The Committee believes that instructions on particular kinds of evidence should be avoided as much as possible.  General instructions on direct and circumstantial evidence and on credibility of witnesses should in most instances suffice, obviating the need for more specific instructions.  See, for example, United States v. Holmes, 229 F.3d 782, 787-88 (9th Cir. 2000); United States v. Ketola, 478 F.2d 64, 66 (9th Cir. 1973).

            However, instructions on particular kinds of evidence may be necessary in two circumstances.  First, when evidence is admissible for one purpose but not another, a limiting instruction may be required by Fed. R. Evid. 105.  Second, certain specific instructions (including those specified in Instructions 3.9, 3.10, 3.11, 3.14, and 3.15) may need to be given when requested and may be advisable even if not requested.  See United States v. Bernard, 625 F.2d 854, 857 (9th Cir. 1980) (holding that failure to give requested accomplice instruction was prejudicial error where accomplice’s testimony was important to case).

            The Committee believes that an instruction on circumstantial evidence generally eliminates the need to explain the same principle in terms of inferences.  Thus, the Committee recommends against giving instructions on matters such as flight, resistance to arrest, a missing witness, failure to produce evidence, false or inconsistent exculpatory statements, failure to respond to accusatory statements, and attempts to suppress or tamper with evidence.  These matters 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, 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) (Ninth Circuit disapproved of instructing jury that knowledge of presence of drugs in vehicle may be inferred from defendant being driver). 

Revised Mar. 2018

           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 admissibility of 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 defendant raises genuine issue at trial concerning voluntariness of statement, trial court is obligated by statute to instruct jury concerning weight to be accorded that statement).  Failure to give the required instruction may constitute plain error.  Id. at 1109. 

            In a joint trial, when a nontestifying defendant’s statement directly inculpates a nonconfessing codefendant, the Confrontation Clause may bar the admission of the defendant’s statement.  Bruton v. United States, 391 U.S. 123, 137 (1968) (holding admission of nontestifying defendant’s statement inculpating nonconfessing codefendant by name violated the Confrontation Clause, despite limiting instruction).  In these circumstances, modification of the statement may be necessary to avoid directly identifying the nonconfessing codefendant and the court may be required to offer a limiting instruction that jurors may consider the statement only with respect to the confessing codefendant.  See Samia v. United States, 599 U.S. ­635 (2023) (holding that nontestifying codefendant’s confession that substituted a codefendant’s name with “other person,” coupled with limiting instruction, did not violate the Confrontation Clause because it did not directly inculpate defendant); Gray v. Maryland, 523 U.S. 185, 194 (1998) (holding that obviously redacted statement substituting nonconfessing codefendant’s name with “deleted” or “deletion” was “directly accusatory” and violated the Confrontation Clause, notwithstanding limiting instruction); Richardson v. Marsh, 481 U.S. 200, 211 (1987) (holding the Confrontation Clause did not bar admission of a redacted statement by the nontestifying codefendant because the statement did not implicate anyone else and the jury was instructed not to use the confession in any way against the defendant).  See Model Instruction 2.12 Evidence for Limited Purpose for limiting instructions.

            The trial court must make a preliminary finding by a preponderance of the evidence that the co-conspirator’s statements fall within the scope of the hearsay exception for statement of co-conspirators. In United States v. Ehmer, 87 F.4th 1073, 1127-28 (9th Cir. 2023), one of the defendants contended that another co-conspirator’s statements, which were made after the defendant had withdrawn from the conspiracy, were hearsay and erroneously admitted. The Ninth Circuit agreed and held that the trial court erred in not making a preliminary finding on the “threshold question” whether the co-conspirator’s statements were made when the defendant was part of the conspiracy. Id. at 1127 (rejecting the government’s argument that “the hearsay exception continues to apply, even as to persons who have withdrawn from the conspiracy, so long as the declarant remains in the conspiracy.”). 

Revised June 2024

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 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. 

Revised June 2018

            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 3.6 (Impeachment, Prior Conviction of Defendant) and the Comment thereto, the Comment to Instruction 3.3 (Other Crimes, Wrongs or Acts of Defendant), and Instruction 2.11 (Similar Acts in Sexual Assault and Child Molestation Cases).  

Revised Mar. 2018

            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). 

Revised Mar. 2018

            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, 854 (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.”). 

            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 3.3 (Other Crimes, Wrongs, or Acts of Defendant). 

Revised Mar. 2018

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 6.9 (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 Truthfulness or Untruthfulness) and 609 (Impeachment by Evidence of a Criminal Conviction) 

Revised Mar. 2018

           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. 

Revised Mar. 2018

          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, 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).    

