2.1 STIPULATED TESTIMONY
The parties have agreed what [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.
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); United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir.1977).
2.2 STIPULATIONS OF FACT
The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that will be read to you]. You should therefore treat these facts as having been proved.
When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir.1999) (citing United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976)), amended by 180 F.3d 1091 (9th Cir.1999).
2.3 JUDICIAL NOTICE
The court has decided to accept as proved the fact that [state fact], even though no evidence has been introduced on the subject. You must accept this fact as true.
An instruction regarding judicial notice should be given at the time notice is taken. In civil cases, Fed. R. Evid. 201(g) permits the judge to determine that a fact is sufficiently undisputed to be judicially noticed and requires that the jury be instructed that it is required to accept that fact. But see United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir.1994) (in a criminal case, "the trial court must instruct ‘the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.’") (citing Fed. R. Evid. 201(g)); Ninth Circuit Model Criminal Jury Instruction 2.5 (2003) (Judicial Notice).
2.4 DEPOSITION IN LIEU OF LIVE TESTIMONY
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. [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.]
The deposition of [witness] was taken on [date]. You should consider deposition testimony, presented to you in court in lieu of live testimony, insofar as possible, in the same way as if the witness had been present to testify.
[Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]
This instruction should be used only when testimony by deposition is used in lieu of live testimony. The committee recommends that it be given immediately before a deposition is to be read. It need not be repeated if more than one deposition is read. If the judge prefers to include the instruction as a part of his or her instructions before evidence, it should be modified appropriately.
2.5 TRANSCRIPT OF TAPE RECORDING
You [are about to listen] [have listened] to a tape 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 tape. However, bear in mind that the tape recording is the evidence, not the transcript. If you [hear] [heard] something different from what [appears] [appeared] in the transcript, what you heard is controlling. After the tape has been played, the transcript will be taken from you.
See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (the recording itself is the evidence to be considered; the transcript is merely an aid).
See United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir. 2004) (court instructed jury that transcripts were only aids to understanding and that the recordings themselves were evidence).
The committee recommends that this instruction be given immediately before a tape 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 tape recording is played. It is good practice to remind the jury that the tape recording and not the transcript is the evidence, and that they should disregard anything in the transcript that they do not hear.
See Instructions 2.6 (Transcript of Recording in Foreign Language), and 2.7 (Foreign Language Testimony).
2.6 TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE
You [are about to listen] [have listened] to a tape recording in [language used]. Each of you [has been] [was] given a transcript of the recording that has been admitted into evidence. The transcript is a translation of the foreign language tape recording.
Although some of you may know [language used], it is important that all jurors consider the same evidence. The transcript is the evidence, not the foreign language spoken in the tape recording. Therefore, you must accept the interpreter’s translation contained in the transcript and disregard any different meaning.
This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is not in issue. See, e.g., United States v. Rrapi, 175 F.3d 742, 746 (9th Cir.1999); 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).
See also Instruction 1.16 (Jury to Be Guided by Official English Language Translation/Interpretation), 2.5 (Transcript of Tape Recording), and 2.7 (Foreign Language Testimony).
2.6A DISPUTED TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE
You are about to [hear] [watch] a recordingin the [specify the 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 the 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.
This instruction is appropriate where parties are unable to produce an official transcript or stipulate to a transcript. The court should encourage the parties to produce an official or stipulated 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 Instructions1.16 (Jury to Be Guided by Official English Language Translation/Interpretation), 2.5 (Transcript of Tape Recording), 2.6 (Transcript of Recording in Foreign Language), and 2.7 (Foreign Language Testimony).
2.7 FOREIGN LANGUAGE TESTIMONY
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 [language used], 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.
Cf. United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (jury properly instructed that it must accept translation of foreign language tape-recording where the accuracy of the translation is not in issue); United States v. Rrapi, 175 F.3d 742, 746 (9th Cir.1999); United States v. Fuentes–Montijo, 68 F.3d 352, 355–56 (9th Cir.1995).
See also Instruction 1.16 (Jury to Be Guided by Official English Language Translation/Interpretation, 2.5 (Transcript of Tape Recording), and 2.6 (Transcript of Tape Recording in Foreign Language).
