NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions

VOLUME 4: EVIDENCE--ISSUES AND INSTRUCTIONS (Chapters 24-42)

TABLE OF CONTENTS

Chapter 24: What Is And What Isn’t Evidence

24.1 Defining What Is And What Isn't Evidence
    24.1.1 Sample Composite Instruction Defining Evidence
    24.1.2 Defining What Is And What Isn't Evidence: Federal Circuit Model Instructions And Notes

24.2 What Is Evidence    
            24.2.1.1 What Is Evidence: Testimony And Exhibits -- General Instructions
            24.2.1.2 Evidence Includes Testimony And Exhibits Regardless Of Which Party Presented It
            24.2.1.3 Evidence Includes Both Direct Testimony And Cross-Examination

        24.2.2 What Is Evidence: Witness Demeanor
            24.2.2.1 Jury Should Consider Demeanor Of Witness While Testifying
            24.2.2.2 Jury Must Not Consider Demeanor Of Witness While Not Testifying
            24.2.2.3 Jury Should Not Consider Demeanor Of Person Reading Prior Testimony Into The Record

        24.2.3 What Is Evidence: Stipulations
            24.2.3.1 Stipulations: Instruction Regarding Stipulation
            24.2.3.2 Stipulations As To Testimony: Better Practice Is To Submit In Writing
            24.2.3.3 Stipulations: Instruction As To Remaining Disputed Issues Or Elements Where Stipulation Is Not To All Issues
            24.2.3.4 Stipulation Of Fact: Requirement Of Waiver Where Fact Goes To Essential Element Of Charge
            24.2.3.5 Stipulation As Strategy For Removing Issue From Jury
            24.2.3.6 Stipulations: Federal Circuit Model Instructions And Notes
            24.2.3.7 Stipulations That Are Legal As Well As Factual: Inclusion In Jury Instructions

        24.2.4 What Is Evidence: Judicial Notice
            24.2.4.1 Judicial Notice: Explanatory Instruction
            24.2.4.2 Judicial Notice Regarding Principles Of Psychology
            24.2.4.3 Judicial Notice: Federal Circuit Model Instructions And Notes
            24.2.4.4 Judicial Notice Of Federal Rules And Regulations: Violation Of The Rule Not Sufficient To Convict

        24.2.5 What Is Evidence: In-Court Demonstrations
            24.2.5.1 In-Court Demonstrations: Explanatory Instructions
            24.2.5.2 Video Taped Demonstrations: Cautionary Instruction

        24.2.6 Jury View As Evidence
            24.2.6.1 Necessity Of Instruction On Whether Or Not Jury View Is Evidence
            24.2.6.2 Jury View Is Evidence: Sample Instructions
            24.2.6.3 In-Court Demonstrations: Federal Circuit Model Instructions And Notes

        24.2.7 Transcripts As Evidence
            24.2.7.1 Transcript Testimony From Previous Trial, Preliminary Hearing, Deposition, Etc.
            24.2.7.2 Transcript Of Electronic Recording: Where Transcript Is Admitted
            24.2.7.3 Transcript Of Foreign Language Recording

24.3 What Is Not Evidence
        24.3.1 What Is Not Evidence: Miscellaneous Matters
            24.3.1.1 Charges Are Not Evidence
            24.3.1.2 Matters Heard Outside The Courtroom Are Not Evidence
            24.3.1.3 Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered
            24.3.1.4 Jury Must Not Consider Counsel’s Arguments On The Admissibility Of Evidence
            24.3.1.5 Arguments Of Counsel Are Not Evidence
            24.3.1.6 Transcript Of Disputed Electronic Recording Is Not Evidence
            24.3.1.7 Whether Jury View Is Evidence
            24.3.1.8 Instructions Are Not Evidence
            24.3.1.9 Questions To Witnesses Are Not Evidence

        24.3.2 What Is Not Evidence: Arguments Of Counsel
            24.3.2.1 Jury Must Not Consider Counsel’s Arguments On The Admissibility Of Evidence
            24.3.2.2 Arguments Are Not Evidence But Should Be Considered
            24.3.2.3 Jury Not To Consider Any Portion Of Counsel's Opening Statement Or Closing Argument Which Was Stricken

        24.3.3 What Is Not Evidence: Excluded, Stricken Or Withdrawn Matters
            24.3.3.1 Evidence Admitted But Later Withdrawn Must Not Be Considered
            24.3.3.2 Testimony In Response To Question To Which Objection Was Sustained Is Not Evidence
            24.3.3.3 Excluded Or Stricken Matters Are Not Evidence

Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence

25.1 Duty Of Jury Regarding The Evidence
    25.1.1 Jury Must Consider All The Evidence

25.2 Exhibits
    25.2.1 Cautionary Instruction: Exhibits
    25.2.2 Cautionary Procedures and Instructions Regarding Exhibits Marked But Not Admitted Into Evidence
    25.2.3 Jury Not to Discuss Exhibits Prior to Deliberation
    25.2.4 Jury Should Not Give Undue Weight To Reproduced Exhibits, Written Statements Or Transcripts Admitted As Exhibits
    25.2.5 Potential Prejudice When Written Statement Offered As Exhibit Favors One Side
    25.2.6 Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized
    25.2.7 Jury Not To Speculate About "Masked-Off" Portions Of Photos
    25.2.8 Availability Of Exhibits During Deliberations
    25.2.9 Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them
    25.2.10 Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury
    25.2.11 Jury Request For Evidence Not Admitted At Trial
    25.2.12 Jurors Request For Exhibits Which, For Practical Reasons, Cannot Be Sent Into The Juryroom
    25.2.13 Submission To Jury Of Exhibits Not Admitted As Reversible Error
    25.2.14 Prosecution Misconduct: Premature Display Of Physical Evidence

25.3 Charts, Summaries, Etc.
    25.3.1 Miscellaneous Issues Regarding Pedagological Evidence
    25.3.2 Jury Consideration Of Charts, Summaries, Etc. Which Were Not Admitted Into Evidence
    25.3.3 Propriety Of Instruction Regarding Pedagological Charts, Graphs, Evidence Summaries, Etc.
    25.3.4 When Should Cautionary Instruction Regarding Pedagogical Evidence Be Given?
    25.3.5 Charts, Summaries, Etc. Not Admitted Into Evidence Must Not Go Into The Juryroom
    25.3.6 Permissibility Of Summary Witnesses
    25.3.7 Permissibility Of Overview Witnesses: Improper Before Evidence Is Admitted
    25.3.8 Improper To Allow Summary Overview Of Evidence Not Yet Admitted Into Evidence

25.4 Jury View Of The Scene
    25.4.1 Checklist Of Procedures Relating To Jury View
    25.4.2 Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence
    25.4.3 Jury View: Unavoidable View Of Scene
    25.4.4 Factors In Determining Whether To Allow Jury View
    25.4.5 Jury View: Cautionary Instruction Regarding Changed Conditions
    25.4.6 Jury Should Be Admonished Against Talking During Jury View
    25.4.7 Jury To Remain Together And With The Judge Or Court Officer During Jury View
    25.4.8 Timing Of Jury View
    25.4.9 Transportation For Jury View
    25.4.10 Presence Of Judge At Jury View
    25.4.11 Presence Of Accused At Jury View
    25.4.12 Presence of Counsel At Jury View
    25.4.13 Comments By Counsel During Jury View
    25.4.14 Presence Of Press And Public At Jury View
    25.4.15 Importance Of Jury View In Identification Case
    25.4.16 Jury View: Record Of Proceedings

