Jurors:  You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions.  At the end of the trial I will give you more detailed [written] instructions that will control your deliberations.  

            When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts.  To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not.  You must decide the case solely on the evidence and the law before you.  

            Perform these duties fairly and impartially.  You should not be influenced by any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances.  Also, do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases[.] [, including unconscious biases.  Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention.  Like conscious bias, unconscious bias can affect how we evaluate information and make decisions.] 

Comment 

            See generally Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures§ 3.3 (2013).

             The Supreme Court emphasized the importance of jury instructions as a bulwark against bias in Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017).  Accordingly, the Committee has incorporated stronger language regarding the jury’s duty to act fairly and impartially into this instruction, Instruction 1.7 (Credibility of Witnesses), Instruction 6.1 (Duties of Jury to Find Facts and Follow Law), and Instruction 6.19 (Duty to Deliberate).

             The United States District Court for the Western District of Washington has prepared a ten-minute video about unconscious bias that can be shown to jurors .  See www.wawd.uscourts.gov/jury/unconscious-bias [1].  In addition, the United States District Court for the Northern District of California has prepared a shortened version of that video to show to potential jurors before jury selection.  See www.cand.uscourts.gov/attorneys/unconscious-bias-video-for-potential-jurors [2].

             The second paragraph of this instruction informs the jury that it is the duty of the jury to apply the law as the judge gives it to them, whether they agree with it or not.  This type of caution against jury nullification is permissible.  United States v. Lynch, 903 F.3d 1061, 1079 (9th Cir. 2018).  “[N]ullifcation is, by definition, a violation of the juror’s oath to apply the law as instructed by the court.”  Id. (quoting United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997)).  “While jurors have the power to nullify a verdict, they have no right to do so.”  Lynch, 903 F.3d at 1080 (quoting Merced v. McGrath, 426 F.3d 1076, 1079 (9th Cir. 2005)).  An anti-nullification instruction will be improper if it states or implies that nullification would place jurors at risk of legal sanction or otherwise be invalid.  Lynch, 903 F.3d at 1080 (holding that district court’s admonition that nullification was violation of jury’s duty to follow law did not deprive jurors of ability to nullify); United States v. Kleinman, 880 F.3d 1020, 1031-32 (9th Cir. 2017) (holding instruction erroneous but harmless that told jury “[t]here is no such thing as a valid jury nullification” and that “[y]ou would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case”). 

Revised March 2024

          This is a criminal case brought by the United States government.  The government charges the defendant with [specify crime[s] charged].  The charge[s] against the defendant [is] [are] contained in the indictment.  The indictment simply describes the charge[s] the government brings against the defendant.  The indictment is not evidence and does not prove anything. 

          The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until the government proves the defendant guilty beyond a reasonable doubt.  In addition, the defendant has the right to remain silent and never has to prove innocence or present any evidence.

          [To help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] that the government must prove to make its case: [supply brief statement of elements of crime[s]].] 

Comment

          “Although the Constitution does not requirejury instructions to contain any specific language, the instructions must convey both that a defendant is presumed innocent until proven guilty and that he may only be convicted upon a showing of proof beyond a reasonable doubt.”  Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir. 2004), overruled on other grounds, Byrd v. Lewis 566 F.3d 855 (9th Cir. 2009) (citation omitted).  “Any jury instruction that reduces the level of proof necessary for the government to carry its burden is plainly inconsistent with the constitutionally rooted presumption of innocence.”  Id.  The words “unless and until” adequately inform the jury of the presumption of innocence.  United States v. Lopez, 500 F.3d 840, 847 (9th Cir. 2007). 

          The second paragraph of this instruction assumes that no affirmative defense has been raised.  When a defendant presents an affirmative defense on which the defendant has the burden of proof, the following paragraph may be substituted: 

          The government has the burden of proving every element of the crime[s] charged beyond a reasonable doubt.  This burden of proof stays with the government throughout the case.  [The; a] defendant is never required to prove [his] [her] innocence.  [He] [She] is not required to produce any evidence at all.  In this case, the defendant has raised the affirmative defense of [identify defense, e.g., duress, insanity].  Thus, the defendant has the burden of proving that affirmative defense by [a preponderance of the evidence] [clear and convincing evidence].

            The evidence you are to consider in deciding what the facts are consists of:

First, the sworn testimony of any witness; [and]

Second, the exhibits that are received in evidence[.] [; and]

[Third, any facts to which the parties agree.]

Comment

            “When parties have entered into stipulations as to material facts, those facts will be deemed to have been conclusively established.”  United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976) (citation omitted).

