You know that the identifying witness is of a different race than the defendant. When a witness, who is a member of one race, identifies a defendant who is a member of another race, we say that there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness' original perception and/or the accuracy of the subsequent identification[s].

[Source: State v. Cromedy (NJ 1999) 727 A2d 457, 466.]

    In evaluating the reliability of the identification choice, consider whether the defendant is a different race [of a different ethnic origin] than the witness.

[Source: NCJIC.]

    In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than members of one’s own. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness’s testimony, but you must also consider whether there are other factors present in this case that overcome any such difficulty of identification.

[Source: Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L.Rev. 934, 976, fn18 (June 1984).]

CAVEAT: An instruction such as the above, may be viewed as a radical step in many jurisdictions. (See, e.g., Johnson, Cross-Racial Identification Errors in Criminal Cases, supra, p. 976, fn. 9.) Hence, such an instruction should normally be submitted as a supplement to expert testimony rather than a substitute for it. (See Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-8(a), p. 341.) On the other hand, there are an increasing number of jurisdictions which recognize the important role of such an instruction. (See e.g., New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992).)

ARTICLE AVAILABLE:  To read the New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992) click here.  [Article Bank # A-87.]

    See also NCJIC 31.4.1 [The Misconception That Witness Confidence Increases Reliability].

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RATIONALE: An inference of consciousness of guilt is dependent on the foundational facts upon which the inference is based. Hence, instruction on such foundational facts may be appropriate.

POINTS AND AUTHORITIES: "[E]ach link in the chain of inferences leading to [the inference of consciousness of guilt must be] sturdily supported." (U.S. v. Beahm (4th Cir. 1981) 664 F2d 414, 420; see also Commonwealth v. Robles (MA 1996) 666 NE2d 497, 504 ["the charge properly instructed the jury that...they must find beyond a reasonable doubt that the defendant lied to the police before considering his statements as consciousness of guilt..."]; State v. Mann (NJ 1993) 625 A2d 1102, 1107 [regarding the requirement to first find the fact upon which the inference is to be based, before drawing the inference]; People v. Abdul-Malik (NY 1978) 403 NYS2d 253, 255[false statement may not be considered unless the jury first concludes that it was untrue].)

    See also NCJIC 34.3.7 [Flight: Required Preliminary Facts].

    See also NCJIC 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    Before considering the evidence of flight you must determine that the following preliminary facts have been proven:

    1.  A person fled from the scene of the crime;

    2.  The person who fled was the defendant;

    3.  The defendant fled with the intent to avoid observation or arrest.

    You must disregard the evidence of flight unless you find that all of the above preliminary facts have been proven.

[Source: NCJIC.]

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RATIONALE: The essence of consciousness of guilt evidence is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, does not have any logical relevance as to the nature of the crime the defendant committed.

POINTS AND AUTHORITIES: Fear of apprehension may be relevant on the question of whether a criminal homicide was committed but it does not establish that the homicide was committed with malice aforethought or premeditation and deliberation. (People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]); see also Solomon v. Commissioner (E.D.N.Y. 1992) 786 FSupp 218, 225 [acts subsequent to victim's death cannot show killing was committed with "depraved indifference"]; People v. Baca (CO 1992) 852 P2d 1302, 1309 [court twice instructed the jury that evidence of defendant's actions between the time of the crime and his arrest could be used only for the purpose of showing consciousness of guilt and not as evidence of any culpable mental state at the time of the crime]; Commonwealth v. Anderson (MA 1985) 486 NE2d 19, 23, fn 12.)

    "Consciousness of guilt ... does not constitute affirmative proof as to how the crime was committed, or defendants' participation therein. [Citation.]." (State v. Voit (OR 1973) 506 P2d 734, 739; see also People v. Berthiaume (MI 1975) 229 NW2d 497, 502 ["We have no quarrel with the proposition that flight from the scene of a homicide proves only consciousness of guilt and a jury should not be instruction that such evidence, in and of itself, is proof of premeditation and deliberation. [Citations.]"].)  For example, concealment of the body, standing alone, is not sufficient to establish premeditation. "We believe the proper rule to be that this goes to the matter of guilt as opposed to the degree of the crime, or phrasing it another way, an inference of guilt may be drawn from concealment or destruction of the body. [Citations.] ... [T]he concealment of the body is a circumstance to be considered on premeditation." (State v. LaChance (TN 1975) 524 SW2d 933, 938.)

