COMMENT
The instruction is derived from Fifth Circuit 2.2, Eighth Circuit 2.02, and former Ninth Circuit 2.3. Cf. Ninth Circuit 2.1. The last two sentences are derived from New Mexico Criminal Instruction § 14-113.When the stipulation is to what a witness would testify to if called, it is error to instruct the jury that it is to consider the stipulated testimony as true. United States v. Benally, 756 F.2d 773 (10th Cir. 1985). See Instruction 2.4 if the stipulation is as to an issue of fact.
