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). On the latter, see Instruction 2.2 (Stipulations of Fact).
2.10 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.
See d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 890 (9th Cir.1977) (holding that district court properly allowed experiment evidence regarding flammability of carpet sample despite differences between test fire and actual fire); Canada Life Assur. Co. v. Houston, 241 F.2d 523, 537 (9th Cir. 1957) ("[T]he conditions surrounding a test or experiment of this nature need not be identical with those existing at the time of the occurrence in question provided there is a substantial similarity.") (internal quotations omitted).
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 must 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]. You must accept this fact as true.
An instruction regarding judicial notice should be given at the time notice is taken. In a civil case, the Federal Rules of Evidence permit 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. Fed. R. Evid. 201(f). In a criminal case, however, the court must instruct the jury that it may or may not accept the noticed fact as conclusive. Id.; 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’"); Ninth Circuit Model Criminal Jury Instruction 2.5 (2010) (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 [name of witness] was taken on [date]. Insofar as possible, you should consider deposition testimony, presented to you in court in lieu of live testimony, 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 RECORDING IN ENGLISH
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 heard is controlling. [After] [Now that] the recording has been played, the transcript will be taken from you.
See United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir.2004), abrogated on other grounds by United States v. Katakis, 800 F.3d 1017, 1028 (9th Cir. 2015) (holding that district court properly instructed jury that transcripts were only aids to understanding and that recordings themselves were evidence); United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (noting that recording itself is evidence to be considered; transcript is merely aid); see also Instructions 2.6 (Transcript of Recording in Foreign Language), 2.7 (Disputed Transcript of Recording in Foreign Language), and 2.8 (Foreign Language Testimony).
The Committee recommends that this instruction be given immediately before a recording is played so that the jurors are alerted to the fact that what they hear is controlling. It need not be repeated if more than one recording is played.
2.6 TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE
You [are about to [hear] [watch]] [have heard] [watched]] a recording in [specify the 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 the 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 interpreter’s translation contained in the transcript and disregard any different meaning of the non-English words.
This instruction is appropriate immediately before the jury hears a recorded conversation in a foreign language if the accuracy of the translation is not in issue; it may also be included in the concluding written instructions to the jury. 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 Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures§ 3.11.B (2013); see also Instructions 2.5 (Transcript of Recording in English), 2.7 (Disputed Transcript of Recording in Foreign Language) and 2.8 (Foreign Language Testimony).
2.7 DISPUTED TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE
You [are about to [hear] [watch]] [have heard] [watched]] a recordingin the [specify the foreign language] language. A transcript of the recording has been admitted into evidence. The transcript is an 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 immediately before the jury hears a recorded conversation in a foreign language if the parties are unable to produce an official transcript or stipulate to a transcript; it may also be included in the concluding written instructions to the jury. 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’s version. United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); Cruz, 765 F.2d at 1023; Wilson, 578 F.2d at 70. Regardless of whether the accuracy of the translated transcript is an issue, a juror cannot rely on any knowledge the juror may have of the foreign language spoken on the recording. United States v. Fuentes-Montijo, 68 F.3d 353, 355 (9th Cir.1995).
See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures§ 3.11.B (2013); see also Instructions2.5 (Transcript of Recording in English), 2.6 (Transcript of Recording in Foreign Language) and 2.8 (Foreign Language Testimony).
2.8 FOREIGN LANGUAGE TESTIMONY
You [are about to hear] [have heard] testimony of a witness who [will be testifying] [testified] in the [specify the 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 the 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 a party based solely on the use of an interpreter to assist that witness or party.
As to the use of interpreters, see generally 28 U.S.C. § 1827.
See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (holding that district court properly instructed jury that it must accept translation of foreign language tape-recording when accuracy of 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); Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.11.B (2013).
See also Instructions 2.5 (Transcript of Recording in English), 2.6 (Transcript of Recording in Foreign Language) and 2.7 (Disputed Transcript of Recording in Foreign Language).
2.9 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.
See Fed. R. Evid. 608–09; United States v. Hankey, 203 F.3d 1160, 1173 (9th Cir.2000) (finding that district court properly admitted impeachment evidence following limiting instruction to jury). 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).
2.11 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.
2.11 USE OF INTERROGATORIES
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 were given in writing and under oath before the trial in response to questions that were submitted 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. See Instruction 2.12 (Use of Requests for Admission).