25.5 Witness Immunity
    25.5.1 Immunized Witness To Be Viewed With Greater Caution Or Distrust: Exposure To Perjury From Immunity Agreement
    25.5.2 Testimony Under Grant Of Immunity: Greater Caution Than Ordinary Witness
    25.5.3 Witness Immunity: FBI Agents Have No Authority To Confer Use Immunity
    25.5.4 Denial Of Immunity By Prosecution: Explanatory Instruction
    25.5.5 Immunity Agreement: Jurors May Not Consider Prosecutor’s Belief As To Truthfulness Of Witness

25.6 Accomplices: Cautionary Instructions
    25.6.1 Accomplice Testimony: Cautionary Instruction
    25.6.2 Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution
    25.6.3 Accomplice: Cautionary Instruction -- Applies To Incriminating Evidence Only
    25.6.4 Accomplice Instruction: Improper When Accomplice Is Codefendant
    25.6.5 Accomplice Testimony Cautionary Instruction Should Not Be Limited To Testimony
    25.6.6 No Reference To The Term "Accomplice"
    25.6.7 Informing Jurors As To Why Accomplice Testimony Should Be Viewed With Caution
    25.6.8 Combining Reasons For Questioning Credibility Of Informers And Accomplices In A Single Instruction
    25.6.9 Accomplice Liability/Perpetrator Unanimity: At Least One Person Must Have Committed All Elements Of The Charge
    25.6.10 Accomplice Testimony: Federal Circuit Model Instructions And Notes

25.7 Witness Or Informant Receiving Benefit From Prosecution
    25.7.1 Witness Receiving Personal Inducements From Prosecution: Cautionary Instruction
    25.7.2 Cautionary Instruction: Addict-Informer
    25.7.3 Informant Testimony Requires Greater Care And Caution Than Ordinary Witness
    25.7.4 Inquiry Into Nature Of Informant's Sentence
    25.7.5 Interest Of Witness In Outcome/Result Of Trial: Testimony May Still Be Believed
    25.7.6 Combining Reasons For Questioning Credibility Of Informers And Accomplices In A Single Instruction
    25.7.7 Jailhouse Informer: Cautionary Instruction
    25.7.8 Testimony Of Paid Informant: Procedural Safeguards To Be Followed

25.8 Dying Declaration
    25.8.1 Dying Declarations To Be Viewed With Caution
    25.8.2 Dying Declaration: Factors To Consider As To Declarant's State Of Mind
    25.8.3 Dying Declaration: Improper For Police To Wait For Victim's Condition To Worsen Before Taking Statement
    25.8.4 Dying Declaration: Not To Be Regarded As Having Same Weight As Sworn Testimony In Open Court
    25.8.5 Dying Declaration: Declarant Must Have Abandoned Hope
    25.8.6 Dying Declaration: View That No Instruction Should Be Given
    25.8.7 Dying Declaration: Challenge

25.9 Electronic Recordings
        25.9.1 Tape Recording: When No Transcript Used
            25.9.1.1 Tape Recording: When No Transcript Used -- Jury Instruction
            25.9.1.2 Role Of Argument Of Counsel

        25.9.2 Tape Recording: When Transcripts Used
            25.9.2.1 Transcript Of Recording Is Not Evidence: Jury To Rely Solely On Recording / Jury To Be Guided Solely By The Tape
            25.9.2.2 Transcript Is Not Evidence: Instruction Should Be Repeated Whenever Recording Is Played
            25.9.2.3 Jury To Determine Whether Transcript Is Correct
            25.9.2.4 Propriety Of Two Separate Transcripts Containing Defendant’s And Prosecution’s Version
            25.9.2.5 Admission Of Transcript Rather Than Recording
            25.9.2.6 Transcript Should Not Go Into Juryroom Absent Stipulation
            25.9.2.7 Transcript Must Be Ignored If Jury Cannot Understand Recording
            25.9.2.8 Transcript Prepared By Officer Who Was Not Present At The Taped Conversation
            25.9.2.9 Playing Of Recordings In Juryroom Must Be Done In Presence Of Bailiff Or Other Court Representative
            25.9.2.10 Jury Request For Replaying Of Recording During Deliberations

        25.9.3 Electronic Recording: Inaudibility
            25.9.3.1 Recordings: Questionable Audibility
            25.9.3.2 Electronic Recording: Whether Partial Inaudibility Warrants Exclusion

        25.9.4 Foreign Language Recording
            25.9.4.1 Jury Should Consider Accuracy Of Foreign Language Translation
            25.9.4.2 Jones Act Requires Admission Of English Translation Transcript Of Foreign Language Audiotapes

        25.9.5 Replaying Recordings
            25.9.5.1 Replaying Recordings: During Deliberations

        25.9.6 Video Recordings
            25.9.6.1 Video Taped Demonstrations: Cautionary Instruction
            25.9.6.2 Video Recording: Consideration Of Facial Expressions, Etc. In Understanding What Was Said
            25.9.6.3 Readback: Replaying Of Video Or Audio Tapes
            25.9.6.4 Replaying Of Video Tape As Prejudicial
            25.9.6.5 Computer Generated Video: "Simulation" vs. "Animation" -- Limiting Instruction
            25.9.6.6 Enhanced And/Or Edited Videotape Evidence

25.10 Polygraph
    25.10.1 Polygraph Evidence: Sample Instructions For Favorable And Unfavorable Polygraph
    25.10.2 Cautionary Instructions Regarding Witness’ Stricken Reference To Polygraph Examination

25.11 Inflammatory Evidence
    25.11.1 Cautionary Instructions: Inflammatory Photographs
    25.11.2 Testimony Relating To Race, Religion Or National Origin Of Defendant Is Improper

25.12 Circumstantial Evidence
    25.12.1 Circumstantial Evidence: Duty To Instruct
    25.12.2 Likelihood That Jurors May Have Heard The Term "Circumstantial Evidence" Outside Of The Courtroom In Common Parlance
    25.12.3 Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant
    25.12.4 Equally Reasonable Inferences Must Be Resolved In Favor Of Defendant: Applicability To Direct Evidence
    25.12.5 Proof Of Intent: Circumstantial Evidence Sufficient
    25.12.6 Conspiracy: Proof By Circumstantial Evidence
    25.12.7 Circumstantial Evidence: Federal Circuit Model Instructions And Notes

25.13 Character Evidence
    25.13.1 Good Character As Defense Theory
    25.13.2 Admission Of Irrelevant Character Evidence Violates Federal Due Process
    25.13.3 Distinction Between Character And Reputation Evidence
    25.13.4 Impeachment By Evidence Of Untruthful Character
    25.13.5 Applicability Of Guilt Phase Instructions: Limitation On Bad Character Evidence Presented At Guilt Phase
    25.13.6 Character Or Reputation Of Victim As Relevant To Self Defense
    25.13.7 Uncharged Acts: Not Relevant To Show Bad Character Or Criminal Propensity Or That Defendant Committed The Charged Act
    25.13.8 Reputation Evidence: Factors To Consider
    25.13.9 Bad Character Evidence As To Associate Of The Defendant: Limiting Instruction
    25.13.10 Sex Crimes: Character Of Defendant As Defense Theory
    25.13.11 Defense Character Witness: Improper For Prosecutor To Ask "Guilt Assuming" Hypotheticals

