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 4.9, 4.10, 4.11, and 4.14) 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 the failure to give a requested accomplice instruction was prejudicial error where the accomplice’s testimony was important to the 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, the 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)), cert. denied,528 U.S. 1097 (2000). See also United States v. Rubio–Villareal, 967 F.2d 294, 300 (9th Cir.1992) (en banc) (Ninth Circuit disapproved of instructing the jury that knowledge of the presence of drugs in a vehicle may be inferred from the defendant being the driver).
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.
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.
4.2 SILENCE IN THE FACE OF ACCUSATION
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.
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.
This prior instruction recites the factual findings the court must make in order to admit into evidence silence in the face of accusation. Generally, the sufficiency of these findings by the court is not the subject of a jury instruction. The significance of the silence should be left for the jury to determine without further instructions. Where there are factual issues that relate to the instruction, it may be appropriate to give the instruction if requested by the defendant. The text of the instruction is based on judicial interpretation and application of that rule. 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).
Where 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). On the other hand, when the accusatory statement is not made by a law enforcement official or when the defendant is not in custody, the instruction may be helpful.
4.3 OTHER CRIMES, WRONGS OR ACTS OF DEFENDANT
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.]
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 ("When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.") See also Instruction 4.6 and the Comment thereto (Impeachment, Prior Conviction of Defendant), and the Comment to Instruction 2.10 (Other Crimes, Wrongs or Acts of Defendant).
4.4 CHARACTER OF DEFENDANT
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) (refusal of trial court to instruct on character of defendant was not plain error where "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).
Former Instruction 4.4 in the Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003) read as follows:
You have heard evidence of the defendant’s character for [e.g., truthfulness, peacefulness, honesty, etc.]. In deciding this case, you should consider that evidence together with and in the same manner as all the other evidence in the case.
4.5 CHARACTER OF VICTIM
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.
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, 853 (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.").
4.6 IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT
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.
See Fed. R. Evid. 609 (Impeachment by Evidence of Conviction of Crime). The court must give such a limiting instruction if requested by the defendant. Fed. R. Evid. 105 (Limited Admissibility). However, the failure of a trial court to give such an instruction sua sponte is not reversible error. United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir.1984).
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 4.3 (Other Crimes, Wrongs or Acts of Defendant).
4.7 CHARACTER OF WITNESS FOR TRUTHFULNESS
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 3.9.
Former Instruction 4.7 in the Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003) read as follows:
You have heard evidence of the character for truthfulness of [name of witness], a witness. You may consider this evidence along with other evidence in deciding whether or not to believe that witness’s testimony and how much weight to give to it.
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), 608 (Evidence of Character and Conduct of Witness) and 609 (Impeachment By Evidence of Conviction of Crime).
4.8 IMPEACHMENT EVIDENCE—WITNESS
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.
Fed. R. Evid. 608 (Evidence of Character and Conduct of Witness) and 609 (Impeachment By Evidence of Conviction of Crime) place restrictions on the use of instances of past conduct and convictions to impeach a witness, and Fed. R. Evid. 105 (Limited Admissibility) gives a defendant the right to request a limiting instruction explaining that the use of this evidence is limited to credibility of the witness.
4.9 TESTIMONY OF WITNESSES INVOLVING SPECIAL CIRCUMSTANCES—IMMUNITY, BENEFITS, ACCOMPLICE, PLEA
You have heard testimony from [name of witness], a witness who
[received immunity. That testimony was given in exchange for a promise by the government that [the witness will not be prosecuted] [the testimony will not be used in any case against the witness]];
[received [benefits] [compensation] [favored treatment] from the government in connection with this case];
[[admitted being] [was alleged to be] an accomplice to the crime charged. An accomplice is one who voluntarily and intentionally joins with another person in committing a crime];
[pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining this witness’s believability].
For [this] [these] reason[s], in evaluating the testimony of [name of witness], you should consider the extent to which or whether [his] [her] testimony may have been influenced by [this] [any of these] factor[s]. In addition, you should examine the testimony of [name of witness] with greater caution than that of other witnesses.
