As I indicated before this trial started, you as jurors will decide this case based solely on the evidence presented in this courtroom.  This means that after you leave here for the night, you must not conduct any independent research about this case, the matters in the case, the legal issues in the case, or the individuals or other entities involved in the case.  This is important for the same reasons that jurors have long been instructed to limit their exposure to traditional forms of media information such as television and newspapers.  You also must not communicate with anyone, in any way, about this case.  And you must ignore any information about the case that you might see while browsing the Internet or your social media feeds.

At the Beginning of Each Day of the Case:

            As I reminded you yesterday and continue to emphasize to you today, it is important that you decide this case based solely on the evidence and the law presented here.  So you must not learn any additional information about the case from sources outside the courtroom.  To ensure fairness to all parties in this trial, I will now ask each of you whether you have learned about or shared any information about this case outside of this courtroom, even if it was accidental.

[ALTERNATIVE 1 (in open court): if you think that you might have done so, please let me know now by raising your hand. [Wait for a show of hands].  I see no raised hands; however, if you would prefer to talk to the court privately in response to this question, please notify a member of the court’s staff at the next break.  Thank you for your careful adherence to my instructions.]

[ALTERNATIVE 2 (during voir dire with each juror, individually): Have you learned about or shared any information about this case outside of this courtroom? . . . Thank you for your careful adherence to my instructions.]

Comment

            This instruction is derived from the model instruction prepared by the Judicial Conference Committee on Court Administration and Case Management in June 2020.

            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

            The parties have agreed what [name of witness]’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.

Comment

            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. Lambert, 604 F.2d 594, 595 (8th Cir. 1979) (per curiam); United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir. 1977) (per curiam).  On the latter, see Instruction 2.3(Stipulations of Fact).

Revised Sept. 2019

            The parties have agreed to certain facts that have been stated to you.  Those facts are now conclusively established.

Comment

            “[W]hen a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant’s acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agrees to it through his or her attorney.  Unless a criminal defendant indicates objection at the time the stipulation is made, he or she is ordinarily bound by such stipulation.”  United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980).  In any event, a trial judge need not make as probing an inquiry as is required by Fed. R. Crim. P. 11 when considering whether a defendant’s factual stipulation is knowing and voluntary.  United States v. Miller, 588 F.2d 1256, 1263-64 (9th Cir. 1978). 

            See Old Chief v. United States, 519 U.S. 172, 186 (1997) (discussing acceptance of stipulation regarding prior conviction);Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 1.1.B (2013).

            It may be necessary to add to the instruction a statement of the purpose for which the stipulation is offered.  See United States v. Page, 657 F.3d 126, 130-31 (2d Cir. 2011); United States v. Higdon, 638 F.3d 233, 243 & n.7 (3d Cir. 2011); Instruction 2.12 (Evidence for Limited Purpose). 

Revised Sept. 2019

           I have decided to accept as proved the fact that [insert fact noticed], even though no evidence was presented on this point [,] [because this fact is of such common knowledge].  You may accept this fact as true, but you are not required to do so.

Comment

            An instruction regarding judicial notice should be given at the time notice is taken.  “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”  Fed. R. Evid. 201(b) (addressing adjudicative facts).  Although the court must instruct a jury in a civil case to accept as conclusive any fact judicially noticed, “[i]n a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.”  Fed. R. Evid. 201(f).  Thus, in United States v. Chapel, 41 F.3d 1338 (9th Cir. 1994), the trial court correctly took judicial notice of a bank’s FDIC status because the evidence established that its status “was not subject to reasonable dispute.”  Id. at 1342.  Moreover, the court did not “usurp the jury’s fact-finding role by taking judicial notice” when it instructed the jury that “you may accept the court’s declaration as evidence and regard as proved the fact or event which has been judicially noticed.  You are not required to do so, however, since you are the sole judges of the facts.”  Id.

