4.1 STATEMENTS BY DEFENDANT

You have heard testimony that the defendant made a statement. It is for you to decide (1) whether the defendant made the statement, and (2) if so, how much weight to give to it. In making those decisions, you should consider all the evidence about the statement, including the circumstances under which the defendant may have made it.

Comment

This instruction uses the word "statement" in preference to the more pejorative term, "confession." The word "confession" implies an ultimate conclusion about the significance of a defendant’s statement, which should be left for the jury to determine. The language of this instruction was expressly approved in United States v. Hoac, 990 F.2d 1099, 1108 n.4 (9th Cir.1993).

When voluntariness of a confession is an issue, the instruction is required by 18 U.S.C. § 3501(a), providing that after a trial judge has determined a confession to be admissible, the judge "shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances." See also United States v. Dickerson, 530 U.S. 428, 432 (2000) (holding that Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny govern the admissibility of an accused person’s statement during custodial interrogation and could not be in effect overruled by § 3501). Section 3501(e) defines "confession" as"any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing." See Hoac, 990 F.2d at 1107 (where a defendant raises a genuine issue at trial concerning the voluntariness of a statement, the trial court is obligated by statute to instruct the jury concerning the weight to be accorded that statement). Failure to give the required instruction may constitute plain error. Id. at 1109.

4.2 SILENCE IN THE FACE OF ACCUSATION 

Comment 

A silence in the face of accusation instruction is a permissive inference instruction and, as such, the Committee recommends that it generally not be given. 

If a defendant is in custody, silence in the face of an accusatory statement does not constitute an admission of the truth of the statements. Doyle v. Ohio, 426 U.S. 610, 617-19 (1976). Such evidence should not be received, and no instruction will be necessary. Arnold v. Runnels, 421 F.3d 859, 869 (9th Cir. 2005). 

If a defendant is not in custody, evidence of his refusal to answer an officer’s questions may be admissible as substantive evidence of guilt. Salinas v. Texas, 133 S. Ct. 2174, 2177-78 (2013) (holding that use at trial of petitioner’s silence to suggest "that he was guilty" was constitutional because petitioner did not invoke Fifth Amendment privilege against self-incrimination). 

The Committee includes former Instruction 4.2 for reference, as it recites the factual findings the court must make in order to admit into evidence silence in the face of accusation, and in some circumstances it may be appropriate to give the instruction if the facts warrant it and it is requested by the defendant. The text of the instruction is based on judicial interpretation. See, e.g., United States v. McKinney, 707 F.2d 381, 384 (9th Cir. 1983); United States v. Sears, 663 F.2d 896, 904-05 (9th Cir. 1981); United States v. Giese, 597 F.2d 1170, 1195-96 (9th Cir. 1979). 

Former Instruction 4.2 in the Manual of Model Criminal Jury Instructions For The Ninth Circuit (2003) read as follows: 

Evidence has been introduced that statements accusing the defendant of the crime charged in the indictment were made, and that the statements were neither denied nor objected to by the defendant. If you find that the defendant actually was present and heard and understood the statements, and that they were made under such circumstances that the statements would have been denied if they were not true, then you may consider whether the defendant’s silence was an admission of the truth of the statements. 

Approved 6/2018

4.3 OTHER CRIMES, WRONGS OR ACTS OF DEFENDANT 

You have heard evidence that the defendant committed other [crimes] [wrongs] [acts] not charged here. You may consider this evidence only for its bearing, if any, on the question of the defendant’s [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose. [You may not consider this evidence as evidence of guilt of the crime for which the defendant is now on trial.] 

Comment

See Fed. R. Evid. 404(b). Evidence of other crimes, wrongs or acts may be admissible for one purpose but not another; therefore, this instruction is required by Fed. R. Evid. 105 ("If the court admits evidence that is admissible against a party or for a purpose— but not admissible against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.") 

The Ninth Circuit has approved this instruction. See United States v. Lloyd, 807 F.3d 1128, 1167 (9th Cir. 2015) (rejecting argument that "not charged here" improperly implies other acts that could have been charged); United States v. Hardrick, 766 F.3d 1051, 1056 (9th Cir. 2014). 

See also Instruction 4.6 (Impeachment, Prior Conviction of Defendant) and the Comment thereto, the Comment to Instruction 2.11 (Other Crimes, Wrongs or Acts of Defendant), and Instruction 2.12 (Similar Acts in Sexual Assault and Child Molestation Cases).  