    As to flight, it has been recognized that such evidence, standing alone, does not have "any bearing upon the question of premeditation." (State v. LaChance (TN 1975) 524 SW2d 933, 938; see also State v. Myers (NC 1983) 305 SE2d 506, 512 ["...evidence of flight may not be considered as tending to show premeditation or deliberation [Citations.]"].)

    In other words, while consciousness of guilt evidence is "highly probative of whether defendant committed the crime, ... it does not bear upon the state of the defendant's mind at the time of the commission of the crime." (People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; but see, People v. Anderson (CA 1985) 38 C3d 58, 62 [210 CR 777] [dicta that post-offense conduct "may be relevant" to state of mind before crime but not considering whether such evidence can show more than simply a criminal versus a noncriminal state of mind].)

    In sum, the above authority suggests that an instruction may be requested limiting the jury's consideration to whether the defendant committed a crime and not the degree or nature thereof.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    The prosecution contends (and the defendant denies) that the defendant _____________ [insert conduct e.g., fled, made false statements, etc.].  You may consider evidence of _______________ (insert conduct), together with all other facts and circumstances in this case, in deciding whether the combined circumstances show a consciousness of guilt. However, proof of this circumstance is not sufficient, by itself, to establish the defendant's guilt. Further, this circumstance has no bearing on the question of whether defendant acted with premeditation and deliberation. Therefore, you must not  consider this circumstance as evidence of premeditation or deliberation.

[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]

    This circumstance ____________ (insert conduct e.g., flight, false statement, etc.) has no bearing on the question of whether defendant acted with ___________________ (insert applicable mental state e.g., premeditation and deliberation). Therefore, you must not consider it as evidence of _________________ (mental state).

[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] sent. 4-5 (TRCC, 1999).]

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    35.1    Instruction On Consciousness Of Innocence; Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.

RATIONALE: When appropriate, the trial court should be permitted to exercise its discretion to allow a defense theory instruction on consciousness of innocence.

POINTS AND AUTHORITIES:

    A.  Instruction In Discretion Of Trial Judge. It must be emphasized that "consciousness of innocence" is relevant evidence which the jury may consider. There might be reasons other than belief in innocence why a defendant failed to flee, voluntarily surrendered to the police, consented to a search, etc. However, it is perfectly logical and proper for the jury to rely on such evidence in concluding that the prosecution failed to prove guilt beyond a reasonable doubt. (See Standen v. Whitley (9th Cir. 1993) 994 F2d 1417, 1425-26 [court relied, in part, upon the defendant's failure to flee or otherwise demonstrate a consciousness of guilt as evidence that the defendant was not guilty]; see also State v. Huff (CT 1987) 523 A2d 906, 912 [failure to flee is a factual argument that may be made to a jury in summation of the evidence]; State v. Jennings (CT 1989) 562 A2d 545, 549 [decisions from other jurisdictions "appear unanimous that a defendant may properly argue his absence of flight to the jury..."]; Commonwealth v. Toney (MA 1982) 433 NE2d 425, 431-32; Wooten-Bey v. State (MD 1988) 547 A2d 1086, 1096 [defendant permitted to may rebut evidence of flight with evidence of voluntary surrender].)

    Hence, in jurisdictions which allow instruction on specific evidence such as consciousness of guilt or various permissive presumptions, it should be within the trial court's discretion to instruct on consciousness of innocence. For example, in California it has been recognized that the trial court may in its discretion give "an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case." (People v. Williams (CA 1997) 55 CA4th 648, 652 [64 CR2d 203]; see also People v. Sears (CA 1970) 2 C3d 180, 189 [84 CR 711] [jury should be instructed on request that, inter alia, lack of furtiveness may be considered in determining the issue of premeditation/deliberation]; State v. Pettway (CT 1995) 664 A2d 1125, 1134 [trial court gave consciousness of innocence instruction even though not obligated to do so].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

    B.  Instruction To Remove Unfair Imbalance Between Prosecution And Defense. Moreover, failure to give a consciousness of innocence instructions may unfairly favor the prosecution. In Wardius v. Oregon (1973) 412 US 470, 475 fn 6 [93 SCt 2208; 37 LEd2d 82], the U.S. Supreme Court warned that, "state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial" violate the defendant's due process rights under the 14th Amendment. (See also Washington v. Texas (1967) 388 US 14, 22 [87 SCt 1920; 18 LEd2d 1019]; Gideon v. Wainwright (1963) 372 US 335, 344 [83 SCt 792; 9 LEd2d 799]; Izazaga v. Superior Court (CA 1991) 54 C3d 356, 372-77 [285 CR 231]; cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause "does speak to the balance of forces between the accused and his accuser," Wardius held that "in the absence of a strong showing of state interests to the contrary" there "must be a two-way street" as between the prosecution and the defense. (Wardius, 412 US at 474.)