2.8 IMPEACHMENT EVIDENCE—WITNESS
The evidence that a witness [e.g., has been convicted of a crime, lied under oath on a prior occasion, etc.] may be considered, along with all other evidence, in deciding whether or not to believe the witness and how much weight to give to the testimony of the witness and for no other purpose.
If this instruction is given during the trial, the committee recommends giving the second sentence in numbered paragraph 3 of Instruction 1.7 (What Is Not Evidence) with the concluding instructions. See also Instruction 1.8 (Evidence for Limited Purpose).
2.9 TESTS AND EXPERIMENTS
[Arrangements have been made to conduct a test or experiment.] [A test or experiment was conducted.]
[Observe] [You observed] the conditions under which that test or experiment [is] [was] made. These conditions may or may not duplicate the conditions and other circumstances that existed at the time and place of the incident involved in this case.
It is for you to decide what weight, if any, you give to the test or experiment.
2.10 USE OF INTERROGATORIES OF A PARTY
Evidence [will now be] [was] presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers [have been] [were] given in writing and under oath, before the actual trial, in response to questions that were submitted in writing under established court procedures. You should consider the answers, insofar as possible, in the same way as if they were made from the witness stand.
Use this oral instruction before interrogatories and answers are read to the jury; it may also be included in the concluding written instructions to the jury. The attorney should warn the judge ahead of time and give the judge an opportunity to give this oral instruction. This oral instruction is not appropriate if answers to interrogatories are being used for impeachment only.
Do not use this instruction for requests for admission under Fed. R. Civ. P. 36. The effect of requests for admission under the rule is not the same as the introduction of evidence through interrogatories. If an instruction is needed, a special one will have to be drafted.
2.11 EXPERT OPINION
Some witnesses, because of education or experience, are permitted to state opinions and the reasons for those opinions.
Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.
See Fed. R. Evid. 602, 701–05.
2.12 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE
Certain charts and summaries not received in evidence [may be] [have been] shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. 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.
This instruction applies only where the charts and summaries are not received into evidence and are used for demonstrative purposes. See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013).
2.13 CHARTS AND SUMMARIES IN EVIDENCE
Certain charts and summaries [may be] [have been] received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.
See United States v. Johnson, 594 F.2d 1253, 1254-55 (9th Cir.1979) (error to permit the introduction of a summary of evidence without the establishment of a foundation for the evidence). See also Fed. R. Evid. 1006. See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10A(1) (2013). This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.
2.14 EVIDENCE IN ELECTRONIC FORMAT
Those exhibits capable of being displayed electronically will be provided to you in that form, and you will be able to view them in the jury room. A computer, projector, printer and accessory equipment will be available to you in the jury room.
A court technician will show you how to operate the computer and other equipment; how to locate and view the exhibits on the computer; and how to print the exhibits. You will also be provided with a paper list of all exhibits received in evidence. (Alternatively, you may request a paper copy of an exhibit received in evidence by sending a note through the [clerk] [bailiff].) If you need additional equipment or supplies, you may make a request by sending a note.
In the event of any technical problem, or if you have questions about how to operate the computer or other equipment, you may send a note to the [clerk] [bailiff], signed by your foreperson or by one or more members of the jury. Be as brief as possible in describing the problem and do not refer to or discuss any exhibit you were attempting to view.
If a technical problem or question requires hands-on maintenance or instruction, a court technician may enter the jury room [with [the clerk] [the bailiff] [me] present for the sole purpose of assuring that the only matter that is discussed is the technical problem.] When the court technician or any non-juror is in the jury room, the jury shall not deliberate. No juror may say anything to the court technician or any non-juror other than to describe the technical problem or to seek information about operation of equipment. Do not discuss any exhibit or any aspect of the case.
The sole purpose of providing the computer in the jury room is to enable jurors to view the exhibits received in evidence in this case. You may not use the computer for any other purpose. At my direction, technicians have taken steps to make sure that the computer does not permit access to the Internet or to any "outside" website, database, directory, game, or other material. Do not attempt to alter the computer to obtain access to such materials. If you discover that the computer provides or allows access to such materials, you must inform me immediately and refrain from viewing such materials. Do not remove the computer or any electronic data [disk] from the jury room, and do not copy any such data.
