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2 PJI 1 | IMPEACHMENT OF WITNESS’S CHARACTER FOR TRUTHFULNESS

You [are about to hear] [have heard] evidence that [name of witness], a witness, [e.g., has been convicted of a felony, committed forgery on a prior occasion, etc.]. You may use that evidence only to help you decide whether to believe the testimony of the witness and to determine how much weight to give it. That evidence does not mean that the witness engaged in any conduct alleged in this case, and you must not use that evidence as any proof that the witness engaged in that conduct.
COMMENT This instruction is derived from Eighth Circuit 2.09 and former Ninth Circuit 3.12. Cf. Ninth Circuit 2.8. For variations, see Fifth Circuit 2.17 (covering prior convictions only).

The bracketed alternative allows this instruction to be given not only at the time of testimony but also at the close of the evidence. The instruction is intended to cover the admission of bad acts and convictions under Federal Rules of Evidence 608 and 609.

(Last Updated October 2017)

2 PJI 2 | JUDICIAL NOTICE

The rules of evidence permit the judge to accept facts that cannot reasonably be disputed. This is called judicial notice. I have decided to accept as proved the fact that [state the fact that the court has judicially noticed], even though no evidence has been introduced to prove this fact. You must accept this fact as true for purposes of this case.
COMMENT The instruction is derived from former Ninth Circuit 2.5. Cf. Ninth Circuit 2.3. For variations, see Fifth Circuit 2.4 and Eighth Circuit 2.04.

An instruction on judicial notice should be given at the time that notice is taken. It may also be given at the time the jury is charged at the close of the evidence.

Federal Rule of Evidence 201(f) provides:
“In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.”

(Last Updated October 2017)

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.
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.

(Last Updated October 2017)

2 PJI 4 | STIPULATION OF FACT

The [parties] have agreed that [set forth stipulated fact or facts] [is/are] true. [The parties have stipulated that certain facts are true, and those stipulations have been read to you during this trial.] You must therefore treat [this fact] [these facts] as having been proved for the purposes of this case.
COMMENT The instruction is derived from Fifth Circuit 2.3 and Eighth Circuit 2.03. For a variation, see Ninth Circuit 2.2 (using “should” rather than “must”). The bracketed material concerning stipulated facts previously read to the jury can be used when the stipulations are too numerous to recount.

This instruction could be applied to matters admitted by way of pleading or a request for admission, as well as to facts stipulated during the trial. If a stipulation or admission is as to a matter of fact, the jury is to be instructed that it must consider the fact as true. Compare Instruction 2.3 (stipulation as to what testimony would be if given).

(Last Updated October 2017)

2 PJI 5 | USE OF DEPOSITION

A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath and swears to tell the truth, and lawyers for each party may ask questions. A court reporter is present and records the questions and answers.

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.

(Last Updated October 2017)

2 PJI 6 | USE OF INTERROGATORIES

You will now hear [have heard] answers that [name of party] gave in response to written questions submitted by the other side. The written questions are called “interrogatories.” The written answers were given in writing and under oath, before the trial.

You must consider [name of party]’s answers to interrogatories in the same manner as if the answers were made from the witness stand.

COMMENT The instruction is derived from former Ninth Circuit 2.13. Cf. Ninth Circuit 2.10.

This instruction should be used before the interrogatories are read to the jury. It can be modified to be given again at the close of the evidence. The instruction is not appropriate if the answers to the interrogatories are used for impeachment only. See Fed.R.Civ.P. 33.

This instruction should not be used for requests for admission under Fed.R.Civ.P. 36. The effect of a request for admission is conclusive as to the fact admitted.

(Last Updated October 2017)

2 PJI 7 | CHARTS AND SUMMARIES IN EVIDENCE

[Name of party] has presented exhibits in the form of charts and summaries. I decided to admit these charts and summaries in place of the underlying documents that they represent in order to save time and avoid unnecessary inconvenience. You should consider these charts and summaries as you would any other evidence.
COMMENT The instruction is derived from Sand et al., Modern Federal Jury Instructions, No. 74-11 (2004). “[C]harts and summaries are powerful visual displays for which some judicial explanation is required. Such an instruction will ensure that they are not given improper consideration by the jury.” Id.; compare Instruction 2.8 (providing a limiting instruction when charts and summaries are not evidence).