            Note that Rule 201 does not apply to legislative facts.  For example, in United States v. Zepeda, 792 F. 3d 1103, 1114 (9th Cir. 2015) (en banc), the court held that whether an Indian tribe is federally recognized is “a question of law to be decided by the judge.”  “[T]he court may consult . . . evidence that is judicially noticeable” such as the Bureau of Indian Affairs’ annual list of federally recognized tribes to decide the question.  Id.  Where the court takes judicial notice of a legislative fact, the court may simply instruct the jury to that effect:  “You are instructed that [insert legislative fact noticed, e.g., the Gila River Indian Community of the Gila River Indian Reservation, Arizona, is a federally recognized tribe]).”

Revised Dec. 2017 

            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 [name of witness], which was taken on [date], is about to be presented to you.  You should consider deposition testimony in the same way that you consider the testimony of the witnesses who have appeared before you.  [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

Comment

            Use this instruction only when the court concludes that testimony by deposition may be received as substantive evidence in light of the rules of evidence and the defendant's confrontation rights.  The Committee recommends that it be given immediately before a deposition is read.  The bracketed last sentence of the instruction would not be used when the deposition is presented by video or audio recording.

            See Fed. R. Crim. P. 15. 

Revised Dec. 2017

           You [are about to [hear][watch] [have heard] [watched]] a recording that has been received in evidence.  [Please listen to it very carefully.]  Each of you [has been] [was] given a transcript of the recording to help you identify speakers and as a guide to help you listen to the recording.  However, bear in mind that the recording is the evidence, not the transcript.  If you [hear][heard] something different from what [appears][appeared] in the transcript, what you [hear][heard] is controlling.  [[After] [Now that] the recording has been played, the transcript will be taken from you.]

Comment

            See United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998).

            The Committee recommends that this instruction be given immediately before a 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 recording is played.  However, the judge should remind the jury that the recording and not the transcript is the evidence, and that they should disregard anything in the transcript that they do not hear.  Further, the transcripts should not be left with the jury after the recording has been played. 

 Revised Sept. 2017

            You [are about to [hear][watch]] [have [heard][watched]] a recordingin the [specify foreign language] language.  Each of you [has been] [was] given a transcript of the recording that has been admitted into evidence.  The transcript is an English-language translation of the recording.

            Although some of you may know the [specify foreign language] language, it is important that all jurors consider the same evidence.  The transcript is the evidence, not the foreign language spoken in the recording.  Therefore, you must accept the English translation contained in the transcript and disregard any different meaning of the non-English words.

Comment

            The Committee recommends giving this instruction immediately before the jury hears a recorded conversation in a foreign language if the accuracy of the translation is not in issue.  As the court noted in United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998):

The district court also correctly held that the relation between tapes and transcripts changes when the tapes are in a foreign language. When tapes are in English, they normally constitute the actual evidence and transcripts are used only as aids to understanding the tapes; the jury is instructed that if the tape and transcript vary, the tape is controlling. See United States v. Turner, 528 F.2d 143, 167-68 (9th Cir. 1975). When the tape is in a foreign language, however, such an instruction is “not only nonsensical, it has the potential for harm where the jury includes bilingual jurors.” United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995). We therefore have upheld a trial court’s instruction that a jury is not free to disagree with a translated transcript of tape recordings. See id.

            For a discussion regarding unintelligible recordings, see United States v. Rrapi, 175 F.3d 742, 748 (9th Cir. 1999).

Revised Dec. 2017

          You [are about to [hear][watch]] [have [heard][watched]] a recordingin the [specify foreign language] language.  A transcript of the recording has been admitted into evidence.  The transcript is an [official] English-language translation of the recording.  The accuracy of the transcript is disputed in this case.

            Whether a transcript is an accurate translation, in whole or in part, is for you to decide.  In considering whether a transcript accurately describes the words spoken in a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made.  You may consider the knowledge, training, and experience of the translator, the audibility of the recording, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case. 

            Although some of you may know the [specify foreign language] language, it is important that all jurors consider the same evidence.  Therefore, you must not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcript must be based on the evidence in the case.  