2.12 USE OF REQUESTS FOR ADMISSION
Evidence [will now be] [was] presented to you in the form of admissions to the truth of certain facts. These admissions were given in writing before the trial, in response to requests that were submitted under established court procedures. You must treat these facts as having been proved.
See Fed. R. Civ. P. 36 ("A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended."). A court may properly exclude evidence at trial that is inconsistent with a Rule 36 admission. 999 v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir.1985).
Use this oral instruction before admissions 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.
Do not use this instruction for the use of interrogatories. The effect of requests for admission is not the same as the introduction of evidence through interrogatories. See Instruction 2.11 (Use of Interrogatories of a Party).
2.13 EXPERT OPINION
You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] to opinions and the reasons for [his] [her] opinions. This opinion testimony is allowed, because of the education or experience 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 education and experience, the reasons given for the opinion, and all the other evidence in the case.
See Fed. R. Evid. 702-05.
According to Federal Rule of Evidence 702, "[t]he purpose of expert testimony is to ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ by providing opinions on ‘scientific, technical, or other specialized knowledge.’ " Wagner v. County of Maricopa, 701 F.3d 583, 589 (9th Cir.2012) (quoting Fed. R. Evid. 702). Under Federal Rule of Evidence 703, an expert’s opinion must be based on facts or data in the case that the expert has been made aware of or personally observed. Fed. R. Evid. 703. The facts and data need not be admissible so long as experts in the particular field would reasonably rely on such facts and data. Id.
This instruction avoids labeling the witness as an "expert." If the court refrains from designating the witness as 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.’" See 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 (as amended in 2000) 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.
2.14 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE
Certain charts and summaries not admitted into 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. 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.
This instruction applies only when the charts and summaries are not admitted into evidence and are used for demonstrative purposes. Demonstrative materials used only as testimonial aids should not be permitted in the jury room or otherwise used by the jury during deliberations. See United States v. Wood, 943 F.2d 1048, 1053-54 (9th Cir.1991)(citing United States v. Soulard, 730 F.2d 1292, 1300 (9th Cir.1984)); see also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013).
2.15 CHARTS AND SUMMARIES RECEIVED IN EVIDENCE
Certain charts and summaries [may be] [have been] admitted into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the testimony or other admitted evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.
This instruction applies when the charts and summaries are received into evidence. See United States v. Anekwu, 695 F.3d 967, 981 (9th Cir.2012)("[T]he proponent of a summary must demonstrate the admissibility of the underlying writings or records summarized, as a condition precedent to introduction of the summary into evidence under [Fed. R. Evid. Evid.] 1006.") (quoting United States v. Johnson, 594 F.2d 1253, 1257 (9th Cir.1979)); United States v. Rizk, 660 F.3d 1125, 1130-31 (9th Cir.2011); see also Fed. R. Evid. 1006; Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013). This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.
2.16 EVIDENCE IN ELECTRONIC FORMAT
Those exhibits received in evidence that are 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. You may request a paper copy of any exhibit received in evidence by sending a note through the [clerk] [bailiff].) If you need additional equipment or supplies 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. 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] 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 the 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 ensure 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 the court 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 either the court has ordered these procedures or the parties have agreed to the availability of electronic display devices in the jury room and to the procedures set forth in the instruction. If the parties’ agreement is in the form of a written stipulation, the stipulation should be subject to approval by the judge and entered as an order. The following are possible provisions in such a stipulation:
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 arrange to load images of the admitted exhibits onto a hard drive in "PDF" format. (This format is meant to assure maximum security.) They will ensure that the hard drive contains only such items and nothing else.
3. The parties jointly 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 ensure their accuracy. Unless a party objects before the jury retires to deliberate, that party waives all objections to the materials and equipment submitted to the jury.
5. The parties will 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.
If the jury encounters a technical problem after it has begun to deliberate, the jury should communicate that issue in writing to the court. The technician may 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 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 developed charts, summaries, vote tallies or other indicia of their deliberations, or if they wrote 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.) The Committee suggests that in the event 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 him or her not to disclose whatever he or she sees or hears 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 while you are out of the deliberation room on a break. Please do not allow any materials reflecting any aspect of your deliberations to be visible during the technician’s presence.
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)