For a variation, see Ninth Circuit 2.13 (“Charts and summaries 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.”).

(Last Updated October 2017)

2 PJI 8 | CHARTS AND SUMMARIES NOT ADMITTED IN EVIDENCE

Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain or illustrate the contents of books, records, documents, testimony, or other evidence in the case. [Describe the charts and summaries that have not been admitted.] These charts and summaries are not themselves proof of any facts. They are not binding on you in any way. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the evidence.
COMMENT The instruction is derived from former Ninth Circuit 3.9. Cf. Ninth Circuit 2.12.

This instruction is applicable to pedagogical devices and illustrations. Use of this material is governed by Rule 611(a) of the Federal Rules of Evidence, and not by Rule 1006 (which applies to summaries of admissible evidence where that evidence is too voluminous to be examined conveniently in court). See United States v. DeBoer, 966 F.2d 1066, 1069 (6th Cir. 1992) (summaries of already admitted evidence are permissible “so long as an appropriate limiting instruction informs the jury that ‘the chart is not itself evidence but is only an aid in evaluating the evidence’”). If a chart or summary is used only to illustrate or explain evidence already admitted, then it is not itself evidence, and it may not be sent to the jury room.

It is suggested that this instruction be given both at the time the summary is used and at the end of the case. See, e.g., United States v. Ray, 370 F.3d 1039, 1047 n.8 (10th Cir. 2004) (suggesting that the court repeat the limiting instruction “in writing at the trial’s conclusion”), vacated on other grounds, 543 U.S. 1109 (2005).

(Last Updated October 2017)

2 PJI 9 | STRIKING EVIDENCE

I have ordered that [describe the evidence] be struck from the record and I am instructing you that you must disregard that information [testimony]. That means that when you are deciding the case, you must not consider that information [testimony] in any way.
COMMENT The instruction is derived from former Ninth Circuit 1.7. Cf. Ninth Circuit 1.10. It can also be altered to be given as part of a general instruction on evidence at the beginning of the case. See Instruction 1.5. The instruction is to be given when the evidence is struck, and not at the end of the case, as it could be counterproductive to describe the evidence that has been struck at that later point.
(Last Updated October 2017)

2 PJI 10 | EVIDENCE ADMITTED FOR A LIMITED PURPOSE

You [have heard] [will now hear] evidence that was received for [a] particular limited purpose[s]. [This evidence can be considered by you as evidence that (describe limited purpose)]. It may not be used for any other purpose. [For example, you cannot use it as proof that (discuss specific prohibited purpose)].
COMMENT The instruction is derived from Fifth Circuit 2.15, Eighth Circuit 2.08B, and former Ninth Circuit 1.5. Cf. Ninth Circuit 1.8.

This instruction can be modified slightly to be given again at the close of the evidence. The Court of Appeals has stated, however, that it is error to fail to give a requested limiting instruction “at the time the evidence [i]s admitted.” United States v. Davis, 726 F.3d 434, 445 (3d Cir. 2013) (identifying this issue in a case where the court gave the instruction “only in the final jury charge”).