Approved 3/2018

4.4 CHARACTER OF DEFENDANT 

Comment 

The Committee believes that the trial judge need not give an instruction on the character of the defendant when such evidence is admitted under Fed. R. Evid. 404(a)(1) because it adds nothing to the general instructions regarding the consideration and weighing of evidence. See United States v. Karterman, 60 F.3d 576, 579 (9th Cir. 1995) (holding that refusal of trial court to instruct on character of defendant was not plain error when "the district court instructed the jury to ‘consider all of the evidence introduced by all parties,’ to ‘carefully scrutinize all the testimony given,’ and to consider ‘every matter in evidence which tends to show whether a witness is worthy of belief.’"); see also Fed. R. Evid. 404(a)(1). 

Approved 3/2018

4.5 CHARACTER OF VICTIM

You have heard evidence of specific instances of the victim’s character for [specify character trait]. You may consider this evidence in determining whether the victim acted in conformance with that character trait at the time of the offense charged against the defendant in this case. In deciding this case, you should consider the victim’s character evidence together with and in the same manner as all the other evidence in this case.

Comment

Generally, character evidence is inadmissible, but it may be admitted for a particular purpose. See Fed. R. Evid. 404(a)(2), and if sexual conduct of the victim is at issue, see Fed. R. Evid. 412. This instruction is a form of limiting instruction. See Fed. R. Evid. 105. When extrinsic evidence corroborating a defendant’s testimony about a victim’s prior acts of violence is admitted pursuant to Fed. R. Evid. 404(a)(2), this instruction should be modified accordingly. United States v. Saenz, 179 F.3d 686, 687-89 (9th Cir.1999); United States v. James, 169 F.3d 1210, 1214 (9th Cir.1999). See also United States v. Keiser, 57 F.3d 847, 853 (9th Cir.1995) ("The fact that [Fed. R. Evid. 404(a)(2)] is an exception to the rule against introduction of character evidence to imply that a person acted in conformity with that character on a particular occasion suggests that the very purpose of victim character evidence is to suggest to the jury that the victim did indeed act in conformity with his violent character at the time of the alleged crime against him.").

4.6 IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT 

You have heard evidence that the defendant has previously been convicted of a crime. You may consider that evidence only as it may affect the defendant’s believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial. 

Comment 

See Fed. R. Evid. 609 (Impeachment by Evidence of a Criminal). The court must give such a limiting instruction if requested by the defendant. Fed. R. Evid. 105 (Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes). 

If past crimes of the defendant are to be used for another purpose—such as proving an element of a habitual offender charge, or establishing intent—that limited purpose should similarly be identified. See Instruction 4.3 (Other Crimes, Wrongs or Acts of Defendant).　

Approved 3/2018

4.7 CHARACTER OF WITNESS FOR TRUTHFULNESS 

Comment 

The Committee believes that the trial judge need not give an instruction on the character of a witness for truthfulness because it adds nothing to the general instructions on witness credibility. As to these instructions, see Instructions 1.7 and 3.9 (Credibility of Witnesses). 

Character and reputation are not two separate types of evidence. Reputation is one means of proving character. Opinion evidence is another. Regarding admissibility of character evidence, see Fed. R. Evid. 607 (Who May Impeach a Witness), 608 (A Witness’s Character for Trughtfulness or Untruthfulness) and 609 (Impeachment by Evidence of a Criminal Conviction).  

Approved 3/2018

4.8 IMPEACHMENT EVIDENCE—WITNESS

You have heard evidence that [name of witness], a witness, [specify basis for impeachment]. You may consider this evidence in deciding whether or not to believe this witness and how much weight to give to the testimony of this witness. 

Comment 

Fed. R. Evid. 608 (A Witness’s Character for Truthfulness or Untruthfulness) and 609 (Impeachment By Evidence of a Criminal Conviction) place restrictions on the use of instances of past conduct and convictions to impeach a witness, and Fed. R. Evid. 105 (Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes) gives a defendant the right to request a limiting instruction explaining that the use of this evidence is limited to credibility of the witness.

Approved 3/2018

4.9 TESTIMONY OF WITNESSES INVOLVING SPECIAL CIRCUMSTANCES—
IMMUNITY, BENEFITS, ACCOMPLICE, PLEA

 You have heard testimony from [name of witness], a witness who 

[received immunity. That testimony was given in exchange for a promise by the government that [the witness will not be prosecuted] [the testimony will not be used in any case against the witness]];

[received [benefits] [compensation] [favored treatment] from the government in connection with this case];

[[admitted being] [was alleged to be] an accomplice to the crime charged. An accomplice is one who voluntarily and intentionally joins with another person in committing a crime];

[pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining this witness’s believability]. 