    The need for such evidentiary fairness was also summarized in the following commentary in Wigmore: "Let the accused's whole conduct come in; and whether it tells for consciousness of guilt or consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations." (2 Wigmore on Evidence, § 293, pg. 232 (J. Chadborn, rev. ed., 1979.) 

    Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485] ["There should be absolute impartiality as between the People and the defendant in the matter of instructions"]; accord, Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].)  Therefore, instructions which give an unfair advantage to the prosecution violate the "balance" required by Wardius and implicate the due process clause of the 14th Amendment. (But see People v. Williams (CA 1997) 55 CA4th 648, 652-53 [64 CR2d 203] [rejecting Wardius argument because flight and absence of flight "are not on similar logical or legal footings" and therefore instruction is not required sua sponte but may be given in trial court's discretion].)

    In the case of flight, a clear imbalance is created by allowing the prosecution to obtain a flight instruction and not allowing the defense to obtain a lack of flight instruction. (See People v. Green (CA 1980) 27 C3d 1 [164 CR 1].) The Green court holding was based upon the court's conclusion that there are reasons why a guilty person may not flee. (Green, 27 C3d at 37; see also Commonwealth v. Martin (MA 1984) 472 NE2d 276, 279-80.)  However, the courts have long recognized that there are also reasons why an innocent person will flee and this has not prevented jury instruction on consciousness of guilt:

    "... [I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as bold as a lion.' Innocent men sometimes hesitate to confront a jury -- not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves ...." (Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051]; see also Hickory v. U.S. (1896) 160 408, 416-17 [16 SCt 327; 40 LEd 474] [innocent people "may resort to deception"]; Austin v. U.S. (DC Cir. 1969) 414 F2d 1155, 1157 and cases cited therein; People v. Jenkins (CA 1979) 91 CA3d 579, 586 [154 CR 309].)

    Hence, just as the jury may consider evidence of flight, notwithstanding the fact that innocent people may flee, so too should the jury consider evidence of lack of flight, notwithstanding the fact that guilty people may not flee. The logic of this analysis is illustrated by the Ninth Circuit's decision in Standen v. Whitley (9th Cir. 1993) 994 F2d 1417, 1425-26, where the court relied, in part, upon the defendant's failure to flee or otherwise demonstrate a consciousness of guilt as evidence that the defendant was not guilty.  (See also Wooten-Bey v. State (MD 1988) 547 A2d 1086, 1096 [defendant permitted to rebut evidence of flight with evidence of voluntary surrender].)

    Similarly, U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 690 recognized the importance of consciousness of innocence evidence. "When a defendant rejects an offer of immunity on the ground that he is unaware of any wrong doing about which he could testify, his action is probative of a state of mind devoid of guilty knowledge." (Id. at 690.) Accordingly, such evidence is relevant to show a "consciousness of innocence" and its exclusion would be especially unfair when the prosecution is allowed to present evidence of consciousness of guilt. (Id. at 692.)

    In sum, there is no rational basis upon which to justify an imbalance in the consciousness of guilt instructions which decidedly favors the prosecution. The federal constitutional principles discussed above require that if the jury is instructed upon factors which suggest a consciousness of guilt, it must also be instructed upon factors which suggest a consciousness of innocence.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.5].

    C.  Instruction As Defense Theory.  Even in jurisdictions where instructions on specific evidence is generally prohibited, instruction on consciousness of innocence may still be appropriate as a theory of the defense. (See generally NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

    The [absence of flight of a person] [failure of a person to attempt to evade the police] immediately after the commission of a crime, or after [he] [she] is accused of a crime, although the person had the opportunity to flee, is a matter to consider in light of all the circumstances, in deciding whether or not the defendant's guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is a matter for the jury to determine.

[Source: NCJIC.]