The Third Circuit has expressed a preference for an instruction that tells the jury both how the evidence can be used and how it must not be used. See Government of Virgin Islands v. Mujahid, 990 F.2d 111 (3d Cir. 1993) (trial judge should tell the jury that a guilty plea of a coconspirator can be used for impeachment of the coconspirator but cannot be used as proof of the defendant’s guilt). See also United States v. Lee, 612 F.3d 170, 191 & n.25 (3d Cir. 2010) (discussing Third Circuit Model Criminal Jury Instruction 4.29 and “encourag[ing] district court judges to delineate the specific grounds for admissibility of 404(b) evidence, even if the entire 404(b) litany has already been recounted”); United States v. Ciavarella, 716 F.3d 705, 728 n.15 (3d Cir. 2013) (noting that evidence admitted under Rule 404(b) “must... ‘be accompanied by a limiting instruction (where requested) about the purpose for which the jury may consider it’ ” (quoting United States v. Cross, 308 F.3d 308, 320-21 (3d Cir. 2002))); Davis, 726 F.3d at 445 (finding error in jury instruction that “included a wide list of purposes” despite trial court’s ruling that the evidence in question was admissible only “to prove knowledge”); SEC v. Teo, 746 F.3d 90, 97 (3d Cir. 2014) (concluding that the district court’s limiting instruction “provid[ed] a meaningful delineation of character evidence from evidence that goes to intent and the absence of mistake” and that it “capture[d] the key points of this Court’s Model [Criminal] Jury Instruction[ § 4:29]”); United States v. Bailey, 840 F.3d 99, 128-29 & n.138 (3d Cir. 2016) (quoting an instruction that “undisputedly met” the requirement for a requested limiting instruction under Rule 404(b) by contrasting permissible and impermissible uses of the evidence), cert. denied, 137 S. Ct. 1116 (2017); United States v. Repak, 852 F.3d 230, 248 (3d Cir. 2017) (holding that the district court “appropriately provid[ed] limiting instructions for the other-acts evidence as requested by” the defendant, and quoting the relevant instructions, which directed that the evidence could be used “only for the purpose of” proving the defendant’s state of mind). Cf. United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014) (stressing “that Rule 404(b) must be applied with careful precision, and that evidence of a defendant's prior bad acts is not to be admitted unless both the proponent and the District Court plainly identify a proper, non-propensity purpose for its admission”).

For discussions of the importance of a limiting instruction when inadmissible evidence is disclosed to a jury under Evidence Rule 703’s balancing test, see the 2000 Committee Note to Evidence Rule 703 (“If the otherwise inadmissible information is admitted under [Rule 703’s] balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes.”), and Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012) (plurality opinion) (“[E]xperts are generally precluded from disclosing inadmissible evidence to a jury. See Fed. Rule Evid. 703.... [I]f such evidence is disclosed, the trial judges may and, under most circumstances, must, instruct the jury that out-of-court statements cannot be accepted for their truth, and that an expert's opinion is only as good as the independent evidence that establishes its underlying premises.”).

Instruction 2.10 can be used in multiple party cases where evidence is admissible against one party but not another (e.g., a statement by an agent that is admissible against the agent but not the principal).

See Instruction 1.5, including a reference to limited use instructions as part of a general instruction on evidence to be given at the beginning of the case.

(Last Updated October 2017)

2 PJI 11 | OPINION TESTIMONY

You have heard [will hear] testimony containing opinions from [name of witness]. In weighing this opinion testimony, you may consider [his/her] qualifications, the reasons for [his/her] opinions, and the reliability of the information supporting those opinions, as well as the factors I have previously mentioned for weighing the testimony of any other witness. The opinion of [name of witness] should receive whatever weight and credit, if any, you think appropriate, given all the other evidence in the case.

In deciding whether to accept or rely upon the opinion of [name of witness], you may consider any bias that [name of witness] may have, including any bias that may arise from evidence that [name of witness] has been or will be paid for reviewing the case and testifying [or from evidence that [name of witness] testifies regularly and makes a large portion of [his/her] income from testifying in court].

COMMENT This instruction is derived from Fifth Circuit 2.19 and former Ninth Circuit 3.7. Cf. Ninth Circuit 2.11. For a variation, see Eleventh Circuit 5.2 (adding: “When a witness has been or will be paid for reviewing and testifying concerning the evidence, you may consider the possibility of bias and should view with caution the testimony of such a witness where court testimony is given with regularity and represents a significant portion of the witness' income.”).

The instruction avoids labeling the witness as an “expert.” If the court refrains from designating the witness as an “expert” this will “ensure[] that trial courts do not inadvertently put their stamp of authority” on a witness’ opinion, and will protect against the jury’s being “overwhelmed by the so-called ‘experts’.” Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word “Expert” Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154 F.R.D. 537, 559 (1994). See Advisory Committee Note to Federal Rule of Evidence 702 (2000) (cautioning against instructing the jury that the witness is an “expert”).