Comment

            This instruction is appropriate where parties are unable to stipulate to a transcript.  The court should encourage the parties to stipulate to a transcript of the foreign language recording that satisfies all sides.  United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985); United States v. Wilson, 578 F.2d 67, 69–70 (5th Cir. 1978).  If the parties are unable to do so, then they should submit competing translations of the disputed passages, and each side may submit evidence supporting the accuracy of its version or challenging the accuracy of the other side.  Cruz, 765 F.2d at 1023; Wilson, 578; F.2d at 70; United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998).

            Jurors should be instructed to rely only on the English translation, not on any knowledge they may have of the foreign language spoken on the recording.  United States v. Fuentes-Montijo, 68 F.3d 353, 355 (9th Cir. 1995).

            See also Instructions 1.12 (Jury to be Guided by English Translation/Interpretation);2.6 (Transcript of Recording in English); 2.7 (Transcript of Recording in Foreign language); and 2.9 (Foreign Language Testimony).

Revised Mar. 2018

          You [are about to hear] [have heard] testimony of a witness who [will be testifying] [testified] in the [specify foreign language] language.  Witnesses who do not speak English or are more proficient in another language testify through an official court interpreter.  Although some of you may know the [specify foreign language] language, it is important that all jurors consider the same evidence.  Therefore, you must accept the interpreter’s translation of the witness’s testimony.  You must disregard any different meaning.

            You must not make any assumptions about a witness or party based solely on the fact that an interpreter was used. 

Comment

            This instruction should be given immediately before the jury hears testimony in a foreign language.  Cf. United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

Revised Mar. 2018

           You [[are about to hear] [have heard] testimony] [[are about to see] [have seen] evidence] [are about to see evidence] that the defendant [summarize other act evidence].  This evidence of other acts [was] [will be] admitted only for [a] limited purpose[s].  You may consider this evidence only for the purpose of deciding whether the defendant:

            [had the state of mind, knowledge, or intent necessary to commit the crime charged in the indictment;]

or

            [had a motive or the opportunity to commit the acts charged in the indictment;]

or

            [was preparing or planning to commit the acts charged in the indictment;]

or

            [acted with a method of operation as evidenced by a unique pattern [describe pattern];]

or

            [did not commit the acts for which the defendant is on trial by accident or mistake;]

or

            [is the person who committed the crime charged in the indictment.  You may consider this evidence to help you decide [describe how the evidence will be used to prove identity];]

or

            [describe other purpose for which other act evidence was admitted.]

            Do not consider this evidence for any other purpose.

            Of course, it is for you to determine whether you believe this evidence and, if you do believe it, whether you accept it for the purpose offered.  You may give it such weight as you feel it deserves, but only for the limited purpose that I described to you.

            The defendant is not on trial for committing these other acts.  You may not consider the evidence of these other acts as a substitute for proof that the defendant committed the crime[s] charged.  You may not consider this evidence as proof that the defendant has a bad character or any propensity to commit crimes.  Specifically, you may not use this evidence to conclude that because the defendant may have committed the other act[s], [he] [she] must also have committed the act[s] charged in the indictment.

            Remember that the defendant is on trial here only for [state charges], not for these other acts.  Do not return a guilty verdict unless the government proves the crime[s] charged in the indictment beyond a reasonable doubt.

Comment

            “Under Federal Rule of Evidence 404(b), evidence of other acts may be admissible to prove, among other things, motive, opportunity, intent, or knowledge.  For other act evidence to be admissible, (1) the evidence must tend to prove a material issue in the case, (2) the acts must be similar to the offense charged, (3) proof of the other acts must be based upon sufficient evidence, and (4) the acts must not be too remote in time.  See United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir. 1998).”  United States v. Fuchs, 218 F.3d 957, 965 (9th Cir. 2000).