    You may consider whether or not a person fled immediately after the commission of a crime, or after [he] [she] was accused of a crime as a circumstance in this case. The presence of flight may tend to establish a consciousness of guilt but this is not sufficient in itself to establish guilt. On the other hand, the absence of flight may tend to show that the defendant did not have a consciousness of guilt and this fact alone may be sufficient to create a reasonable doubt as to the defendant's guilt. The weight and significance of these circumstances, if any, are matters for your determination.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 3:

    Evidence has been introduced on the question of whether the defendant displayed "consciousness of innocence." The credibility and weight to be given such evidence is up to you. You may decide whether the defendant’s conduct of ___________________ (insert conduct, e.g., voluntarily surrendering to the police) was indicative of innocence or at least consistent with innocence of the offenses for which he or she is now being tried. In evaluating the evidence, consider whether the defendant’s conduct was indicative of innocence, consistent with innocence or otherwise demonstrated a consciousness of innocence.

    Remember, however, that the defendant need not prove [his] [her] innocence.  If after considering all the evidence, including any evidence of "consciousness of innocence," you have a reasonable doubt that the defendant is guilty you must return a verdict of not guilty.

[See Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(b)(1) Inst. No. 13.]

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    See NCJIC 35.1 [Instruction On Consciousness Of Innocence; Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.]

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    See NCJIC Chapter 250 [Defenses And Defense Theories: General Issues].

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    35.4    Consciousness Of Innocence Based On Rejection Of Immunity Offer

RATIONALE: The fact that a defendant rejected an offer of immunity from the prosecution is a circumstance which raises a consciousness of innocence which the jury should consider. Hence, just as the jury is directed to consider evidence which raises inferences in favor or the prosecution, so too should it be instructed to consider the defendant's rejection of an immunity agreement.

POINTS AND AUTHORITIES: "When a defendant rejects an offer of immunity on the ground that he is unaware of any wrong-doing about which he could testify, his action is probative of a state of mind devoid of guilty knowledge." (U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 690.) Accordingly, such evidence is relevant to show a "consciousness of innocence" and its exclusion would be especially unfair when the prosecution is allowed to present evidence of consciousness of guilt. (Id. at 692.) The need for such evidentiary fairness was summarized in the following commentary in Wigmore: "Let the accused's whole conduct come in; and whether it tells for consciousness of guilt or consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations." (2 Wigmore on Evidence, § 2, pg. 232 (J. Chadborn, rev. ed., 1979); see also U.S. v. Scheffer (1998) 523 US 303, 336 [118 SCt 1261; 140 LEd2d 413] dissenting opinion; U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 692; People v. Williams (CA 1997) 55 CA4th 648, 652 [64 CR2d 203] [rejecting due process right to instruction on absence of flight but recognizing trial court's discretion to give such an instruction under appropriate circumstances]; see also Commonwealth v. Martin (MA 1984) 472 NE2d 276, 279-80.)

    The Supreme Court has also recognized the need for fairness between the defense and the prosecution. In Wardius v. Oregon (1973) 412 US 470, 475, fn 6 [93 SCt 2208; 37 LEd2d 82], the U.S. Supreme Court warned that, "state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial" violate the defendant's due process rights under the 14th Amendment. (See also Washington v. Texas (1967) 388 US 14, 22 [87 SCt 1920; 18 LEd2d 1019]; Gideon v. Wainwright (1963) 372 US 335, 344 [83 SCt 792; 9 LEd2d 799]; Izazaga v. Superior Court (CA 1991) 54 C3d 356, 372-77 [285 CR 231]; cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause "does speak to the balance of forces between the accused and his accuser," Wardius held that "in the absence of a strong showing of state interests to the contrary" there "must be a two-way street" as between the prosecution and the defense. (Wardius, 412 US at 475.)

    Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485] ["There should be absolute impartiality as between the People and the defendant in the matter of instructions"]; accord, Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the 'balance' required by Wardius and implicate the due process clause of the 14th Amendment. (But see People v. Williams (CA 1997) 55 CA4th 648, 652-53 [64 CR2d 203] [rejecting Wardius argument because flight and absence of flight "are not on similar logical or legal footings" and therefore absence of flight instruction is not required sua sponte but may be given in trial court's discretion].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 5.6].

NOTES: The application of the above rationale to the defendant's rejection of a plea bargain has been rejected. (See U.S. v. Greene (8th Cir. 1993) 995 F2d 793, 798-99.)

RESEARCH NOTES:

See Benchbook For U.S. District Court Judges [5.02.1 Grants Of Immunity: Procedures].