25.14 Adoptive Admissions: (Pre-Trial Silence/Doyle)
        25.14.1 Adoptive Admissions (Pre-Trial Silence/Doyle): General Issues
            25.14.1.1 Adoptive Admissions: Federal Circuit Model Instructions And Notes
            25.14.1.2 Adoptive Admission (Pre-Trial Silence/Doyle): Distinction Between Pre-Arrest And Post-Arrest Silence
            25.14.1.3 Adoptive Admission (Pre-Trial Silence/Doyle): Circumstances Must Have Warranted A Response
            25.14.1.4 Inference From Pre-Trial Silence: Preliminary Fact Determination
            25.14.1.5 Instruction On Foundational Requirements For Adoptive Admissions
            25.14.1.6 Adoptive Admissions: Jointly Interrogated Defendants

        25.14.2 Adoptive Admission (Pre-Trial Silence/Doyle): Doyle Error (Comment On Defendant’s Pre-Trial Silence)
            25.14.2.1 Adoptive Admissions (Pre-Trial Silence/Doyle): Doyle Error Predicated On Inference Or Innuendo
            25.14.2.2 Adoptive Admissions (Pretrial Silence/Doyle): Post-Miranda Pretrial Silence -- Evidence Presented Or Prosecutorial Comment Made
            25.14.2.3 Adoptive Admissions (Pretrial Silence/Doyle): Believability Of Witness: Post-Miranda Pretrial Silence-- No Evidence Presented
            25.14.2.4 Adoptive Admissions (Pretrial Silence [Doyle]): Comment On Defendant's Post-Arrest Demeanor Is Doyle Error 

25.15 Evidence That Suggests Defendant Was Previously Arrested Or Convicted
    25.15.1 Mugshots/Police Photos Of Defendant: Cautionary Instruction
    25.15.2 Improper To Include Alias In Referring To Defendant In Instructions
    25.15.3 Fingerprints On File
    25.15.4 Jury Not To Speculate About “Masked-Off” Portions Of Photos

25.16 Exercise Of Privilege By Witness
    25.16.1 Cautionary Instruction When Witness Exercises Privilege Outside Of The Presence Of The Jury
    25.16.2 Exercise Of Privilege By Witness: No Cautionary Instruction When Witness Seeks To Conceal Falsity Of Prior Testimony
    25.16.3 Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue
    25.16.4 No Adverse Inference From Exercise Of Marital Privilege
    25.16.5 Improper To Require Witness To Invoke Privilege In Front Of Jury
    25.16.6 Whether Jury May Consider 5th Amendment Privilege Against Self Incrimination On Issue Of Credibility
    25.16.7 Unprivileged Refusal Of Witness To Answer Questions: Consideration As To Credibility
    25.16.8 Cautionary Instruction Regarding Invocation Of 5th Amendment In Front Of The Jury
    25.16.9 Assertion of Privilege by Witness: Duty of Court to Inform Defendant If Witness Decides to Testify
    25.16.10 Prosecution Witness Precluded From Claiming Privilege Against Self Incrimination In Front Of Jury
    25.16.11 Prosecution Witness Claim Of 5th Amendment Privilege On Cross-Examination
    25.16.12 Claim Of Privilege Against Self Incrimination By Defense Witness: Strategy For Defeating Privilege Claim
    25.16.13 Improper For Prosecutor To Call Witness For Purpose Of Forcing Exercising Of Privilege Against Self Incrimination In Front Of Jury
    25.16.14 Psychotherapist-Patient Privilege: No "Dangerous Patient" Exception
    25.16.15 Marital Privilege: Communications That Contravene Marital Harmony Are Not Shielded

25.17 Outbursts By Witnesses
25.17.1 Outbursts By Witnesses: Curative Admonition
25.17.2 Outbursts By Witnesses: Whether Admonition Is Required Sua Sponte
25.17.3 CAVEAT: Outburst By Defense Witness May Broaden Scope Of Testimony
25.17.4 Outburst Or Nonresponsive Answers By Witness As Indication Of Bias Against Defendant

25.18 Interpreters
    25.18.1 Interpreters: Miscellaneous Issues

25.19 Uncharged Acts: Nonpropensity
    25.19.1 Uncharged Acts To Prove Issues Other Than Propensity

25.20 Uncharged Acts To Prove Propensity (FRE 413-415)
    25.20.1 Uncharged Acts Offered To Prove Propensity: Must Be Considered In Light Of All The Evidence
    25.20.2 Uncharged Acts Offered To Prove Propensity: Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt
    25.20.3 Uncharged Acts Offered To Prove Propensity: Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury
    25.20.4 Uncharged Acts: Constitutional Challenge Based On Inequity In Precluding Evidence Of Victim's Prior Consensual Sexual Encounters
    25.20.5 Uncharged Acts Offered To Prove Propensity: Constitutional Challenge To Proof Of Propensity By Uncharged Acts
    25.20.6 Uncharged Acts Offered To Prove Propensity: Analogy To Improper Joinder To Illustrate Prejudice

Chapter 26: Limited Purpose Evidence

26.1 Limited Purpose Evidence: General Rules
    26.1.1 Whether Limited Evidence Should Be Specified
    26.1.2 Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions
    26.1.3 Cautionary Instruction Should Be Given When Prejudicial Event Happens
    26.1.4 Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury
    26.1.5 Situations Where Limiting Instructions May Not Work
    26.1.6 Limited Purpose Evidence: Scope And Purpose Of Instruction
    26.1.7 Limited Purpose Evidence: Federal Circuit Model Instructions And Notes

26.2 Miscellaneous Limiting Instructions
    26.2.1 Failure Of Witness To Answer: Limited To Issue Of Credibility Of Witness
    26.2.2 Witness Afraid To Testify: Limiting Instruction
    26.2.3 Witness Who Has Entered Guilty Plea: Limited Purpose Instruction
    26.2.4 Photograph, Map, Models As Illustrative Evidence: Limiting Instruction
    26.2.5 Fresh Complaint: Limiting Instruction
    26.2.6 Limited Purpose Instruction As To Statements Made By Defendant During Psychiatric Examination Or Treatment
    26.2.7 Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction

26.3 Prior Inconsistent Statements
    26.3.1 Impeachment By Unsworn Prior Inconsistent Statements
    26.3.2 Distinguishing Between Sworn And Unsworn Prior Inconsistent Statements
    26.3.3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda
    26.3.4 Coerced Or Involuntary Statements Not Admissible For Impeachment
    26.3.5 Prior Inconsistent Statements: Federal Circuit Model Instruction and Notes
    26.3.6 Prior Inconsistent Statements: Requirement Of Corroboration By More Than Flight Evidence
    26.3.7 Prior Inconsistent Statements: Impeachment Of Party’s Own Witness

26.4 Prior Consistent Statements
    26.4.1 Prior Consistent Statements: Purpose And Scope Of Instruction
    26.4.2 Preliminary Factual Finding As To Timing Of Prior Consistent Statement