            A limiting instruction must be given if requested, Fed. R. Evid. 105, and it may be appropriate to give such an instruction sua sponte.  Nonetheless, it is “well-settled that where no limiting instruction is requested concerning evidence of other criminal acts, the failure of the trial court to give such an instruction sua sponteis not reversible error.”  United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir. 1984).

Revised Mar. 2018

            You are about to hear evidence that the defendant [may have committed] [was convicted of] a similar offense of [sexual assault] [child molestation].

            You may use this evidence to decide whether the defendant committed the act charged in the indictment.  You may not convict the defendant simply because he [may have committed] [was convicted of] other unlawful acts.  You may give this evidence such weight as you think it should receive or no weight. 

            [You may not use this evidence, however, to decide whether the defendant [insert improper purpose, e.g., made a statement in this case or destroyed evidence in this case].]

Comment

            This instruction is based on Fed. R. Evid. 413 and 414.  See also United States v. Porter, 121 F.4th 747, 749, 753 (9th Cir. 2024) (holding Rule 413 does not violate the Due Process Clause when applied in conjunction with Evidence Rule 403, and this instruction’s use was “appropriate” in a sexual assault case).

            Federal Rules of Evidence 413 and 414 permit introduction of evidence the defendant committed a similar act of sexual assault or child molestation “for its bearing on any matter to which it is relevant,” including the defendant’s propensity to commit the crime charged.  The prosecution is not required to prove the defendant was charged with or convicted of a crime, to prove the other act beyond reasonable doubt, or to corroborate a percipient witness’s testimony that the other act occurred.  In addition, the evidence is frequently “emotional and highly charged.”  United States v. Lemay, 260 F.3d 1018, 1030 (9th Cir. 2001).  For these reasons, it is appropriate to remind the jury that it decides how to weigh the evidence and may not convict the defendant for acts not charged in the indictment.

            The court should consider giving the instruction before the evidence is admitted and again in the final instructions. See Porter, 121 F.4th at 749. For factors to consider in determining the admissibility of the evidence, see Lemay, 260 F.3d at 1027-28.

            Rule 413 or 414 evidence is not admissible to show any other propensity, such as propensity to confess or propensity to destroy evidence.  See, e.g., United States v. Redlightning, 624 F.3d 1090, 1119-22 (9th Cir. 2010).  Where the evidence presented at trial poses the prospect of impermissible use of the propensity evidence, the further limiting instruction provided in the third paragraph may be necessary.  But if confession or evidence destruction is part of the defendant’s alleged modus operandi, the further limitation would not be necessary. 

Revised March 2025

           You are about to hear evidence that [describe evidence to be received for limited purpose].  I instruct you that this evidence is admitted only for the limited purpose of [describe purpose] and, therefore, you must consider it only for that limited purpose and not for any other purpose.

Comment

            Federal Rule of Evidence 105 provides that when evidence is admitted for a limited purpose, the court, when requested, must provide a limiting instruction.  Furthermore, the court must provide an appropriate limiting instruction sua sponteif failure to do so would affect the defendant’s “substantial rights.”  See United States v. Armijo, 5 F.3d 1229, 1232 (9th Cir. 1993).  For example, in United States v. Sauza-Martinez, 217 F.3d 754, 760 (9th Cir. 2000), the Ninth Circuit held the trial court “had no alternative” but to give the jury a limiting instruction sua sponte when a testifying codefendant’s post-arrest statements were admitted as substantive evidence against her under Fed. R. Evid. 801(d)(2)(A) but were not admissible against another codefendant “under any theory” (emphasis in original).  Under the circumstances of the case, it was plain error to fail to give the limiting instruction sua sponte.  Id. at 761.

            The Committee recommends judges use limiting instructions whenever evidence is received for a limited purpose.  “We have repeatedly held that a district court’s careful and frequent limiting instructions to the jury, explaining how and against whom certain evidence may be considered, can reduce or eliminate any possibility of prejudice arising from a joint trial.”  United States v. Fernandez, 388 F.3d 1199, 1243 (9th Cir. 2004) (internal citations omitted). 