Revised Mar. 2018

           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 the following:

First, 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;

Second, whether the identification was the product of the eyewitness’s own recollection or was the result of subsequent influence or suggestiveness;

Third, any inconsistent identifications made by the eyewitness;

Fourth, the witness’s familiarity with the subject identified; 

Fifth, the strength of earlier and later identifications;

Sixth, lapses of time between the event and the identification[s]; and

Seventh, 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). 

Revised June 2019

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 6.9 (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 general witness credibility instruction provided jury with adequate guidance in evaluating child’s testimony).

           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”).  “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.”). 

Revised June 2018

           You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] about [his] [her] opinions and the reasons for those opinions.  This opinion testimony is allowed because of the specialized knowledge, skill, experience, training, or education 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 knowledge, skill, experience, training, or education, 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 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.’”  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).

            Although an expert witness in a criminal case may not opine “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense,” Fed. R. Evid. 704(b), an expert may testify that “most people” in a group have a particular mental state, because such an opinion is not a “conclusion[] as to the defendant’s mental state.” Diaz v. United States, 602 U.S. __, 144 S. Ct. 1727, 1733-35 (2024) (emphasis added) (holding that expert testimony that most drug couriers “know they are hired . . . to take drugs from point A to point B” was permissible under Rule 704(b)).

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

This instruction is appropriate for a witness who provides only expert opinion testimony.  If the same witness provides both expert opinion testimony and percipient witness testimony (including fact testimony, lay opinion testimony, or both), these different roles must be clarified for the jury.  See Comment to Instruction 3.15 (Dual Role Testimony).  In that event, use one of the three options shown in Instruction 3.15, instead of this instruction.

Revised Sep 2024

            [You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] about facts and [his] [her] opinions and the reasons for those opinions.  Fact testimony is based on what the witness personally saw, heard, or did.  Opinion testimony is based on the specialized knowledge, skill, experience, training, or education 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.

As to the testimony about the witness’s opinions, this testimony is allowed because of the specialized knowledge, skill, experience, training, or education 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 knowledge, skill, experience, training, or education, the reasons given for the opinion, and all the other evidence in the case.

You also should [pay careful attention as to whether the witness is testifying] [consider whether the witness testified] to personal observations or involvement as a fact witness or testifying to an opinion based on specialized knowledge, skill, experience, training, or education.  When a witness provides opinion testimony based on knowledge, skill, experience, training, or education, that person might rely on facts that are not based on his or her personal observations or involvement, but that opinion cannot serve as proof of the underlying facts.

[You should also consider the factors discussed earlier in these instructions that were provided to assist you in weighing the credibility of witnesses.]

[Also, the fact that a witness is allowed to express opinions based on that person’s specialized knowledge, skill, experience, training, or education should not cause you to give that witness undue deference for any of aspect of that person’s testimony or otherwise influence your assessment of the credibility of that witness.]]

[Option 2—Lay and Expert Opinions]

[You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] about [his] [her] opinions and the reasons for those opinions.  Some of the opinion testimony you [will hear] [have heard] from this witness is based on the specialized knowledge, skill, experience, training, or education of this witness.  This testimony is allowed because of the knowledge, skill, experience, training, or education of this witness.  It 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 knowledge, skill, experience, training, or education, the reasons given for the opinion, and all the other evidence in the case.

Other opinion testimony you [will hear] [have heard] from this witness is called “lay opinion testimony.”  Lay opinion testimony is based on inferences drawn from the witness’s direct perceptions and must be rationally based on those perceptions and not on speculation or what someone else has said.  You should judge lay opinion testimony 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. When considering lay opinion testimony, however, you should not give it any extra credence based on the specialized knowledge, skill, experience, training, or education of this witness.

You also should [pay careful attention as to whether the witness is testifying] [consider whether the witness testified] about a lay opinion based on the witness’s perceptions or testifying to an opinion based on specialized knowledge, skill, experience, training, or education.  When a witness provides opinion testimony based on knowledge, skill, experience, training, or education, that person might rely on facts that are not based on his or her personal observations or involvement, but that opinion cannot serve as proof of the underlying facts.

[You should also consider the factors discussed earlier in these instructions that were provided to assist you in weighing the credibility of witnesses.]

[Also, the fact that a witness is allowed to express opinions based on that person’s specialized knowledge, skill, experience, training, or education should not cause you to give that witness undue deference for any of aspect of that person’s testimony or otherwise influence your assessment of the credibility of that witness.]]

[Option 3—Facts, Lay Opinions, and Expert Opinions]

[You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] to both facts and two types of opinions and the reasons for those opinions.  I will describe all three types of testimony. The first is fact testimony.  Fact testimony is based on what the witness personally saw, heard, or did.  The second is opinion testimony based on the specialized knowledge, skill, experience, training, or education of the witness.  The third is what is called “lay opinion testimony.”

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.

As to the opinion testimony based on the witness’s specialized knowledge, skill, experience, training, or education, you should judge this testimony 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 knowledge, skill, experience, training, or education, the reasons given for the opinion, and all the other evidence in the case.