Revised Sept. 2019

            The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:

First, statements and arguments of the attorneys;

Second, questions and objections of the attorneys;

Third, testimony that I instruct you to disregard; and

Fourth, anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

Comment

            It is advisable to instruct the jury generally about what is not evidence, both as a preliminary instruction at the beginning of the case and as a final instruction at the close of the case.  See Instruction 1.6 (Ruling on Objections); Instruction 2.12 (Evidence for Limited Purpose); Instruction 6.7 (What Is Not Evidence). 

            But these general instructions are unlikely to be sufficient when a prompt and specific curative instruction from the court is needed.  See generally United States v. Barragan, 871 F.3d 689 (9th Cir. 2017) (“A curative instruction can neutralize the harm of a prosecutor’s improper statements if it is given ‘immediately after the damage [is] done’ and mentions ‘the specific statements.’”) (brackets and internal quotation marks in original); Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.16 (2013).  Thus, a curative instruction should be given immediately after the damage is done and refer to the specific statement or statements that the jury must disregard.  See also United States v. Wells, 879 F.3d 900, 936-37 (9th Cir. 2018) (“Generally, when evidence is heard by the jury that is subsequently ruled inadmissible, or is applicable only to limited defendants or in a limited manner, a cautionary instruction from the judge is sufficient to cure any prejudice to the defendant . . . . [O]ur court assumes that the jury listened to and followed the trial judge’s instruction”) (brackets in original; internal quotation marks and citation omitted). 

Revised Sept. 2019

            Evidence may be direct or circumstantial.  Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did.  Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact.

            You are to consider both direct and circumstantial evidence.  Either can be used to prove any fact.  The law makes no distinction between the weight to be given to either direct or circumstantial evidence.  It is for you to decide how much weight to give to any evidence. 

Comment

            “It is the exclusive function of the jury to weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts . . .. Circumstantial and testimonial evidence are indistinguishable insofar as the jury fact-finding function is concerned, and circumstantial evidence can be used to prove any fact.”  United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977) (quoting United States v. Nelson, 419 F.2d 1237, 1239-41 (9th Cir. 1969)).  See also United States v. Kelly, 527 F.2d 961, 965 (9th Cir. 1976); and Payne v. Borg, 982 F.2d 335, 339 (9th Cir. 1992) (citing United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990)).

            The Committee believes that an instruction on circumstantial evidence generally eliminates the need to explain the same principle in terms of inferences, and that matters such as flight, resistance to arrest, etc., are generally better left to argument of counsel as examples of circumstantial evidence from which the jury may find another fact.  See United States v. Beltran–Garcia, 179 F.3d 1200, 1206 (9th Cir. 1999) (in discussing jury instruction regarding inferring intent to possess for distribution from quantity of drugs, the Ninth Circuit stated that “[a]lthough the instructions in this case were not delivered in error, we do not hesitate to point out the ‘dangers and inutility of permissive inference instructions.’” (citations omitted).  See also United States v. Rubio–Villareal, 967 F.2d 294, 300 (9th Cir. 1992) (en banc) (disapproved instructing jury that knowledge of presence of drugs in vehicle may be inferred from defendant being driver).

            It may be helpful to include an illustrative example in the instruction:

            By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night.  However, other evidence, such as a turned-on garden hose, may provide an explanation for the water on the sidewalk.  Therefore, before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense. 

Revised Sept. 2019

           There are rules of evidence that control what can be received in evidence.  When a lawyer asks a question or offers an exhibit in evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object.  If I overrule the objection, the question may be answered or the exhibit received.  If I sustain the objection, the question cannot be answered, or the exhibit cannot be received.  Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer would have been.

            Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence.  That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

            In deciding the facts in this case, you may have 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.

            In considering the testimony of any witness, you may take into account:

First, the witness’s opportunity and ability to see or hear or know the things testified to;

Second, the witness’s memory;

Third, the witness’s manner while testifying;

Fourth, the witness’s interest in the outcome of the case, if any;

Fifth, the witness’s bias or prejudice, if any;

Sixth, whether other evidence contradicted the witness’s testimony;

Seventh, the reasonableness of the witness’s testimony in light of all the evidence; and

Eighth, any other factors that bear on believability.

           Sometimes a witness may say something that is not consistent with something else he or she said.  Sometimes different witnesses will give different versions of what happened.  People often forget things or make mistakes in what they remember.  Also, two people may see the same event but remember it differently.  You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

           However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.  On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.

