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When you retire to the jury room to deliberate, you may take with you [these instructions] [your notes] [and] the exhibits that the Court has admitted into evidence. You should select one member of the jury as your foreperson. That person will preside over the deliberations and speak for you here in open court.
You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine, and nothing that I have said or done during this trial was meant to influence your decision about the facts in any way.
Your second duty is to take the law that I give you, apply it to the facts, and decide if, under the appropriate burden of proof, the parties have established their claims. It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole.
Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.
As jurors, you have a duty to consult with each other and to deliberate with the intention of reaching a verdict. Each of you must decide the case for yourself, but only after a full and impartial consideration of all of the evidence with your fellow jurors. Listen to each other carefully. In the course of your deliberations, you should feel free to re-examine your own views and to change your opinion based upon the evidence. But you should not give up your honest convictions about the evidence just because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of obtaining enough votes for a verdict.
When you start deliberating, do not talk to the jury officer, to me or to anyone but each other about the case. During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a cell phone, smart phone [like Blackberries or iPhones], or computer of any kind; the internet, any internet service, or any text or instant messaging service [like Twitter]; or any internet chat room, blog, website, or social networking service [such as Facebook, MySpace, LinkedIn, or YouTube], to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the internet or available through social media might be wrong, incomplete, or inaccurate. Information that you might see on the internet or on social media has not been admitted into evidence and the parties have not had a chance to discuss it with you. You should not seek or obtain such information and it must not influence your decision in this case.
If you have any questions or messages for me, you must write them down on a piece of paper, have the foreperson sign them, and give them to the jury officer. The officer will give them to me, and I will respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may take some time to get back to you.
One more thing about messages. Never write down or tell anyone how you stand on your votes. For example, do not write down or tell anyone that a certain number is voting one way or another. Your votes should stay secret until you are finished.
Your verdict must represent the considered judgment of each juror. In order for you as a jury to return a verdict, each juror must agree to the verdict. Your verdict must be unanimous.
A form of verdict has been prepared for you. It has a series of questions for you to answer. You will take this form to the jury room and when you have reached unanimous agreement as to your verdict, you will fill it in, and have your foreperson date and sign the form. You will then return to the courtroom and your foreperson will give your verdict. Unless I direct you otherwise, do not reveal your answers until you are discharged. After you have reached a verdict, you are not required to talk with anyone about the case unless I order you to do so.
Once again, I want to remind you that nothing about my instructions and nothing about the form of verdict is intended to suggest or convey in any way or manner what I think your verdict should be. It is your sole and exclusive duty and responsibility to determine the verdict.
COMMENT The instruction is derived from Fifth Circuit 2.11 and 2.12, Eighth Circuit 3.07, former Ninth Circuit 4.1, and the instruction used in the District of Delaware. Cf. Ninth Circuit 3.1.
The portion of the instruction concerning electronic media is drawn from Proposed Model Jury Instructions on the Use of Electronic Technology to Conduct Research on or Communicate about a Case, prepared by the Judicial Conference Committee on Court Administration and Case Management (CACM) in December 2009. See United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (“We enthusiastically endorse [the CACM] instructions and strongly encourage district courts to routinely incorporate them or similar language into their own instructions.”). CACM released an updated version of the model instructions in June 2012 (the updated model is available at http://news.uscourts.gov/revised-jury-instructionshope-deter-juror-use-social-media-during-trial). Obviously, the relevant technologies will evolve over time; users of these instructions should insert a list of current examples in the appropriate place in the instructions.
It may also be useful to remind the jurors, at this point in the case, of the initial instruction to decide the case based only on the evidence presented at trial. See Instruction 1.3; see also Fumo, 655 F.3d at 307 (finding no abuse of discretion in district court’s conclusion that no substantial prejudice resulted from juror’s exposure to extraneous information based partly on fact that “the District Court gave careful and repeated instructions to the jurors, including immediately before deliberation, that they should ‘not let rumors, suspicions, or anything else that [they] may have seen or heard outside of the court influence [their] decision in any way’”).
The Supreme Court has expressed approval of instructions that “explain the jurors’ duty to review the evidence and reach a verdict in a fair and impartial way, free from bias of any kind” and that “emphasize the group dynamic of deliberations by urging jurors to share their questions and conclusions with their colleagues.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017) (quoting, as examples, the following instructions: “Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way” and “It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment”).
The part of the instruction concerning unanimity may be altered if the parties consent to a non-unanimous verdict. See Fed.R.Civ.P. 48.
In the criminal case of United States v. James, 955 F.3d 336 (3d Cir. 2020), the Court of Appeals held that a jury verdict was not final until the jury was polled and the verdict accepted. It approved of the removal of a juror after the jury had been polled because the polling, combined with further inquiry, led the District Judge to have concerns about the juror’s candor, memory, and English language proficiency.
(Last Updated October 2017)
The weight of the evidence to prove a fact does not necessarily depend on the number of witnesses who testify. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves.
COMMENT See Instruction 1.7, where this instruction is included as an alternative to be given as part of a general instruction on credibility of witnesses at the beginning of the case.
This instruction is not to be given routinely, but it might be given, on request, when there is a disproportionate number of witnesses on one side of the case.