The instruction to consider accomplice testimony with "greater caution" is appropriate regardless of whether the accomplice’s testimony favors the defense or prosecution. United States v. Tirouda, 394 F.3d 683, 687-88 (9th Cir.2005), cert. denied, 547 U.S. 1005 (2006). The Committee recommends giving this instruction whenever it is requested.
4.10 GOVERNMENT'S USE OF UNDERCOVER AGENTS AND INFORMANTS
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, in order to investigate criminal activities. Undercover agents and informants may use false names and appearances and assume the roles of members in criminal organizations.
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). This instruction has been described as an accurate statement of the law. United States v. Carona, 630 F.3d 917, 924 (9th Cir.2011).
4.11 EYEWITNESS IDENTIFICATION
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:
(1) the capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance;
(2) whether the identification was the product of the eyewitness’s own recollection or was the result of subsequent influence or suggestiveness;
(3) any inconsistent identifications made by the eyewitness;
(4) the witness’s familiarity with the subject identified;
(5) the strength of earlier and later identifications;
(6) lapses of time between the event and the identification[s]; and
(7) the totality of circumstances surrounding the eyewitness’s identification.
Generally, the Ninth Circuit has not required a cautionary instruction regarding eyewitness testimony. See People of the Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir.1981); United States v. Cassasa, 588 F.2d 282, 285 (9th Cir.1978). Since 1989, the Committee has recommended against the giving of an eyewitness identification instruction because it believes that the general witness credibility instruction is sufficient. See, e.g., Manual of Model Criminal Jury Instructions for the Ninth Circuit, Instruction 4.13 (1989). If the district court determines that an eyewitness identification instruction is appropriate, in addition to the general witness credibility instruction, the Committee recommends that this instruction be given.
The Ninth Circuit has approved the giving of a comprehensive eyewitness jury instruction where 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) (“The district court may exercise its discretion to exclude expert testimony if it finds that . . . the trier of fact . . . [would] be better served through a . . . comprehensive jury instruction.”); United States v. Rincon, 28 F.3d 921, 925-26 (9th Cir.1994).
4.12 CHILD WITNESS
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 1.8 and 3.9.
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 the general witness credibility instruction provided the jury with adequate guidance in evaluating child’s testimony).
4.13 MISSING WITNESS
"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). The court has the discretion to give a missing witness instruction or to leave the matter to the argument of counsel. See United States v. Kojayan, 8 F.3d 1315, 1317 n.2, 1320-21 (9th Cir.1993).
"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.’" United States v. Ramirez, 714 F.3d 1134, 1137 (9th Cir.2013) (quoting United States v. Leal-Del Carmen, 697 F.3d 964, 974-75 (9th Cir.2013)). It was reversible error to deny a missing witness instruction when an alien witness was deported to Mexico by the government, knowing that the witness would testify favorably for the defense. Leal-Del Carmen, 697 F.3d at 975. See generally United States v. Tisor, 96 F.3d 370, 377 n.3 (9th Cir.1996) (quoting, without approving, a missing witness instruction).
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. Ramirez, 714 F.3d at 1139 ("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.").
4.14 OPINION EVIDENCE, EXPERT WITNESS
You have heard testimony from persons who, because of education or experience, were permitted to state opinions and the reasons for their opinions.
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. 701-05. See also United States v. Mendoza, 244 F.3d 1037, 1048 (9th Cir.2001) (instruction should be given when requested by the defendant).
4.15 SUMMARIES NOT RECEIVED IN EVIDENCE
During the trial, certain charts and summaries were shown to you in order to help explain the evidence in the case. These charts and summaries were not admitted in 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.
This instruction applies only when the charts and summaries are not admitted in 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 4.16 (Charts and Summaries in Evidence). See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013).
4.16 CHARTS AND SUMMARIES IN EVIDENCE
Certain charts and summaries have been admitted in 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.
See Fed. R. Evid. 1006.
Use this instruction when charts and summaries are admitted in evidence. If charts and summaries are not admitted in evidence, use Instruction 4.15 (Summaries Not Received in Evidence).
This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.
4.17 FLIGHT/CONCEALMENT OF IDENTITY
The Committee generally recommends against giving specific inference instructions in such areas 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).
4.18 LOST OR DESTROYED EVIDENCE
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. at 1173-74 (citing Loud Hawk, 628 F.2d at 1152). 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.