26.5 Uncharged Acts To Prove Issues Other Than Propensity
        26.5.1 Uncharged Acts: Miscellaneous Issues
            26.5.1.1 Uncharged Acts: Avoiding The Term "Offense" Or "Crime"
            26.5.1.2 Uncharged Acts Or Crimes: Sources Of Prejudice
            26.5.1.3 Using Uncharged Acts In Support Of Third Party Defense Theory
            26.5.1.4 Uncharged Acts: Federal Circuit Model Instructions And Notes

        26.5.2 Uncharged Acts: Instructions On Basic Issues
            26.5.2.1 Uncharged Acts: Standard Of Proof
            26.5.2.2 Uncharged Acts: Jury Must First Find That Defendant Committed The Prior Bad Act Or Crime
            26.5.2.3 Uncharged Acts: Admissible Only To Prove Contested Issues
            26.5.2.4 Uncharged Acts: Juror Unanimity As To Foundational Fact
            26.5.2.5 Jury Should First Find Elements As To Which Uncharged Acts Do Not Apply

        26.5.3 Uncharged Acts: Limiting Instructions
            26.5.3.1 Uncharged Acts: Specification Of Limited Purpose
            26.5.3.2 Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes
            26.5.3.3 Uncharged Acts: Clarifying Instruction When Lesser Standard Applies To Uncharged Offense
            26.5.3.4 Instruction Limiting Use Of Gang Evidence
            26.5.3.5 Uncharged Acts May Not Be Used To Show Criminal Propensity
            26.5.3.6 Issues Other Than Identity: Jury Not To Consider Uncharged Act As To Whether Defendant Is Guilty Of Charged Acts
            26.5.3.7 Uncharged Acts: “Shotgun” Limiting Instruction Improper
            26.5.3.8 Limiting Instruction As To Specific Elements To Which Uncharged Acts Apply
            26.5.3.9 Uncharged Acts As Element Of Charged Crime: Limiting Instruction As To Applicable Charges
            26.5.3.10 Uncharged Acts As To Associate Of The Defendant: Limiting Instruction
            26.5.3.11 Need For Uncharged Acts Limiting Instruction Based On Other Charged Offenses
            26.5.3.12 Uncharged Acts: Does Court Have A Sua Sponte Duty To Give A Limiting Instruction?
            26.5.3.13 Uncharged Crimes: Instruction Both At The Time The Evidence Is Received And In The Final Charge
            26.5.3.14 Uncharged Acts: Limiting Instructions -- Federal Models

26.6 Transcript Of Recording
    26.6.1 Transcript Of Recording: Miscellaneous Issues

26.7 Child Abuse Evidence To Explain Testimony Or Conduct
    26.7.1 Prior Victimization By Others To Explain Why Victim Displayed Child Abuse Symptoms: Limiting Instruction

26.8 Exfelon Status To Prove Element Of The Charge
    26.8.1 When Exfelon Status Is Proven By Specific Evidence

26.9 Prior Conviction For Impeachment Purposes
    26.9.1 Prior Conviction For Impeachment Purposes

26.10 Evidence Not Admitted Against All Codefendants
    26.10.1 Jury Must Not Consider Evidence Admitted Solely Against Some Defendants And Not Others
    26.10.2 Inculpatory Statement Of One Codefendant In Multi-Defendant Trial (Bruton)

26.11 Character And Reputation Evidence
    26.11.1 Character And Reputation Evidence

Chapter 27: Witness Credibility

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

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

27.3 Witness Credibility: Applicability To Defendant
    27.3.1 Witness Credibility: Applicability To Defendant
    27.3.2 Prior Conviction Of Defendant

27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction: Limiting Instruction
    27.4.1 Impeachment Of Codefendant With Prior Conviction
    27.4.2 Prior Conviction Of Witness: Cautionary Instruction Should Be Given Before The Witness Answers The Question
    27.4.3 Impeachment Of Witness With Felony Conviction: Reversible Error To Refuse Limiting Instruction
    27.4.4 Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner
    27.4.5 Impeachment Of Codefendant With Prior Conviction: Limiting Instruction
    27.4.6 Impeachment Of Witness With Prior Conviction: Federal Circuit Model Instructions And Notes
    27.4.7 Prior Conviction To Impeach Prosecution Witness: Felonies Which Have Been Reduced To Misdemeanors
    27.4.8 Prior Conviction To Impeach Prosecution Witness: Pending Misdemeanors

27.5 Witness Credibility: Out-Of-Court Statements
    27.5.1 Witness Credibility: Applicability To Out-Of-Court Statements Or Declarants
    27.5.2 Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant's Statements

27.6 Police Officers And Governmental Employees
    27.6.1 Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness
    27.6.2 Testimony Of Governmental Employee: Credibility To Be Judged As Any Other Witness
    27.6.3 Testimony Of Police Officers and Other Officials: Professional Interest As Credibility Factor
    27.6.4 Bias Of Police Or Government Witness: Potential Benefit From Forfeiture In Drug Case
    27.6.5 Law Enforcement Witness Credibility: "Blue Wall Of Silence"

27.7 Miscellaneous Credibility Issues
    27.7.1 Witnesses Receiving Personal Inducements From Prosecution: Informants, Etc.
    27.7.2 Accomplice Cautionary Instructions
    27.7.3 Immunized Witness
    27.7.4 Exercise Of Privilege By Witness
    27.7.5 Hypnotized Witness: Cautionary Instruction
    27.7.6 Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath
    27.7.7 "Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses
    27.7.8 Witness Willfully False (Falsus In Uno): Definition of "Material Part"1

28.1 Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements
28.2 Jury Should Consider Whether The Defendant's Out-Of-Court Statement Was Voluntary
28.3 Statement Of Defendant To Police: Factors To Be Considered In Deciding Voluntariness
        28.3.1 Voluntariness Of Statement: Denial Of Right To "Consul" Under Vienna Convention
28.4 Slight Coercion Can Induce Involuntary Statement
28.5 Statement Of Defendant To Private Citizen: Jury Must Consider Coercion As To The Credibility And Weight Of The Statement
28.6 Jury Need Not View All Parts Of The Statement Equally
28.7 Instruction On Defendant's Statements Should Not Assume The Statement Was Made
28.8 Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"
28.9 Even If Accurately Recorded And Voluntarily Made, Defendant's Statement May Still Not Be Truthful
28.10 Defense Theory That Mental Disorder Of Defendant Caused Him To Make A False Confession
28.11 Special Instruction Where Corpus Delicti Must Be Established Independent Of Defendant's Statements
28.12 Limited Purpose Instruction As To Statements Made By Defendant During Psychiatric Examination Or Treatment
28.13 Defendant's Out Of Court Statements: Federal Circuit Model Instructions And Notes
28.14 Statement, Admission Or Confession (Waiver Of Miranda): Impact Of Defendant's Mental Retardation
28.15 Defense Theory That Confession Or Admission Was The Result Of Specific Threats From Others
28.16 Exclusion Of Expert Testimony On False Confessions

