2 PJI 3 | STIPULATION OF TESTIMONY
The parties have agreed that if [witness's name] were called as a witness, [he/she] would testify that [state the stipulated testimony]. This testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if [name of witness] had been present to testify. You must accept the fact that [name of witness] would have given that testimony. However, it is for you to determine the effect or weight to be given to that testimony.
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.
(Last Updated October 2017)
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