As to the lay opinion testimony, this testimony is based on inferences drawn from the witness’s direct perceptions and must be rationally based on those perceptions and not on speculation or what someone else has said.  You should judge this testimony 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. When considering lay opinion testimony, however, you should not give it any extra credence based on the specialized knowledge, skill, experience, training, or education of this witness.

You also should [pay careful attention as to whether the witness is testifying] [consider whether the witness testified] to personal observations or involvement as a fact witness, testifying about a lay opinion based on the witness’s perceptions, or testifying to an opinion based on specialized knowledge, skill, experience, training, or education.  When a witness provides opinion testimony based on knowledge, skill, experience, training, or education, that person might rely on facts that are not based on his or her personal observations or involvement, but that opinion cannot serve as proof of the underlying facts.

[You should also consider the factors discussed earlier in these instructions that were provided to assist you in weighing the credibility of witnesses.]

[Also, the fact that a witness is allowed to express opinions based on that person’s specialized knowledge, skill, experience, training, or education should not cause you to give that witness undue deference for any of aspect of that person’s testimony or otherwise influence your assessment of the credibility of that witness.]]

Comment

In United States v. Holguin, 51 F.4th 841 (9th Cir. 2022), the Ninth Circuit explained:

We have previously emphasized that trial courts should endeavor to explain clearly the differences between lay percipient testimony, lay opinion testimony (as governed by Rule 701), and expert opinion testimony (as governed by Rule 702) in settings where all three arise. In many cases, designating an umbrella category of “opinion testimony” may fail to provide an appropriate level of nuance to guide the jury’s evaluation of dual role testimony. Glossing over this three-way distinction may lead to the jury applying the instructions that they were given about “opinion” testimony to lay opinion even though it was intended for expert testimony. In doing so, the jury would consider the witness’s experience, training, and specialized knowledge in evaluating lay opinion – exactly the kind of bolstering of lay opinion with expert credentials about which we have warned.

Id. at 864 (quotation marks, internal citations, and brackets omitted) (citing United States v. Rodriguez, 971 F.3d 1005, 1118 (9th Cir. 2020)).

In some cases, a witness may provide only expert opinion testimony. In that event, Instruction 3.14 should suffice.

In other cases, a witness may testify both as an expert witness and as a fact witness without offering any lay opinion testimony.  Option 1 addresses this situation.  The word “expert,” which is used in the title of Option 1, should not be used in the presence of the jury. See Comment to Instruction 3.14 (Opinion Evidence, Expert Witness).

             If a witness testifies to both facts and expert 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 a witness offering an expert opinion.  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.  Id. 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 3.14 (Opinion Evidence, Expert Witness). 

In still other cases, a witness may provide both expert opinion testimony and lay opinion testimony (but not as a percipient witness testifying about facts). Option 2 addresses this situation.  Again, the word “expert,” which is used in the title of Option 2, should not be used in the presence of the jury.  See Comment to Instruction 3.14 (Opinion Evidence, Expert Witness). As with Option 1, the judge also might consider bifurcating this witness’s testimony by separating a witness’s expert opinions from the witness’s lay opinions.  The lay opinion testimony instruction is based on Rule 701 of the Federal Rules of Evidence and the Ninth Circuit’s discussion in Vera, 770 F.3d at 1242.

And in still other cases, as mentioned in both Holguin and Rodriguez, a witness may provide all three types of testimony: fact testimony, lay opinion testimony (as governed by Rule 701), and expert opinion testimony (as governed by Rule 702).  Option 3 addresses this situation.  Again, the word “expert,” which is used in the title of Option 3, should not be used in the presence of the jury.  See Instruction 3.14 (Comment).  And again, as with Option 1, the judge also might consider trifurcating this witness’s testimony by separating a witness’s fact testimony, expert opinions based on education or experience, and lay opinions.

The cautionary statements within each option come from the Ninth Circuit’s statement of the need to explain clearly the differences between lay percipient testimony, lay opinion testimony, and expert opinion testimony and “to provide an appropriate level of nuance to guide the jury’s evaluation of dual role testimony.”  Rodriguez, 971 F.3d at 1018.

Finally, each option concludes with a “no deference” statement in brackets.  The Ninth Circuit does not require this statement, and it typically is not given in cases involving witnesses who provide only expert opinions.  See, e.g., Instruction 3.14.  It might be helpful, however, to avoid undue prejudice in cases dealing with dual (or triple) testimony.

 Revised Mar. 2023

            During the trial, certain charts and summaries were shown to you 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 3.17 (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). 

Revised Mar. 2018

            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 3.16 (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.  

Revised Mar. 2018

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).  

Revised Mar. 2018

            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.  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. 

Revised Mar. 2018

           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. 

Revised Apr. 2019