For [this] [these] reason[s], in evaluating the testimony of [name of witness], you should consider the extent to which or whether [his] [her] testimony may have been influenced by [this] [any of these] factor[s]. In addition, you should examine the testimony of [name of witness] with greater caution than that of other witnesses. 

Comment

The instruction to consider accomplice testimony with "greater caution" is appropriate regardless of whether the accomplice’s testimony favors the defense or prosecution. United States v. Tirouda, 394 F.3d 683, 687-88 (9th Cir. 2005). The Committee recommends giving this instruction whenever it is requested. 

4.10 GOVERNMENT’S USE OF UNDERCOVER AGENTS AND INFORMANTS 

You have heard testimony from [an undercover agent] [an informant] who was involved in the government’s investigation in this case. Law enforcement officials may engage in stealth and deception, such as the use of informants and undercover agents, in order to investigate criminal activities. Undercover agents and informants may use false names and appearances and assume the roles of members in criminal organizations. 

Comment 

This instruction should be given when the entrapment defense is being asserted. Furthermore, the Ninth Circuit held it was not plain error to give this instruction in the absence of an entrapment defense instruction when the defendant contended the government agent acted improperly. United States v. Hoyt, 879 F.2d 505, 510 (9th Cir. 1989), amended on other grounds, 888 F.2d 1257 (1989).　 

Approved 3/2018

4.11 EYEWITNESS IDENTIFICATION

You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may consider the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also consider:

(1) the capacity and opportunity of the eyewitness to observe the suspect based upon the length of time for observation and the conditions at the time of observation, including lighting and distance;

(2) whether the identification was the product of the eyewitness’s own recollection or was the result of subsequent influence or suggestiveness;

(3) any inconsistent identifications made by the eyewitness;

(4) the witness’s familiarity with the subject identified;

(5) the strength of earlier and later identifications;

(6) lapses of time between the event and the identification[s]; and

(7) the totality of circumstances surrounding the eyewitness’s identification.

Comment

It is within the trial court’s sound discretion to instruct a jury both on eyewitness identification and general witness credibility. The need for heightened jury instructions should correlate with the amount of corroborative evidence. See United States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976).

The Ninth Circuit has approved the giving of a comprehensive eyewitness jury instruction, at least when the district court has determined that proffered expert witness testimony regarding eyewitness identification should be excluded. See, e.g., United States v. Hicks,103 F.3d 837, 847 (9th Cir. 1996), overruled on other grounds, United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008).　

Approved 6/2019

4.12 CHILD WITNESS 

Comment 

The Committee recommends that the trial judge give no instruction on the credibility of a child witness because it adds nothing to the general instructions on witness credibility. As to these instructions, see Instructions 1.7 (Credibility of Witnesses) and 3.9 (Credibility of Witnesses). 

In People of Territory of Guam v. McGravey, 14 F.3d 1344, 1348 (9th Cir. 1994), the Ninth Circuit stated that "the better view is . . . that a ‘trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and if so, the nature of that instruction.’"(citation omitted). See also United States v. Pacheco, 154 F.3d 1236, 1239 (10th Cir. 1998) (holding that the general witness credibility instruction provided the jury with adequate guidance in evaluating child’s testimony).

4.13 DEPORTED MATERIAL WITNESS 

The government has failed to produce a witness whose testimony would have been material to an issue in this case. You are allowed to infer that the testimony would have been favorable to the defendant. 

Comment 

The Committee cautions that a missing witness instruction will be appropriate only in limited circumstances, such as when the government deports an alien witness knowing that the witness would testify favorably for the defense. See United States v. Leal-Del Carmen, 697 F.3d 964, 975 (9th Cir. 2013) (holding in such circumstances that "[t]he district court abused its discretion by failing to give the missing-witness instruction") [14]. "A missing witness instruction is appropriate if two requirements are met: (1) [t]he party seeking the instruction must show that the witness is peculiarly within the power of the other party and (2) under the circumstances, an inference of unfavorable testimony [against the non-moving party] from an absent witness is a natural and reasonable one." Id. at 974. 