Chapter 29: Expert Opinion Testimony

29.1 Expert Qualification And Scope Of Expert Testimony
    29.1.1 Expert Qualification: Usefulness To Jury
    29.1.2 Publication Not Required To Be Expert Witness
    29.1.3 Expert Witnesses: Impact Of Daubert v. Merrell-Dow and Kumho Tire
    29.1.4 Expert Opinion Testimony Inadmissible As To Definition Of The Crime Or Defendant's Guilt
    29.1.5 "Drug Involvement Profile" Evidence Inadmissible As Substantive Proof Of Guilt
    29.1.6 Expert Witness Testimony On Ultimate Issue Must Be Essential To Jury's Understanding Of That Issue
    29.1.7 Right To Expert Testimony Which Is Relevant To Defense Theory
    29.1.8 Expert Witness: Recovered Repressed Memory Testimony
    29.1.9 Improper Prosecutorial Comment On Failure Of Expert To Testify As To Defendant's Mental State
    29.1.10 Limitations On Expert Testimony Regarding Gangs
    29.1.11 Bias Of Police Officer As Expert Witness Based On Potential Forfeiture Of Defendant's Assets
    29.1.12 Expert Witness: "Barefoot Insole Impressions"
    29.1.13 Challenge To Expert Testimony That Fingerprints "Match"
    29.1.14 Expert Testimony: Not Admissible Regarding Reasonable Person Standard (Objective Reasonableness)
    29.1.15 Sexual Assault Of Child: Expert Testimony That Charge Is Inconsistent With The Defendant’s Character Traits 
    29.1.16 Improper Profile Evidence Of Defendant As Wife Batterer Turned Murderer
    29.1.17 False Confession Expert: Admissibility Under Defendant’s Right To Present A Defense
    29.1.18 Challenge To Expert Handwriting Comparison
    29.1.19 Challenging Expert Bias
    29.1.20 Challenging Child Abuse Experts
    29.1.21 Challenging Experts: False Credentials
    29.1.22 Challenging Experts: Judicial Comments On Reliability
    29.1.23 Challenging Experts: Malingering
    29.1.24 Challenging Experts: Pathology
    29.1.25 Challenging Experts: Psychological Disorders
    29.1.26 Challenging Experts: Time Of Death
    29.1.27 Challenging Experts: Confrontation    

29.2 Instruction On Expert Testimony
    29.2.1 Duty To Instruct On Testimony Of Expert Witness
    29.2.2 Deletion Of The Term “Expert” From Expert Witness Instruction
    29.2.3 Duty To Instruct Even If Witness Not Formally Designated An Expert
    29.2.4 Consideration Of The Foundation Of The Opinion
    29.2.5 Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion
    29.2.6 Weighing One Expert Against Another
    29.2.7 Expert Witness: Hypothetical Question
    29.2.8 Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony
    29.2.9 Court-Appointed Expert Should Be Treated The Same As Any Other
    29.2.10 Scientific Tests: Cautionary Instruction Regarding Technical Equipment and Procedures
    29.2.11 Child Abuse Expert -- Limiting Instruction
    29.2.12 Expert Opinion Testimony: Federal Circuit Model Instructions And Notes
    29.2.13 Impeachment Of Expert Witness By Evidence Of Untruthful Character Or Reputation
    29.2.14 Jury Reliance On Professional Expertise Of Jurors
    29.2.15 Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness
    29.2.16 Uncontradicted Expert Can Be Rejected

29.3 Challenging Prosecution Forensic Evidence
    29.3.1 Challenging Prosecution Forensic Evidence

30.1 Lay Or Nonexpert Opinion Testimony

Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of "Total-Case" Strategy
    31.1.1 Eyewitness Identification: Importance Of Early Preparation And Total-Case Strategy
    31.1.2 Eyewitness Identification: Pre-Trial Motions
    31.1.3 Eyewitness Identification: Discovery
    31.1.4 Eyewitness Identification: Expert Consultants
    31.1.5 Eyewitness Identification: Educating Jurors During Voir Dire
    31.1.6 Eyewitness Identification: Opening Statement
    31.1.7 Eyewitness Identification: Cross-Examination: Strategies And Tactics
    31.1.8 Eyewitness Identification: Closing Argument
    31.1.9 Eyewitness Identification: Federal Circuit Model Instructions And Notes
    31.1.10 Eyewitness Identification Web Site
    31.1.11 Eyewitness Identification: Department Of Justice Guidelines On Eyewitness Identification Procedures

31.2 Eyewitness Jury Instruction Strategy
    31.2.1 CAVEAT: Telfaire Instruction On Identification May Increase The Rate Of Conviction
    31.2.2 Laying The Evidentiary Foundation
    31.2.3 Eyewitness Identification: Expert Witnesses
    31.2.4 Expert Witness Instruction As Substitute For Eyewitness Expert Testimony
    31.2.5 Mistaken Identification Defense Does Not Foreclose Other Defenses
    31.2.6 Eyewitness Identification: Judicial Notice
    31.2.7 Eyewitness Identification: Conveying Psychological Principles During Argument
    31.2.8 Shifting The Burden To The Prosecution To Lay The Evidentiary Foundation To Support Its Assumptions About The Eyewitness Testimony
    31.2.9 Reference To The Identification As A "Choice" Of The Witness Rather Than As An "Identification"
    31.2.10 Right To Instruction On Eyewitness Identification As Defense Theory
    31.2.11 Right To Instruction On Eyewitness Factors
    31.2.12.1 Eyewitness Identification Factors: Federal
    31.2.12.2 Eyewitness Identification Factors: States
    31.2.13 Eyewitness Identification: Jury Must Consider All Relevant Factors Together
    31.2.14 "Short Form" Instruction On Eyewitness Factors
    31.2.15 Mistaken Identity: Right To Instruction On Prosecution Burden
    31.2.16 Mistaken Identity Relationship To Presumption Of Innocence
    31.2.17 Improper For Witness To Identify Defendant From Surveillance Photo Unless Witness Previously Knew Defendant Or Defendant’s Appearance Changed

31.3 Miscellaneous Eyewitness Instructions
    31.3.1 Eyewitness Identification: Honest But Mistaken Identification
    31.3.2 Eyewitness Identification: Proof That Defendant Was At The Scene Of The Crime Is Not Sufficient
    31.3.3 Eyewitness Failing To Attend Pre-Trial Lineup
    31.3.4 Eyewitness Identification Instruction Should Not Use The Term "Defendant"
    31.3.5 Failure Of Eyewitness To Identify Defendant Or Identification Of Different Person On Prior Occasion
    31.3.6 Eyewitness Identification Should Be Viewed With Caution
    31.3.7 Eyewitness Identification: Single Or One-Witness Identification
    31.3.8 Whether Corroboration Evidence May Be Considered As To Reliability Of Eyewitness Identification
    31.3.9 Eyewitness Identification: Whether Sequential Lineups Are More Reliable Than Traditional Simultaneous Lineups
    31.3.10 Eyewitness Identification: Whether Double-Blind Lineups Are Fairer Than Traditional Simultaneous Lineups
    31.3.11 Eyewitness Identification: Admissibility Of Nonidentification Evidence
    31.3.12 Eyewitness Identification: Hearsay Testimony Regarding Pretrial Identification

31.4 Common Misconceptions Regarding Eyewitness Identification: Issues And Instructions
    31.4.1 Eyewitness Identification: The Misconception That Witness Confidence Increases Reliability
    31.4.2 The Misconception That Eyewitness Memory For Details About Peripheral Matters Is Related To The Accuracy Of The Central Identification
    31.4.3 The Misconception That Witnesses Remember The Details Of Violent Events Better Than Those Of Nonviolent Events
    31.4.4 Jurors' Focus Should Be On How Long The Victim Saw The Culprit's Face, Not On The Duration Of The Event
    31.4.5 Juror Misconceptions Regarding Cross-Racial Identification
    31.4.6 Misconception That Mistaken Prior Identification Will Be Corrected
    31.4.7 Cross-Ethnic Identification

