The deposition of [name of witness], which was taken on [date], is about to be [has been] presented to you [by a video] [by reading the transcript]. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify.
[Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]
COMMENT
The instruction is derived from former Ninth Circuit 2.6. Cf. Ninth Circuit 2.4. For a variation, see Fifth Circuit 2.23.This instruction should be given when deposition testimony is admissible and offered as substantive evidence. See Fed.R.Evid. 804(b)(1), 801(d)(2); Fed.R.Civ.P. 32(a). It should be given before the testimony is read to the jury. The instruction can be modified to be given at the beginning of the trial, as well as when the evidence is presented.
This instruction is not appropriate if answers are being used for impeachment only. If more than one deposition is read into evidence or otherwise presented during the trial, the jury may be reminded of how depositions are taken. But it is not necessary to repeat the entire instruction.