"A missing witness instruction is proper only if from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one." United States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982) (noting that absent any inference of unfavorable testimony, trial court would have erred by giving missing witness instruction; defense counsel interviewed witness and "indicated that she did not wish to have him stay around"). 

Even when a missing witness instruction is not given, a judge may not forbid a jury from drawing a negative inference from a party’s failure to call a witness. United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir. 2013) ("By instructing the jurors to disregard any uncertainty about why the prosecution didn’t call a witness—who might have been the key witness—the court improperly inserted itself into the jury room and interfered with the jury’s role as a factfinder.").

Approved 6/2018

4.14 OPINION EVIDENCE, EXPERT WITNESS

You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] to opinions and the reasons for [his] [her] opinions. This opinion testimony is allowed because of the education or experience of this witness.

Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.

Comment

See Fed. R. Evid. 701-05. See also United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) ("a district court abuses its discretion when it either abdicates its role as gatekeeper by failing to assess the scientific validity or methodology of an expert’s proposed testimony, or delegates that role to the jury by admitting the expert testimony without first finding it to be relevant and reliable") (internal quotations and brackets omitted); United States v. Mendoza, 244 F.3d 1037, 1048 (9th Cir. 2001) (holding that instruction should be given when requested by the defendant).

This instruction avoids labeling the witness as an "expert." If the court refrains from informing the jury that the witness is an "expert," this will "ensure[] that trial courts do not inadvertently put their stamp of authority" on a witness’s opinion and will protect against the jury’s being "overwhelmed by the so-called ‘experts.’" See Fed. R. Evid. 702 advisory committee’s note (2000) (quoting 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).

In addition, Fed. R. Evid. 703 provides that facts or data that are the basis for an expert’s opinion but are otherwise inadmissible may nonetheless be disclosed to the jury if the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. Even in the absence of a request, it may be plain error for the trial court to fail to give an instruction sufficient to explain to the jury that the otherwise inadmissible evidence should not be considered for its truth but only to assess the strength of the expert’s opinions. See United States v. Torralba-Mendia, 784 F.3d 652, 659 (9th Cir. 2015); United States v. Vera, 770 F.3d 1232 (9th Cir. 2014).

Further, the "interpretation of clear statements is not permissible, and is barred by the helpfulness requirement of both Fed. R. Evid. 701 and Fed. R. Evid. 702." Vera, 770 F.3d at 1246 (emphasis in original) (quotation marks and citation omitted).

This instruction also may be given as a limiting instruction at the time testimony is received.

Approved 6/2019

4.15 DUAL ROLE TESTIMONY  

You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] to both facts and opinions and the reasons for [his] [her] opinions. 

Fact testimony is based on what the witness saw, heard or did. Opinion testimony is based on the education or experience of the witness. 

As to the testimony about facts, it is your job to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. [Take into account the factors discussed earlier in these instructions that were provided to assist you in weighing the credibility of witnesses.] 

As to the testimony about the witness's opinions, this opinion testimony is allowed because of the education or experience of this witness. Opinion testimony should be judged like any other testimony. You may accept all of it, part of it, or none of it. You should give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case. 

Comment 

If a witness testifies to both facts and opinions, a cautionary instruction on the dual role of such a witness must be given. This situation can arise, for example, when a law enforcement witness testifies as both a fact witness and as an opinion witness. See United States v. Torralba-Mendia, 784 F.3d 652, 659 (9th Cir. 2015); United States v. Vera, 770 F.3d 1232, 1246 (9th Cir. 2014). In a criminal case, omitting such a cautionary or curative instruction is plain error, even if no party requests such an instruction or affirmatively opposes it. See Vera, 770 F.3d 1232 at 1246 (holding that court’s failure to instruct jury on how to evaluate agent’s dual role testimony prejudiced defendant when agent testified as both expert witness and lay, or fact, witness); see also Torralba-Mendia, 784 F.3d at 659 (noting holding in Vera and finding error in district court’s omission of dual role instruction differentiating between lay and expert testimony). Indeed, in Torralba-Mendia, the government proposed such an instruction, the defendant objected, and the court declined to give the instruction; the Ninth Circuit found plain error. Id. 

The court might also consider bifurcating a witness’s testimony, separating a witness’s percipient, or factual, testimony from the witness’s expert opinions. See United States v. Anchrum, 590 F.3d 795, 803-04 (9th Cir. 2009) (holding that district court "avoided blurring the distinction between [the case agent’s] distinct role as a lay witness and his role as an expert witness" when it "clearly separated [the agent’s] testimony into a first ‘phase’ consisting of his percipient observations, and a second ‘phase’ consisting of his credentials in the field of drug trafficking and expert testimony regarding the modus operandi of drug traffickers"). 