This instruction is premised on the assumption that the parties have stipulated in writing to the availability of electronic display devices in the jury room and to the procedures set forth in the instruction. The stipulation should be subject to approval by the judge and entered as an order. It should contain the following provisions:
1. The parties agree to an allocation of the costs of providing the necessary equipment, including the computer, hard drive, projector, cable, printer, monitor and other accessories.
2. The parties jointly will arrange to load images of the admitted exhibits onto a hard drive in "PDF" format. (This format is meant to assure maximum security.) They shall assure that the hard drive contains only such items and nothing else.
3. The parties jointly will compile a document entitled "Admitted Exhibit List" that consists of all trial exhibits actually received into evidence, listed in numerical order and containing the date (where available) and a brief description of the exhibit. The Admitted Exhibit List should be text searchable. (In complicated or document-laden cases, it would be advisable for the parties to prepare a second exhibit list that would contain the same information, except that the exhibits would be listed in chronological order. That second list would be made available to the jury in "hard copy," not electronic form.)
4. Before the jury retires to deliberate, the parties will review the notebook computer, the exhibit list interface and the images of the exhibits, to assure their accuracy. Unless a party objects before the jury retires to deliberate, that party will waive all objections to the materials and equipment submitted to the jury.
5. The parties shall maintain at the courthouse a backup notebook computer and a backup hard drive with images and data identical to what was loaded onto the hard drive sent into the jury room.
6. [During the "tutorial" that the technician provides in the jury room and on any later occasion that a technician enters the jury room to address a technical problem or matter, the judge will be present and the court reporter will record what is said.]
Paragraph 6 of the recommended stipulation is bracketed because if the jury encounters a technical problem after it has begun to deliberate, a variety of potentially difficult issues can arise. Inevitably, the technician will require and receive information from one or more jurors about the difficulty the jury is encountering. In many instances, the court technician will need to re-enter the jury room in order to address the problem. It is conceivable that the technician will be exposed to evidence that the jury was attempting to view or at least to the exhibit number(s) of such evidence. If the jurors themselves had developed charts, summaries, vote tallies or other indicia of their deliberations, or if they had written summaries of their findings thus far, the technician might be exposed to that information. (E.g., such matters could have been placed on a blackboard or in summaries strewn about the jury table.) If the judge and court reporter enter the jury room they, too, could be exposed to aspects of the jury’s deliberations that are not supposed to be revealed. The committee therefore suggests that in the event that a non-juror might be required to enter the jury room to deal with a technical problem, the judge should sua sponte raise these and related issues with counsel, before authorizing such entry. Among the factors that the judge and counsel should discuss are the following.
(a) Can the technical problem be addressed without entry into the room; e.g., by removing the equipment for examination outside the presence of jurors?
(b) Can the technical problem be addressed without any information from the jury other than an innocuous statement to the effect that (for example) "the printer isn’t working"?
(c) Can the risk of even inadvertent disclosure of the jury’s deliberations be eliminated by instructing the jury to cover any charts and to remove or conceal any papers, etc.?
(d) Should the technician, bailiff or clerk be sworn in, with an oath that requires them not to disclose whatever they see or hear in the jury room, except for the nature of the technical problem and whether the problem has been fixed?
Whether or not these or other appropriate precautions to minimize or eliminate the risk of disclosure are taken, the judge may consider giving the jury this instruction:
You have informed me that there is a technical problem that has interfered with your ability to review evidence electronically. I will send a technician into the jury room to deal with the problem. Please do not allow any materials reflecting any aspect of your deliberations to be visible during the technician’s presence.
Finally, if Instruction 2.14 is given in a criminal case, the judge should not permit any tape-recorded conversation or evidence to be included in the electronic evidence loaded onto the hard drive that contains the PDF files, because under Fed. R. Crim. P. 43, the defendant has a right to be present at the replaying of a tape. United States v. Felix-Rodriguez, 22 F.3d 964, 966-67 (9th Cir.1994).