           You must avoid bias[, conscious or unconscious,] based on a witness’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances in your determination of credibility.

            The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.  What is important is how believable the witnesses are, and how much weight you think their testimony deserves.

Comment

            The Committee recommends that the jurors be given some guidelines for determining credibility at the beginning of the trial so that they will know what to look for when witnesses are testifying.

            See also Instruction 6.9 (Credibility of Witnesses) for the corresponding instruction to be given at the end of the case. 

Revised March 2024

            I will now say a few words about your conduct as jurors.

            First, keep an open mind throughout the trial, and do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case. 

            Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty.  Thus, until the end of the case or unless I tell you otherwise:

            Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it.  This restriction includes discussing the case in person, in writing, by phone, tablet, or computer, or any other means, via email, via text messaging, or any Internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat, TikTok, or any other forms of social media.  This restriction also applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, the media or press, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case, and how long you expect the trial to last.  But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter.  In addition, you must report the contact to the court. 

            Because you will receive all the evidence and legal instruction you properly may consider to return a verdict:  do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it[, although I have no information that there will be news reports about this case]; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.  Do not visit or view any place discussed in this case, and do not use the Internet or any other resource to search for or view any place discussed during the trial.  Also, do not do any research about this case, the law, or the people involved—including the parties, the witnesses or the lawyers—until you have been excused as jurors.  If you happen to read or hear anything touching on this case in the media, turn away and report it to me as soon as possible. 

           These rules protect each party’s right to have this case decided only on evidence that has been presented here in court.  Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process.  If you do any research or investigation outside the courtroom, or gain any information through improper communications, then your verdict may be influenced by inaccurate, incomplete, or misleading information that has not been tested by the trial process.  Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial.  Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules.

            A juror who violates these restrictions jeopardizes the fairness of these proceedings [, and a mistrial could result that would require the entire trial process to start over].  If any juror is exposed to any outside information, please notify the court immediately.

Comment

            This instruction has been updated specifically to instruct jurors against accessing electronic sources of information and communicating electronically about the case, as well as to inform jurors of the potential consequences if a juror violates this instruction.  An abbreviated instruction should be repeated before the first recess, and as needed before other recesses.  See Instruction 2.1 (Cautionary Instruction—First Recess).  The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread.  See, e.g., United States v. Pino-Noriega, 189 F.3d 1089, 1096 (9th Cir. 1999). 

Revised Dec. 2020 

            At the end of the trial, you will have to make your decision based on what you recall of the evidence.  You will not have a written transcript of the trial.  I urge you to pay close attention to the testimony as it is given.

Comment

            For further discussion, see Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.1.C (2013). 

Revised Sept. 2019

           If you wish, you may take notes to help you remember the evidence.  If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case.  Do not let note-taking distract you from being attentive.  When you leave court for recesses, your notes should be left in the [courtroom] [jury room] [envelope in the jury room].  No one will read your notes.

            Whether or not you take notes, you should rely on your own memory of the evidence.  Notes are only to assist your memory.  You should not be overly influenced by your notes or those of your fellow jurors.

Comment

            It is well settled in this circuit that the trial judge has discretion to allow jurors to take notes.  United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 1993).  See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.4 (2013).

1.11 Outline of Trial  

            The next phase of the trial will now begin.  First, each side may make an opening statement.  An opening statement is not evidence.  It is simply an outline to help you understand what that party expects the evidence will show.  A party is not required to make an opening statement.

            The government will then present evidence and counsel for the defendant may cross-examine.  Then, if the defendant chooses to offer evidence, counsel for the government may cross-examine.

            After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing arguments and I will instruct you on the law that applies to the case].

            After that, you will go to the jury room to deliberate on your verdict.

           [A language] [Languages] other than English will be used for some evidence during this trial.  [When a witness testifies in another language, the witness will do so through an official court interpreter.]  [When recorded evidence is presented in another language, there will be an official court translation of the recording.] 

            The evidence you are to consider and on which you must base your decision is only the English-language [interpretation] [translation] provided through the official court [interpreters] [translators].  Although some of you may know the non-English language used, you must disregard any meaning of the non-English words that differs from the official [interpretation] [translation].

            [You must not make any assumptions about a witness or a party based solely upon the use of an interpreter to assist that witness or party.]

