4.1 STATEMENTS BY DEFENDANT

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

Comment

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

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