See also Benchbook For U.S. District Court Judges [5.03 Invoking The 5th Amendment].

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 VOLUME 4 - CHAPTER 35

RATIONALE: When appropriate, the trial court should be permitted to exercise its discretion to allow a defense theory instruction on consciousness of innocence.

POINTS AND AUTHORITIES: See NCJIC 35.1 [Instruction On Consciousness Of Innocence; Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.]; see also Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(b)(1) Inst. No. 13.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 5.6].

    The defendant's voluntary surrender to police immediately after the commission of a crime, or after [he] [she] is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you in light of all other proven facts, in deciding whether or not the defendant's guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is entitled is a matter for the jury to determine.

[Source: NCJIC.]

    You may consider whether or not a person voluntarily surrendered to police after the commission of a crime, or after [he] [she] was accused of a crime as a circumstance in this case. The presence of flight may tend to establish a consciousness of guilt but this is not sufficient in itself to establish guilt. However, on the other hand, voluntarily surrendering to the police may tend to show that the defendant did not have a consciousness of guilt and this fact alone may be sufficient to create a reasonable doubt as to the defendant's guilt. The weight and significance of these circumstances, if any, are matters for your determination.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 3:

    Evidence has been introduced on the question of whether the defendant displayed "consciousness of innocence." The credibility and weight to be given such evidence is up to you. You may decide whether the defendant’s conduct of ___________________ (insert conduct, e.g., voluntarily surrendering to the police) was indicative of innocence or at least consistent with innocence of the offenses for which he or she is now being tried. In evaluating the evidence, consider whether the defendant’s conduct was indicative of innocence, consistent with innocence or otherwise demonstrated a consciousness of innocence.

    Remember, however, that the defendant need not prove [his] [her] innocence.  If after considering all the evidence, including any evidence of "consciousness of innocence," you have a reasonable doubt that the defendant is guilty you must return a verdict of not guilty.

[See Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(b)(1) Inst. No. 13.]

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 VOLUME 4 - CHAPTER 35

RATIONALE: When appropriate, the trial court should be permitted to exercise its discretion to allow a defense theory instruction on consciousness of innocence.

POINTS AND AUTHORITIES: See NCJIC 35.1 [Instruction On Consciousness Of Innocence; Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.]; see also Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(b)(1) Inst. No. 13.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 5.6].

    The defendant voluntarily consented to [be searched] [a search of [his] [her] residence] immediately after the commission of a crime, or after [he] [she] is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you in light of all other proven facts, in deciding whether or not the defendant's guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is entitled is a matter for the jury to determine.

[Source: NCJIC.]

    You may consider whether or not a person voluntarily consented to [be searched] [a search of [his] [her] residence] after the commission of a crime, or after [he] [she] was accused of a crime as a circumstance in this case. The presence of flight may tend to establish a consciousness of guilt but this is not sufficient in itself to establish guilt. However, on the other hand, voluntarily consenting to the search may tend to show that the defendant did not have a consciousness of guilt and this fact alone may be sufficient to create a reasonable doubt as to the defendant's guilt. The weight and significance of these circumstances, if any, are matters for your determination.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 3:

    Evidence has been introduced on the question of whether the defendant displayed "consciousness of innocence." The credibility and weight to be given such evidence is up to you. You may decide whether the defendant’s conduct of ___________________ (insert conduct, e.g., voluntarily consenting to a search) was indicative of innocence or at least consistent with innocence of the offenses for which he or she is now being tried. In evaluating the evidence, consider whether the defendant’s conduct was indicative of innocence, consistent with innocence or otherwise demonstrated a consciousness of innocence.

    Remember, however, that the defendant need not prove [his] [her] innocence.  If after considering all the evidence, including any evidence of "consciousness of innocence," you have a reasonable doubt that the defendant is guilty you must return a verdict of not guilty.

[See Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(b)(1) Inst. No. 13.]

    In cases where a suspect has fled from the scene of a crime, such flight may be considered as evidence of a consciousness of guilt in the mind of the suspect. In this case there has been evidence presented that the defendant voluntarily consented to [be searched] [a search of [his] [her] residence]. You may consider this as evidence which is consistent with [the defendant's] consciousness of innocence.

[Source: Adapted from State v. Pettway (CT 1995) 664 A2d 1125, 1134, fn.7; but see State v. Jennings (CT 1989) 562 A2d 545, 549.]