(Last Updated October 2017)
At your request, I have decided to have [a transcript of ] [describe the testimony] read [provided] to you in order to assist you in your deliberations. I remind you that you must focus on all of the testimony and evidence presented at the trial. You may not give undue weight to the testimony that is read back to you [provided to you].
COMMENT The instruction contains a bracketed alternative for allowing the jury to receive a transcript of the testimony that the jurors request to re-hear. On allowing read-backs and transcripts of testimony, see United States v. Bertoli, 40 F.3d 1384, 1400 (3d Cir. 1994), where the court stated that two concerns may arise when a jury requests a read-back of testimony:
(1) such requests may slow the trial when the requested testimony is lengthy; (2) if read only a portion of testimony, the jury may give undue weight to that portion. The Bertoli court held, however, that “unless a trial court's refusal to read back testimony is supported by one of these two concerns, a trial judge abuses his discretion by denying the [jury’s] request.” Id. (internal quotation marks omitted). See, e.g., United States v. Shabazz, 564 F.3d 280, 285 (3d Cir. 2009) (it was error to deny jury’s request for read-back of testimony that “ran no longer than 25 minutes” and “was not peripheral, as [the witness] was both the only witness to link Shabazz directly to the robbery who was not testifying in connection with a plea agreement and the only one who expressed some uncertainty about his identification”); United States v. Kolodesh, 787 F.3d 224, 238-39 (3d Cir. 2015) (there was no abuse of discretion, “let alone... plain error,” in trial court’s failure to halt proceedings until it could provide testimony transcripts requested by the jury, or in trial court’s refusal to provide edited portions rather in than full transcripts, or in trial court’s statement to jury that as to one witness, only audio playback was available and not a transcript). The Bertoli court further held that a trial court is within its discretion in providing a transcript of the requested testimony. The Bertoli court suggested that any transcript or read-back should be accompanied by an instruction “to focus on the entire testimony and evidence.” Bertoli, 40 F.3d at 1401.
(Last Updated October 2017)
It is your duty as jurors to consult with one another and to deliberate with a view toward reaching an agreement, if you can do so consistent with your individual judgments. Each of you must decide the case for yourself, but you should do so only after a consideration of the case with your fellow jurors, and you must be open to their opinions. You should not be influenced to vote a certain way, however, by the single fact that a majority of the jurors, or any of them, will vote in a certain way. In other words, you should not surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict, or solely because of the opinions of the other jurors.
In the course of your deliberations you should not hesitate to reexamine your own views, and to change your opinion if you are convinced that those views are wrong. To reach a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to reexamine your own views.
Remember that you are not partisans; you are judges — judges of the facts. Your only interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.
If you should fail to agree on a verdict, the case is left open and must be resolved at a later time. There is no reason to think that another trial would be conducted in a better way or that a different jury would decide it any better. Any future jury must be selected in the same manner and from the same source as you.
We try cases to dispose of them and to reach a common conclusion if it is consistent with the conscience of each member of the jury. I suggest that, in deliberating, you each recognize that you are not infallible, that you listen to the opinions of the other jurors and that you do so carefully with a view to reaching a common conclusion, if you can. You may take all the time that you feel is necessary.
I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.
You may now retire and continue your deliberations.
COMMENT The instruction is derived from Eighth Circuit 3.07 and former Ninth Circuit 4.6. Cf. Ninth Circuit 3.5. See also Third Circuit (Criminal) Instruction 9.05.
An instruction encouraging a deadlocked jury to reach a verdict should be given with great caution. Such an instruction was approved in Allen v. United States, 164 U.S. 492 (1896). But “Allen” charges often have been criticized as coercive and as an unwarranted intrusion upon the province of the jury.
Note that the model instruction does not specifically encourage those jurors in the minority to reconsider their views or distrust their judgment. An instruction to that effect has been declared to be prohibited in the Third Circuit. See United States v. Fioravanti, 412 F.2d 407, 418 (3d Cir. 1969) (“in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error.”). While it has been held that the prohibition on instructions targeted at the minority of jurors is limited to criminal cases, see Cary v. Allegheny Techs., Inc., 267 F. Supp. 2d 442 (W.D. Pa. 2003), the danger of coercion in such a charge cautions against its use even in civil cases. In concluding that a modified Allen charge was “proper” in the context of a particular civil case, the Court of Appeals noted that the charge in question “does not speak specifically to minority jurors.” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 940 & n.32 (3d Cir. 1990).
Courts have also disapproved of statements telling a deadlocked jury that it must reach a decision or “instruct[ing] a deadlocked jury to consider the burdens and expense to the government of a new trial.” United States v. Brennan, 326 F.3d 176, 193 (3d Cir. 2003) (collecting cases). On the latter point, the Court of Appeals has explained that “a charge is unduly coercive when the trial court not only states that a new trial will result, but goes further and unduly emphasizes the consequences, i.e., time, toil, or expense, that will accompany a failure to arrive at an unanimous verdict.” United States v. Jackson, 443 F.3d 293, 298 (3d Cir. 2006) (rejecting challenge to trial judge’s statement that “the case will have to be retried in front of another jury” and reasoning that “any undue coercion created in this case by the brief mention of a new trial was mitigated by” the trial judge’s emphasis on “the government's burden of proof [and] the jurors' responsibility to consider honestly the evidence” and the trial judge’s directive that jurors should not “surrender [their] beliefs for the sake of expediency”).
(Last Updated October 2017)