31.5 Event Factors Which May Affect Eyewitness Accuracy
    31.5.1 Eyewitness Factors: Opportunity The Witness Had To Observe The Offender At The Time Of The Offense
    31.5.2 Eyewitness Factors: Length Of Time The Witness Had To Observe The Offender
    31.5.3 Eyewitness Factors: Lighting Conditions/Visibility
    31.5.4 Eyewitness Factors: Distance Between Witness and Perpetrator
    31.5.5 Eyewitness Factors: The Circumstances Surrounding The Identification Itself
    31.5.6 Eyewitness Factors: Whether The Witness Was Paying Close Attention Degree Of Attention
    31.5.7 Eyewitness Factors: Distinctive Features Or Characteristics Of The Culprit
    31.5.8 Eyewitness Factors: Relative Positioning Of The Witness And Culprit
    31.5.9 Eyewitness Factors: Other Event Circumstances Affecting The Identification

31.6 Witness Factors Which May Affect Eyewitness Accuracy
    31.6.1 Eyewitness Factors: Whether Witness Had Known Or Observed The Person At An Earlier Time
    31.6.2 Eyewitness Factors: Emotional/Stress/Mental State Of The Witness
    31.6.3 Eyewitness Factors: Physical Ability
    31.6.4 Eyewitness Factors: Stress And Fear
    31.6.5 Eyewitness Factors: Weapon Focus Effect
    31.6.6 Eyewitness Identification: Unconscious Transference
    31.6.7 Cultural Stereotypes Or Expectations As Basis For Challenging Eyewitness Identification
    31.6.8 Eyewitness Factors: Age Of Witness
    31.6.9 Gender
    31.6.10 Training
    31.6.11 Use Of Drugs Or Alcohol By Eyewitness

31.7 Impact Of Post-Event Factors On Accuracy Of Identification
    31.7.1 Length Of Time That Elapsed Between The Incident And The Next Opportunity The Witness Had To Observe/Identify The Defendant
    31.7.2 Whether The Witness Failed To Make An Identification Of The Defendant
    31.7.3 Whether The Description Given By The Witness Was Close To The Way The Defendant Actually Looked
    31.7.4 The Manner Of The Witness While Testifying
    31.7.5 Level/Degree Of Certainty
    31.7.6 Earlier Description Of The Offender
    31.7.7 Eyewitness Identification: Consideration Of Whether The Witness Changed His Or Her Mind About The Identification
    31.7.8 Eyewitness Identification: Unconscious Bolstering Or Feedback

31.8 Necessity Of Investigating Post-Event Factors
    31.8.1 Necessity Of Investigating Post-Event Factors: General Principles
    31.8.2 In-Court Identification Must Be Independent Of Out-Of-Court Identification Procedures
    31.8.3 Eyewitness Identification: Presence of Codefendant As Suggestive
    31.8.4 Method Of Questioning As Affecting Identification Accuracy
    31.8.5 Failure Of Witness To Identify Defendant On Prior Occasion
    31.8.6 Eyewitness Identification: Standing Behind The Suspect As Suggestive
    31.8.7 Eyewitness Identification: Informing Witness That In Custody Suspect Matches Description As Suggestive

31.9 Applicability Of Eyewitness Identification Principles To Inanimate Objects
    31.9.1 Applicability Of Eyewitness Identification Principles To Inanimate Objects

31.10 Eyewitness Identification: Expert Witnesses
    31.10.1 Eyewitness Identification Expert Testimony: Required By Reliability Concerns Of Federal Constitution
    31.10.2 Eyewitness Identification: Expert Witnesses
    31.10.3 Expert Witness Instruction In Place Of Expert Testimony

Chapter 32: Identification: Scientific Or Forensic Expert Testimony

32.1 Voice Identification
    32.1.1 Voice Identification: Subject To Same Consideration As Eyewitness Identification
    32.1.2 Cross-Racial Voice Identification
    32.1.3 Voice Identification: Age As A Factor
    32.1.4 Voice Identification Of Opposite Sex Is More Reliable
    32.1.5 Challenging Prosecution Forensic Evidence: Voice Identification

32.2 Fingerprint
    32.2.1 Fingerprint Evidence: Cautionary Instruction
    32.2.2 Improper To Characterize Prosecution Witness As Fingerprint “Expert”
    32.2.3 Fingerprints: No Speculation As To Why Defendant’s Fingerprints Were On File
    32.2.4 Fingerprint Evidence: Expert Testimony Not Binding
    32.2.5 Challenging Prosecution Forensic Evidence: Fingerprints

32.3 Dog Tracking
    32.3.1 Dog Tracking: Corroboration Required; Consider With Caution
    32.3.2 Dog Tracking Identification: Factors To Consider
    32.3.3 Dog Tracking Identification: Scent Line-Ups
    32.3.4 Challenging Prosecution Forensic Evidence: Dog Tracking
    32.3.5 Dog Tracking Identification: Use Of Scent Transfer Unit

32.4 DNA
    32.4.1 Challenging DNA Evidence
    32.4.2 DNA Jury Instructions And Motions
    32.4.3 DNA: Improper To Assume Perpetrator’s Ethnicity
    32.4.4 Challenging Prosecution Forensic Evidence: DNA
    32.4.5 DNA: Accused May Seek DNA Testing While Direct Appeal Is Pending

32.5 Ballistics
    32.5.1 Challenging Prosecution Forensic Evidence: Ballistics

32.6 Bitemark Evidence
    32.6.1 Challenging Prosecution Forensic Evidence: Bitemark Evidence

32.7 Blood Testing
    32.7.1 Challenging Prosecution Forensic Evidence: Blood Testing

32.8 Blood Splatter Testimony
    32.8.1 Challenging Prosecution Forensic Evidence: Blood Splatter Testimony

32.9 Bullet Lead Compositional Analysis
    32.9.1 Challenging Prosecution Forensic Evidence: Bullet Lead Compositional Analysis

32.10 Earprints
    32.10.1 Challenging Prosecution Forensic Evidence: Earprints

32.11 Footwear Impression Evidence
    32.11.1 Challenging Prosecution Forensic Evidence: Footwear Impression Evidence

32.12 Gunshot Residue
    32.12.1 Challenging Prosecution Forensic Evidence: Gunshot Residue

32.13   Hair Comparison
    32.13.1 Challenging Prosecution Forensic Evidence: Hair Comparison

32.14   Handwriting
    32.14.1 Challenging Prosecution Forensic Evidence: Handwriting

32.15   Semen Identification and Testing
    32.15.1 Challenging Prosecution Forensic Evidence: Semen Identification And Testing

32.16   Toolmarks
    32.16.1 Challenging Prosecution Forensic Evidence: Toolmarks

33.1 Inference From Possession Of Recently Stolen Property: Miscellaneous Issues
    33.1.1 Possession Of Recently Stolen Property: Intoxication And/Or Mental Impairment As Defense Theory
    33.1.2 Possession Of Recently Stolen Property: Agreement To Purchase Not Sufficient
    33.1.3 Possession Of Recently Stolen Property: Federal Circuit Model Instruction And Notes