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 VOLUME 4 - CHAPTER 36

    36.2.1.1    Missing Witness: Sample Instructions

RATIONALE: Where evidence is within the control of the party in whose interest it would naturally be to produce it and, without satisfactory explanation the party fails to do so, the jury may draw an inference that it would be unfavorable to the party.

POINTS AND AUTHORITIES: The failure to call a witness who could testify to material facts may give rise to an inference that the testimony of such person would be unfavorable to the party who has not called the witness, if the witness is available to that party, but is not available to the adverse party. (Wharton’s Criminal Evidence (West, 15th, Ed. 1997) (West) § 3:21, pp. 232-41, at p. 232.)

    "A fairly typical example of the factual predicate required for an instruction that the jury may infer that the testimony of a witness peculiarly within the power of one party to produce would be unfavorable to that party is that of the District of Columbia. It consists of two parts: 1) the evidence or witness must be such that it would have elucidated a matter in issue in the case; 2) the missing evidence or witness must have been peculiarly available to the party who failed to produce the evidence or witness, and availability has been equated to power to produce. [Citations.]" (BNA Criminal Practice Manual (Pike and Fisher Inc. 1999) § 131.101[5][c]; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.24 [Missing Witness] comment (1999).)

   Whether to instruct on the "missing witness" inference is largely within the sound discretion of the trial court. (U.S. v. Williams (8th Cir. 1979) 604 F2d 1102, 1120; U.S. v. Johnson (8th Cir. 1977) 562 F2d 515, 517.) Defendant requests for instruction on the missing witness inference have been denied where the witness's testimony would not have been favorable to the defendant (U.S. v. Long (9th Cir. 1976) 533 F2d 505, 508), where it would have been cumulative or unnecessary (U.S. v. Mahone (7th Cir. 1976) 537 F2d 922, 927), and where it was found that the party was not in full control of the witness (U.S. v. Williams, 604 F2d at 1119-20; U.S. v. Johnson, 562 F2d at 517; U.S. v. Wilson (DC Cir. 1976) 534 F2d 375, 377; see also 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.12 [Missing Witness] (2002) [detailed comment on missing witness issues].)

    The weaker or less satisfactory evidence instruction (see NCJIC 36.2.2.10 [Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence]) is another form of the missing witness/missing evidence instruction.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 4.1; 11.1].

USE NOTE: The inference [from failure to call a material witness] does not arise and this instruction should not be given if the witness is equally available to both sides, if his or her testimony would be inadmissible as evidence, if the absent witness is truly unavailable, if his or her testimony would be immaterial, if the witness is as likely to be favorable to one party as another, or if the witness would be prejudiced against or hostile to the party who has not called him or her. (See TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.16(a) and (b), comment [Alternative Instruction: Absent Material Witness] (West, 5th ed. 2000); see also State v. Francis (TE 1994) 669 SW2d 85, 88.)

CAVEAT: Use of missing witness instructions or argument against the defendant may implicate the federal constitution. (See NCJIC 36.2.3.4 [Missing Witness Instruction Should Not Be Used Against Defendant].)

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

See also 7th Circuit Federal Jury Instructions - Criminal 3.24.

See also 8th Circuit Model Jury Instructions - Criminal 4.16.

See also 9th Circuit Model Jury Instructions - Criminal 4.16.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 39.

    You will remember that _______ said that [name of missing witness] was [e.g.: present when the crime is supposed to have been committed]. [Name of missing witness] was also described as being [e.g.: well known to] the government (defendant). This may have caused you to wonder why was not called as a witness to answer questions in this trial. If you believe that the testimony of ________ would have been important, and if you also believe that the government (defendant) could have brought him to court to testify in this trial, then you may consider its (his) failure to do so when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime. In other words, you may conclude that the government (defense) did not call ________ as a witness because his testimony would have hurt the government (defense) case.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 39 [Inference From Fact That Witness Not Called] (1988).]

    It was particularly within the power of the (government) (defense) to produce _____, who could have given material testimony on an issue in the case. The (government's) (defense's) failure to call ______ may give rise to an inference that his testimony would be unfavorable to it.

    You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

[Source: United States v. Mahone (7th Cir. 1976) 537 F2d 922.]

    If the prosecution has it peculiarly within its power to produce a witness whose testimony would be material on any matter in issue, the fact that the witness is not called to testify creates the presumption that the testimony, if produced, would be unfavorable to the prosecution.

[See "Suggested Form," Deering's California Evidence Code § 412.]