The bracketed material can be used to give the instruction before the expert testifies. For example, the instruction could be given as part of the initial instruction on matters of evidence. See Instructions 1.51.7.

(Last Updated October 2017)

2 PJI 12 | FOREIGN LANGUAGE TESTIMONY OR AUDIO RECORDING

You are about to hear [testimony of a witness who will be testifying in] [an audio recording in] [language used]. The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the language used, it is important that all jurors consider the same evidence. So you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning.

[In this case there is a dispute over the translation of certain statements in a foreign language. It is for you to determine which, if either, translation is accurate.]

COMMENT The Ninth Circuit has separate instructions for foreign language testimony and foreign language recordings. The model combines them and provides alternatives in brackets. See Ninth Circuit 2.6 and 2.7.

The instruction concerning recordings is appropriate only if the accuracy of the translation is not at issue. See also Instruction 2.13 on transcriptions of recordings.

(Last Updated October 2017)

2 PJI 13 | TRANSCRIPT OF AUDIO-RECORDED CONVERSATION

At this time you are going hear conversations that were recorded. This is proper evidence for you to consider. Please listen to it very carefully. I am going to allow you to have a transcript of the recording [prepared by ___________] to help you identify speakers and as a guide to help you listen to the recording. If you believe at any point that the transcript says something different from what you hear on the recording, remember it is the recording that is the evidence, not the transcript. Any time there is a variation between the recording and the transcript, you must be guided solely by what you hear on the recording and not by what you see in the transcript.

[In this case there are two transcripts because there is a difference of opinion as to what is said on the recording. You may disregard any portion of either or both transcripts if you believe they reflect something different from what you hear on the recording. It is what you hear on the recording that is evidence, not the transcripts.]

COMMENT The instruction is derived from former Ninth Circuit 2.7. Cf. Ninth Circuit 2.5.

This instruction can be modified to be given sometime after the recording is heard, e.g., at the close of the case. See Sixth Circuit (Criminal) § 7.17:
You have heard some tape recordings that were received in evidence, and you were given some written transcripts of the tapes. Keep in mind that the transcripts are not evidence. They were given to you only as a guide to help you follow what was being said. The tapes themselves are the evidence. If you noticed any differences between what you heard on the tapes and what you read in the transcripts, you must rely on what you heard, not what you read. And if you could not hear or understand certain parts of the tapes, you must ignore the transcripts as far as those parts are concerned.

(Last Updated October 2017)

2 PJI 14 | RECESS ADMONITION

We are about to take [our first] [a] recess [and I remind you of the instruction I gave you earlier]. During this recess and any other recess, you must not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, do not tell your fellow jurors but tell me about it immediately. [Do not read, watch or listen to any news reports of the trial, or conduct any research or investigation, including on the Internet. Remember that I told you not to use any electronic tools to communicate with anyone about the case or to do research relating to the case.] Finally, remember to keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

If you need to speak with me about anything, simply give a signed note to [identify court personnel] to give to me.

[I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on occasion.]

COMMENT The instruction is derived from Fifth Circuit 2.1, Eighth Circuit 2.01 and former Ninth Circuit 2.1. Cf. Ninth Circuit 1.12.

Jurors should be reminded that they have duties and responsibilities even when not in court. See, e.g., United States v. Williams, 635 F.2d 744 (8th Cir. 1980) (it is essential to a fair trial that the jury be cautioned as to what conduct is permissible when not in court; an instruction is particularly necessary before the jury separates at night when they will converse with friends and relatives or possibly encounter trial publicity).

This instruction may be modified to be given at the beginning of the trial, as well as before a recess. See also Instruction 1.3 (providing similar admonitions as part of a broader instruction at the beginning of the case).

(Last Updated October 2017)

Congratulations! You're now booked up on Chapter II of the Pattern Jury Instructions from the 1st Circuit Court of Appeals (US)!

Please get the justice you deserve.

Sincerely,



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