33.2 Possession Of Recently Stolen Property: Instruction Should Be Omitted Or Limited Because Defendant Has No Obligation To Testify Or Explain
    33.2.1 Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation
    33.2.2 Possession Of Recently Stolen Property: Defendant’s Testimony Not Necessary To Explain
    33.2.3 Possession Of Recently Stolen Property: Defense Theory That Instruction Violates 5th Amendment Privilege Against Self Incrimination
    33.2.4 Recent Possession Of Stolen Property: Improper When Only Source Of Explanation Would Be The Defendant
    33.2.5 Possession Of Recently Stolen Property: Deletion Of The Term “Unexplained” To Avoid Comment On Defendant's Failure To Testify

33.3 Inference From Possession Of Recently Stolen Property: Propriety Of Instruction
    33.3.1 Possession Of Stolen Property: Improper Comment On The Evidence
    33.3.2 Recently Stolen Property Instruction Because The Defendant Can Waive An Instruction Which "Protects The Defendant"
    33.3.3 Possession Of Recently Stolen Property: Instruction Improper Where Theft Is Defined Without Asportation Requirement
    33.3.4 Possession Of Recently Stolen Property: Objection To Instruction Because It Is A Rule Of Evidence, Not A Rule Of Law
    33.3.5 Possession Of Recently Stolen Property: Instruction Proper Only When Identity Of Thief Is As Issue; Not Proper When Defense Is Claim Of Right
    33.3.6 Possession Of Recently Stolen Property: Great Caution Required

33.4 Possession Of Recently Stolen Property: Predicate Facts
    33.4.1 Possession Of Recently Stolen Property: Defense Theory That Predicate Facts Have Not Been Proven
    33.4.2 Failure To Prove That Possession Of Recently Stolen Property Was "Unexplained"
    33.4.3 Possession Of Recently Stolen Property: Failure To Prove That The Property Was In "Conscious Possession" Of Defendant
    33.4.4 Possession Of Recently Stolen Property: Failure Of Prosecution To Prove That The Possession Was "Recent"
    33.4.5 Possession Of Recently Stolen Property: "Recently" Is A Relative Term
    33.4.6 Defense Theory That Possession Of Stolen Property Was Not Recent: Factors To Consider
    33.4.7 Defense Theory That Defendant Did Not Have Possession Of Recently Stolen Property: Definition Of Possession
    33.4.8 Possession Of Recently Stolen Property: Defense Theory That Prosecution Has Not Proven That Possession Was Exclusive
    33.4.9 Inference From Possession Of Recently Stolen Property: Possession Issues
    33.4.10 Possession Of Recently Stolen Property: Defense Theory That Prosecution Has Not Proven The Burglar And Thief To Be The Same Person

33.5 Possession Of Recently Stolen Property: Limitations
    33.5.1 Possession Of Stolen Property Does Not Prove Robbery As Opposed To Theft, Or The Degree Of The Larceny
    33.5.2 Unexplained Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary
    33.5.3 False Explanation Of Possession Of Stolen Property: Whether Sufficient To Sustain Finding Of Theft
    33.5.4 Recent Possession Of Stolen Goods: Inapplicable To Receiving Or Theft By Receiving
    33.5.5 Defense Theory That Possession Of Recently Stolen Property Is Not Relevant As To Related Nonlarceny Offenses
    33.5.6 Possession Of Recently Stolen Property: Defense Theory That The Passage Of Time Makes Any Inference Less Probative
    33.5.7 Reverse Inference: Lack Of Possession Of Stolen Property Permits Inference Negating Guilt

Chapter 34: Consciousness Of Guilt

34.1 Opposing Or Limiting Consciousness Of Guilt Instructions
    34.1.1 Consciousness Of Guilt As Improper Comment On The Evidence
    34.1.2 “Benefit” Of Consciousness Of Guilt Instruction May Be Waived
    34.1.3 Right Of Defendant To Explain Consciousness Of Guilt
    34.1.4 Jury Must Find Foundational Facts Before Considering Evidence As Consciousness Of Guilt
    34.1.5 Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Guilt
    34.1.6 Use Of Stipulation To Exclude Consciousness Of Guilt Evidence
    34.1.7 Consciousness Of Guilt: Limiting Instruction When Not Applicable To All Charged Offenses
    34.1.8 Consciousness Of Guilt Must Relate To Charged Crime
    34.1.9 Consciousness Of Guilt: Improper Suggestion That Defendant Should Be Required To Explain His Or Her Behavior
    34.1.10 Consciousness Of Guilt: Limitation To Applicable Codefendant

34.2 Consciousness Of Guilt: General Instructional Principles
    34.2.1 Consciousness Of Guilt Requires A Logical Chain Of Inferences
    34.2.2 General Cautionary Instruction Regarding Consciousness Of Guilt Evidence
    34.2.3 Consciousness Of Guilt Evidence Not Sufficient To Prove Guilt “Standing Alone”
    34.2.4 Consciousness Of Guilt: Defendant’s Act Must Be Intentional And Willful
    34.2.5 Feelings Of Guilt Do Not Make The Defendant Guilty
    34.2.6 Consciousness Of Guilt: Equally Consistent Inferences Must Be Resolved In Favor Of The Defendant
    34.2.7 Consciousness Of Guilt Instruction Should Not Be Phrased In Terms Of “Guilt Or Innocence”
    34.2.8 Consciousness Of Guilt: Potential Prejudice When Crime Implying Consciousness Of Guilt Is Joined With Another Substantive Crime
    34.2.9 Significance Of Consciousness Of Guilt Evidence Is For The Jury To Decide
    34.2.10 Consciousness Of Guilt Does Not Create Presumption Of Guilt
    34.2.11 Consciousness Of Guilt: Instruction Language Should Not Pre-Judge The Issue By Characterizing The Evidence As Flight, Etc.
    34.2.12 Consciousness Of Guilt By Codefendant Is Not Testimony Against Defendant For Purposes Of Confrontation And Bruton
    34.2.13 Consciousness Of Guilt: Federal Circuit Model Instructions And Notes

34.3 Flight
    34.3.1 Flight: Innocent Explanation
    34.3.2 Flight: Inapplicable Where Alleged Victim Knew Defendant’s Identity And Place Of Residence
    34.3.3 Flight: Requirement That Charged Crime Be Committed By Someone
    34.3.4 Limitation Of Flight Evidence To Applicable Codefendant
    34.3.5 Applicability Of Flight Of Codefendant To Defendant: Conspiracy Or Joint Venture
    34.3.6 Flight: Third Party Guilt
    34.3.7 Flight: Required Preliminary Facts
    34.3.8 Departure Is Not Flight
    34.3.9 Failure To Appear For Trial Is Not Necessarily Flight
    34.3.10 Jury Should Consider Passage Of Time Between Alleged Flight And Commission Or Accusation Of An Offense
    34.3.11 Flight Inapplicable To Escape When Defendant Being Detained For Two Or More Offenses
    34.3.12 Subsequent Flight: Knowledge Of Accusation Required
    34.3.13 Flight During Prior Unrelated Offense Not Admissible To Show Intent Or Motive
    34.3.14 Prejudicial Impact Of Erroneous Instruction On Flight
    34.3.15 Flight Instruction Improper Where Defendant’s Explanation Is Uncontradicted And Not Incredulous Or Unbelievable
    34.3.16 Flight: Inapplicable To Nature Or Degree Of Crime
    34.3.17 Inapplicability Of Flight Instruction To Crimes Where Flight Is An Element
    34.3.18 Objection To Flight Instruction As Improper Comment On The Evidence

