Model Jury - Section 2
2. INSTRUCTIONS DURING TRIAL
2.01 CAUTIONARY INSTRUCTION--FIRST RECESS
We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors.
If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me.
I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.
See Instruction 1.08 for preliminary instruction.
2.02 BENCH CONFERENCES AND RECESSES
From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error.
We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.
2.03 STIPULATED TESTIMONY
The parties have agreed what __________________'s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court.
There is a difference between stipulating that a witness would give certain testimony and stipulating that the facts to which a witness might testify are true. United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir. 1977).
2.04 STIPULATIONS OF FACT
The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.
When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976).
2.05 JUDICIAL NOTICE
The court has decided to accept as proved the fact that [e.g., the city of San Francisco is north of the city of Los Angeles], even though no evidence has been introduced on the subject. You may, but are not required to, accept this fact as true.
An instruction regarding judicial notice should be given at the time notice is taken. Fed. R. Evid. 201(g), while it permits the judge to determine that a fact is sufficiently undisputed to be judicially noticed, also requires that the jury be instructed that it is not required to accept that fact. Failure to so instruct does not, however, rise to the level of plain error. United States v. Berrojo, 628 F.2d 368, 370 (5th Cir. 1980); United States v. Piggie, 622 F.2d 486, 488 (10th Cir.), cert. denied, 449 U.S. 863 (1980).
2.06 DEPOSITION AS SUBSTANTIVE EVIDENCE
When a person is unavailable to testify at trial, the deposition of that person may be used at the trial. A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded.
The deposition of __________, which was taken on __________, 19____, is about to be presented to you. 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.]
This instruction should be used only when testimony by deposition is offered as substantive evidence. The committee recommends that it be given immediately before a deposition is to be read. It need not be repeated if more than one deposition is read. If the judge prefers to include the instruction as a part of his or her instructions before evidence, it should be modified appropriately.
2.07 TRANSCRIPT OF TAPE RECORDING
You are about to listen to a tape recording that has been received in evidence. Please listen to it very carefully. Each of you has been given a transcript of the recording to help you identify speakers and as a guide to help you listen to the tape. However, bear in mind that the tape recording is the evidence, not the transcript. If you hear something different from what appears in the transcript, what you heard is controlling. After the tape has been played, the transcript will be taken from you.
See United States v. Phillips, 577 F.2d 495, 501 (9th Cir.), cert. denied, 439 U.S. 831 (1978).
The committee recommends that this instruction be given immediately before a tape recording is played so that the jury is alerted to the fact that what they hear is controlling. It need not be repeated if more than one tape recording is played. However, it would be well to remind the jury that the tape recording and not the transcript is the evidence and that they should disregard anything in the transcript that they do not hear. If the instruction is also to be given as part of the closing instructions, it should be modified appropriately.
2.08 LIMITED PURPOSE EVIDENCE
The evidence [of ] [you are about to hear] [you have just heard] may be considered only for the limited purpose of and for no other purpose.
If this instruction is given during the trial, the committee recommends giving the bracketed material in paragraph 3 of Instruction 3.05 with the concluding instructions. See also Instructions 1.04 and 2.09.
2.09 IMPEACHMENT BY CONVICTION OF CRIME
The evidence that a witness has been convicted of a crime may be considered only as it may affect the believability of that witness and for no other purpose.
If this instruction is given during the trial, the committee recommends giving the bracketed material in paragraph 3 of Instruction 3.05 with the concluding instructions. See also Instructions 1.04 and 2.08.
2.10 TESTS AND EXPERIMENTS
Arrangements have been made to conduct a test or experiment.
Observe the conditions under which that test or experiment is made. These conditions may or may not duplicate the conditions and other circumstances that existed at the time and place of the incident involved in this case.
It is for you to decide what weight, if any, you give to the test or experiment.
2.11 USE OF INTERROGATORIES OF A PARTY
Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand.
Use this oral instruction before interrogatories and answers are read to the jury. The attorney should warn the judge ahead of time and give the judge an opportunity to give this oral instruction. This oral instruction is not appropriate if answers to interrogatories are being used for impeachment only.
Do not use this instruction for requests for admission under Fed. R. Civ. P. 36. The effect of requests for admission under the rule is not the same as the introduction of evidence through interrogatories. If an instruction is needed, a special one will have to be drafted.