Revised Mar. 2018

            You have heard evidence that a photo of the defendant was shown to [name of witness].  You may consider this evidence only for [specify admissible purpose] and not for any other purpose.  [Because the government obtains photos of many people from many different sources and for many different purposes, you must not infer the defendant committed this or any other crime from the fact that the government obtained and displayed the defendant’s photo.]

Comment

            This instruction should not be given unless specifically requested by the defense.  See United States v. Monks, 774 F.2d 945, 954-55 (9th Cir. 1985), in which the Ninth Circuit held the trial court did not abuse its discretion in denying a motion for mistrial after the defendant declined the trial court’s offer of a limiting instruction to address a witness’s unintentional reference to a photo lineup as “mugshots.” 

Revised Mar. 2018

            At the beginning of the trial, I described the charge[s] against the defendant.  For reasons that do not concern you, [specify count[s] or charge[s]] [is] [are] no longer before you.  Do not speculate about why the charge[s] [is] [are] no longer part of this trial.

            The defendant is on trial only for the charge[s] of [remaining count[s]].  You may consider the evidence presented only as it relates to the remaining count[s].

Comment

            This instruction should not be given unless specifically requested by the defense.  See United States v. de Cruz, 82 F.3d 856, 865 (9th Cir. 1996) (concluding that district court’s instruction adequately informed jury that dismissed counts were not before them, that defendant was on trial only for remaining counts, and that evidence could only be considered as it related to remaining charged counts or as it related to defendant’s intent). 

Revised Mar. 2018

            For reasons that do not concern you, the case against codefendant [name] is no longer before you.  Do not speculate why.  This fact should not influence your verdict[s] with reference to the remaining defendant[s], and you must base your verdict[s] solely on the evidence against the remaining defendant[s].

Comment

            Although it is not plain error to give a similar instruction when a codefendant dies after the jury begins to deliberate, it may be advisable under certain circumstances to give a “simple and honest” explanation to the jury as to why a codefendant is no longer in the case, particularly if the codefendant’s removal from the case occurred early in the trial.  United States v. Bussell, 414 F.3d 1048, 1054 (9th Cir. 2005).  The later in the trial that the codefendant is “removed,” the more likely it is that the jury could be influenced by a fact-specific disclosure, especially if the remaining defendant(s) had a close relationship with the withdrawn defendant.  Therefore, a better approach at that stage may be simply to inform the jury that the codefendant is no longer a defendant in the case.  See United States v. Garrison, 888 F.3d 1057, 1066 (9th Cir. 2018) (“In instances where defendants depart from a multi-defendant trial late in the trial . . . the best course may be simply to tell the jury that the defendant is no longer part of the case.”).

            No reference should ordinarily be made in this situation to a plea of guilty by the codefendant.  See, e.g., United States v. Barrientos, 758 F.2d 1152, 1159-60 (7th Cir. 1985) (stating that when codefendant becomes absent from trial for any reason, trial court should acknowledge codefendant’s absence to jury and instruct them on their duty to consider evidence of guilt or innocence as to remaining defendant without any reference to any implications of codefendant’s absence).  See also United States v. Carraway, 108 F.3d 745, 755 (7th Cir. 1997); United States v. Rapp, 871 F.2d 957, 967-68 (11th Cir. 1989).

            See also United States v. Candoli, 870 F.2d 496, 501-02 (9th Cir. 1989) (“flight” instruction on codefendant’s midtrial disappearance did not prejudice defendant when instruction did not require jury to consider codefendant’s absence as evidence of guilt and provided that evidence of codefendant’s flight was not admissible against defendant). 

Revised June 2018 

            You have heard evidence that the defendant has been tried before.  Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial.  You are not to consider the fact of a previous trial in deciding this case. 

Comment 

            This instruction should not be given unless the jury has been informed of the previous trial and the instruction is specifically requested by the defense.  A preferable practice is to avoid all reference to prior trials. 

Revised Mar. 2018