Comment

            When “a district court is faced with a jury that includes one or more bilingual jurors and the taped conversations are in a language other than English, restrictions on the jurors who are conversant with the foreign tongue is not only appropriate, it may in fact be essential.  Where the translation of a portion of the tape is disputed, both sides have an interest in what information is given to the jury.  The rules of evidence and the expert testimony would prove of little use if a self-styled expert in the deliberations were free to give his or her opinion on this crucial issue, unknown to the parties.”  United States v. Fuentes-Montijo, 68 F.3d 352, 355 (9th Cir. 1995).  See also United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998).  As to the qualification and designation of interpreters in federal courts, see 28 U.S.C. § 1827. 

            See Instructions 2.7 (Transcript of Recording in Foreign Language) and 2.9 (Foreign Language Testimony) concerning foreign language transcripts and testimony to be given during trial, and Instruction 6.17 (Foreign Language Testimony) to be given at the end of the case. 

Revised Mar. 2018 

1.13 Separate Consideration for Each Defendant 

            Although the defendants are being tried together, you must give separate consideration to each defendant.  In doing so, you must determine which evidence in the case applies to each defendant, disregarding any evidence admitted solely against some other defendant[s].  The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant[s].

Comment

            See Instructions 6.12 (Separate Consideration of Single Count—Multiple Defendants) and 6.13 (Separate Consideration of Multiple Counts—Multiple Defendants) for use at the end of the case. 

Option 1

            Only the lawyers and I are allowed to ask questions of witnesses.  A juror is not permitted to ask questions of witnesses.  [Specific reasons for not allowing jurors to ask questions may be explained.]  If, however, you are unable to hear a witness or a lawyer, please raise your hand and I will correct the situation.

Option 2

            When attorneys have finished their examination of a witness, you may ask questions of the witness.  [Describe procedure to be used.]  If the rules of evidence do not permit a particular question, I will advise you.  After your questions, if any, the attorneys may ask additional questions.

Comment

            There may be occasions when a juror desires to ask a question of a witness, and the court has discretion in permitting or refusing to permit jurors to do so.  See United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994) (“Huebner does not point out prejudice resulting from any of the few questions [jurors] asked.  There was no error or abuse of discretion.”); United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir. 1970) (holding there was no error by trial judge in allowing juror to submit question to court); Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.5 (2013) (providing practical suggestions).

            Option 1 is for judges who want to disallow jury questions explicitly.  Option 2 is for judges who want to tell jurors that they may submit questions to be asked of witnesses. 

Revised Sept. 2019

           [Name of defendant]  has decided to represent [himself] [herself] in this trial and not to use the services of a lawyer.  [He] [She] has a constitutional right to do that.  [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must not affect your consideration of the case.

            Because [name of defendant] has decided to act as [his] [her] own lawyer, you will hear [him] [her] speak at various times during the trial.  [He] [She] may make an opening statement and closing argument and may ask questions of witnesses, make objections, and argue legal issues to the court.  I want to remind you that when [name of defendant] speaks in these parts of the trial, [he] [she] is acting as a lawyer in the case, and [his] [her] words are not evidence.  The only evidence in this case comes from witnesses who testify under oath on the witness stand and from exhibits that are admitted.

Comment

            A defendant has a constitutional right to waive his or her Sixth Amendment right to assistance of counsel and proceed pro se.  Faretta v. California, 422 U.S. 806 (1975).  This instruction informs the jury of the defendant’s choice to proceed pro se and directs the jury to treat the words spoken by the defendant while functioning as counsel like those of any other lawyer and not to treat them as evidence in the case.  This Instruction is modeled on the Third Circuit’s Criminal Jury Instruction § 1.18, which is similar to the Eighth Circuit’s Criminal Jury Instruction § 2.23.  The Eighth Circuit’s model also includes the following paragraph that may be added when the court has appointed standby counsel:

Although [name of defendant] has chosen to represent [himself] [herself], the court has appointed [name of standby counsel] to assist [name of defendant] as standby counsel.  This is a standard procedure.  [Name of standby counsel] may [confer with [name of defendant]] [,] [make an opening statement] [,] [question witnesses] [,] [make objections] [and] [or] [argue legal issues to the court].  Just as when [name of defendant] speaks in [this part] [these parts] of the trial, when [name of standby counsel] speaks in [this part] [these parts] of the trial, [his] [her] words are not evidence.]

Eighth Circuit, Criminal Jury Instruction § 2.23 (formatting modified). 

Revised Sept. 2019

            During the trial, I may need to take up legal matters with the attorneys privately, 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.

            Of course, we will 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 what your verdict should be.

Comment

            Conducting bench conferences is within the discretion of the court.  Regarding the defendant’s right to be present at bench conferences, see Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 1.6 (2013).  

Revised Sept. 2019