In addition, if an opinion witness is allowed to present otherwise inadmissible evidence under Fed. R. Evid. 703, an additional instruction may be needed. See Comment to Instruction 4.14. Also, when an opinion witness presents both expert opinion testimony and lay opinion testimony, as happened in Vera, further instructions may be needed.　 

Approved 3/2018

4.16 CHARTS AND SUMMARIES NOT ADMITTED INTO EVIDENCE 

During the trial, certain charts and summaries were shown to you in order to help explain the evidence in the case. These charts and summaries were not admitted into evidence and will not go into the jury room with you. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence. 

Comment 

This instruction applies only when the charts and summaries are not admitted into evidence and are used for demonstrative purposes. See United States v. Krasn, 614 F.2d 1229, 1238 (9th Cir. 1980). If the charts and summaries are admitted in evidence, it may be appropriate to instruct the jury using Instruction 4.17 (Charts and Summaries Admitted into Evidence). See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013).  

Approved 3/2018

4.17 CHARTS AND SUMMARIES ADMITTED INTO EVIDENCE 

Certain charts and summaries have been admitted into evidence. Charts and summaries are only as good as the underlying supporting material. You should, therefore, give them only such weight as you think the underlying material deserves. 

Comment 

See Fed. R. Evid. 1006 (Summaries to Prove Content). 

Use this instruction when charts and summaries are admitted into evidence. If charts and summaries are not admitted into evidence, use Instruction 4.16 (Charts and Summaries Not Admitted into Evidence). 

This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.

Approved 3/2018

4.18 FLIGHT/CONCEALMENT OF IDENTITY 

Comment 

The Committee generally recommends against giving specific inference instructions in areas such as flight or concealment of identity because the general instruction on direct and circumstantial evidence is sufficient (see Introductory Comment to this chapter). Also, caution is warranted because evidence of flight can be consistent with innocence. United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000). Where sufficient facts support such an inference, the Ninth Circuit has not foreclosed the use of such an instruction. See United States v. Blanco,392 F.3d 382, 395-97 (9th Cir. 2004) (flight); United States v. Silverman, 861 F.2d 571, 580-82 (9th Cir. 1988) (concealment of identity).　

Approved 3/2018

4.19 LOST OR DESTROYED EVIDENCE 

If you find that the government intentionally [destroyed][failed to preserve] [insert description of evidence] that the government knew or should have known would be evidence in this case, you may infer, but are not required to infer, that this evidence was unfavorable to the government. 

Comment 

An instruction concerning evidence lost or destroyed by the government is appropriate when the balance "between the quality of the Government’s conduct and the degree of prejudice to the accused" weighs in favor of the defendant. United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979) (en banc) (Kennedy, J., concurring), overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008); see United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013). The government bears the burden of justifying its conduct, and the defendant bears the burden of demonstrating prejudice. Id. In evaluating the government’s conduct, a court should consider whether the evidence was lost or destroyed while in the government’s custody, whether it acted in disregard of the defendant’s interests, whether it was negligent, whether the prosecuting attorneys were involved, and, if the acts were deliberate, whether they were taken in good faith or with reasonable justification. Id. (citing Loud Hawk, 628 F.2d at 1152). Factors relevant to prejudice to the defendant include the centrality and importance of the evidence to the case, the probative value and reliability of secondary or substitute evidence, the nature and probable weight of the factual inferences and kinds of proof lost to the accused, and the probable effect on the jury from the absence of the evidence. Id. at 1173-74 (citing Loud Hawk, 628 F.2d at 1152). While a showing of bad faith on the part of the government is required to warrant the dismissal of a case based on lost or destroyed evidence, it is not required for a remedial jury instruction. Id. at 1170.

Approved 3/2018

4.20 UNTIMELY DISCLOSURE OF EXCULPATORY
OR IMPEACHMENT EVIDENCE

A trial court has discretion in shaping the remedies for violations of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). For example, in United States v. Garrison, 888 F.3d 1057, 1061 (9th Cir. 2018), "the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense." Rather than dismiss the case, the district court instructed the jury that "the government's failure to timely comply with its constitutional obligations . . . could lead the jury to find reasonable doubt" as to guilt. The Ninth Circuit held that there was no error. Id. at 1066.　　

Approved 4/2019