34.4 False Statements
    34.4.1 Consciousness Of Guilt: Falsehood -- Proof Of Necessary Preliminary Facts
    34.4.2 Only False Portion Of Statement May Be Considered
    34.4.3 Consciousness Of Guilt From False Statement: Not Applicable To Defendant's Trial Testimony
    34.4.4 Only Applicable To Collateral Facts Or Incredible Statements
    34.4.5 Defendant's False Exculpatory Statement: Requirement That Defendant Knew Statement Was False
    34.4.6 False Statements Must Occur After The Charged Crime
    34.4.7 False Statements Must Relate To Defendant's Criminal Liability
    34.4.8 False Statement Instruction: Improper Where Defendant Later Confesses
    34.4.9 False Statement Instruction: Not Applicable Where Defendant's Statements
    34.4.10 False Statement Instruction Not Permissible Unless Substance Of The Statement Is Presented In Evidence
    34.4.11 False Statements: Inapplicable To Nature Or Degree Of Crime
    34.4.12 False Statements: Applicability To Third Party Guilt
    34.4.13 Disbelief Of Alibi Evidence: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication
    34.4.14 False Statements: Limitation To Applicable Codefendant

34.5 Suppression Or Fabrication Of Evidence
    34.5.1 Efforts by Defendant to Alter Evidence In Multiple Defendant Cases: Only Applicable To Defendant Who Made The Attempt
    34.5.2 Suppression Or Fabrication Of Evidence By Third Party: Requirement That Defendant Authorized The Third Party's Conduct
    34.5.3 Suppression Or Fabrication Of Evidence: Inapplicable To Nature Or Degree Of Crime
    34.5.4 Suppression Or Fabrication Of Evidence: Applicability To Third Party Guilt Defense Theory

34.6 Refusal To Submit To Official Orders Or Requests
    34.6.1 Refusal Of Court Order: No Consciousness Of Guilt If Refusal Based On Attempt To Exercise Legal Rights
    34.6.2 Defendant's Mistaken Reliance On Rights As Negating Consciousness Of Guilt
    34.6.3 Refusal To Participate In Line Up As Consciousness Of Guilt
    34.6.4 Consciousness Of Guilt: Refusal To Provide Evidence -- No Inference From Refusal To Be Examined By Psychiatrist
    34.6.5 Refusal To Submit To Official Orders Or Requests: Inapplicable To Nature Or Degree Of Crime
    34.6.6 Refusal To Consent To Search Based On Assertion Of Fourth Amendment Rights

34.7 Refusal To Submit To Blood Alcohol Test
    34.7.1 Refusal Of Blood Alcohol Test: No Consciousness Of Guilt If Refusal Based On Attempt To Exercise Legal Rights
    34.7.2 Refusal To Submit To Blood Alcohol Test: 4th Amendment Challenges
    34.7.3 Probable Cause As Prerequisite To Considering Refusal Of Defendant To Submit To Blood Alcohol Testing
    34.7.4 5th Amendment Challenge to Comment On Refusal To Submit To Blood Alcohol Test
    34.7.5 5th Amendment Challenge To Testimonial Response Of Defendant Elicited By Request For Blood Alcohol Test
    34.7.6 Refusal to Take Blood Alcohol Test: Instruction as Improper Comment on the Evidence
    34.7.7 Refusal Of Blood Test: Fear Of Endangering Health From Withdrawal Of Blood
    34.7.8 Refusal To Submit To Blood Alcohol Test: Inapplicable To Nature Or Degree Of Crime
    34.7.9 Defense Theory That Defendant Did Not Willfully Refuse The Blood Alcohol Test
    34.7.10 Due Process Challenge To Admission Of Defendant's Blood Alcohol Test Refusal Based On The Denial Of The Defendant's Request For Counsel
    34.7.11 Defense Theory That Subsequent Consent Cures Initial Refusal Of Sobriety Test
    34.7.12 Refusal Of Blood Alcohol Test: Defense Theory That Physical Trauma And/Or Head Injuries Impaired Defendant's Ability To Function Normally

34.8 Miscellaneous Types Of Consciousness Of Guilt
    34.8.1 Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction
    34.8.2 Consciousness Of Guilt: Defendant's Change Of Appearance
    34.8.3 Consciousness Of Guilt: Telephoning Attorney Insufficient
    34.8.4 Miscellaneous Types Of Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Crime

Chapter 35: Consciousness Of Innocence

35.1 Instruction On Consciousness Of Innocence, Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.
35.2 Instruction On Consciousness Of Innocence To Remove Unfair Imbalance Between Prosecution And Defense
35.3 Instruction On Consciousness Of Innocence As Defense Theory
35.4 Consciousness Of Innocence Based On Rejection Of Immunity Offer
35.5 Consciousness of Innocence: Voluntary Surrender
35.6 Consciousness of Innocence: Voluntary Consent To Search

Chapter 36: Missing, Lost, Destroyed Or Suppressed Evidence

36.1 Destroyed Or Lost Evidence
    36.1.1 Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution
    36.1.2 Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution
    36.1.3 Instruction Regarding Intimidation Of Witnesses By Prosecution Investigator
    36.1.4 Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved
    36.1.5 Failure To Investigate, Conduct Tests Or Follow Police Procedures
    36.1.6 Missing Evidence: Consumption Of Sample By Prosecution Testing
    36.1.7 Instruction For Brady Violation
    36.1.8 Reasonable Doubt May Be Based On Destruction, Loss Or Suppression Of Material Evidence Alone
    36.1.9 Failure To Produce Document Or Other Tangible Evidence At Trial
    36.1.10 Due Process Violation For Deportation Of Material Witness
    36.1.11 Witness Credibility: Consideration Of Defects In Investigation
    36.1.12 Witness Credibility: Consideration Of Defects In Investigation

36.2 Missing Witness
        36.2.1 General Principles And Instructions
            36.2.1.1 Missing Witness: Sample Instruction
            36.2.1.2 CAVEAT: Use Of Missing Witness Instruction Against Defendant May Be Improper
            36.2.1.3 Missing Witness Instruction For Informant: Necessity Of Prior Request For Disclosure

        36.2.2 Applicability Of Missing Witness Instruction Or Argument
            36.2.2.1 When Neither Party Calls Missing Witness Who Is Equally Available
            36.2.2.2 "Reverse Missing Witness" Instruction When Witness Is Codefendant Or Accomplice And Cannot Be Called By Defendant
            36.2.2.3 Missing Witness Not A Substitute For Proof Of Specific Facts
            36.2.2.4 General Instruction That No Inference Should Be Drawn From Failure To Present Evidence
            36.2.2.5 Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences
            36.2.2.6 Missing Witness/Missing Evidence Instruction Where Prosecution Has Failed To Use Due Diligence To Maintain Contact With Witness
            36.2.2.7 Applicability Of Missing Witness Instruction To Police Officer Not Called By Prosecution
            36.2.2.8 Applicability Of Missing Witness Instruction When Prosecution Fails To Call Victim