Number range CHAPTER **PATTERN CRIMINAL**

**JURY INSTRUCTIONS**

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**Chapter 1.00**

**GENERAL PRINCIPLES**

*Table of Instructions*

**Instruction**

1.01 Introduction

1.02 Jurors' Duties

1.03 Presumption of Innocence, Burden of Proof, Reasonable Doubt

1.04 Evidence Defined

1.05 Consideration of Evidence

1.06 Direct and Circumstantial Evidence

1.07 Credibility of Witnesses

1.08 Number of Witnesses

1.09 Lawyers' Objections

**1.01 INTRODUCTION**

\(1\) Members of the jury, now it is time for me to instruct you about
the law that you must follow in deciding this case.

\(2\) I will start by explaining your duties and the general rules that
apply in every criminal case.

\(3\) Then I will explain the elements, or parts, of the crime that the
defendant is accused of committing.

\[(4) Then I will explain the defendant\'s position.\]

\(5\) Then I will explain some rules that you must use in evaluating
particular testimony and evidence.

\(6\) And last, I will explain the rules that you must follow during
your deliberations in the jury room, and the possible verdicts that you
may return.

\(7\) Please listen very carefully to everything I say.

**Use Note**

Bracketed paragraph (4) should be included only when the defendant has
raised a defense that requires some explanation, like alibi, entrapment,
insanity, duress or self-defense, or when a defense theory instruction
will be given.

**Committee Commentary 1.01**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
decided that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

This instruction is designed to give the jurors an outline of the
instructions that follow. The Committee believes that the jurors will
follow the instructions better if they are provided with explanatory
introductions and transitions.

The general organization of the jury instructions is a matter within the
trial court\'s discretion. United States v. Dunn, 805 F.2d 1275, 1283
(6th Cir.1986). The Committee suggests that instructions about case
specific evidentiary matters such as impeachment by prior convictions,
expert testimony and the like should be given after the instructions
defining the elements of the crime, not before as other circuits have
suggested. The Committee\'s rationale is that the jurors should be told
what the government must prove before they are told how special
evidentiary rules may affect their determination. This is the approach
suggested by Devitt and Blackmar, Federal Jury Practice and Instructions
(3d ed). By suggesting this approach, the Committee does not intend to
foreclose other approaches, or to suggest that the choice of one
approach over the other should give rise to an appellate issue.

Paragraph (4) of this instruction is bracketed to indicate that it
should not be used in every case. It should be included only when the
defendant has raised a defense that requires some explanation, like
alibi, entrapment, insanity, duress or self-defense, or when a defense
theory instruction will be given.

**1.02 JURORS\' DUTIES**

\(1\) You have two main duties as jurors. The first one is to decide
what the facts are from the evidence that you saw and heard here in
court. Deciding what the facts are is your job, not mine, and nothing
that I have said or done during this trial was meant to influence your
decision about the facts in any way.

\(2\) Your second duty is to take the law that I give you, apply it to
the facts, and decide if the government has proved the defendant guilty
beyond a reasonable doubt. It is my job to instruct you about the law,
and you are bound by the oath that you took at the beginning of the
trial to follow the instructions that I give you, even if you personally
disagree with them. This includes the instructions that I gave you
before and during the trial, and these instructions. All the
instructions are important, and you should consider them together as a
whole.

\[(3) The lawyers have talked about the law during their arguments. But
if what they said is different from what I say, you must follow what I
say. What I say about the law controls.\]

\(4\) Perform these duties fairly. Do not let any bias, sympathy or
prejudice that you may feel toward one side or the other influence your
decision in any way.

**Use Note**

Bracketed paragraph (3) should be included only when the lawyers have
talked about the law during their arguments. If the instructions are
given before closing arguments, the language of this paragraph should be
modified accordingly.

**Committee Commentary 1.02**

(current through December 31, 2007)

The Committee made no change in the instruction.

A panel of the Sixth Circuit quoted paragraph (4) of this instruction
and stated that it cured any confusing statements made by the district
court during voir dire. United States v. Okeezie, 1993 WL 20997 at 4,
1993 U.S. App. LEXIS 1968 at 4 (6th Cir. 1993)(unpublished).

*1991 Edition*

The jurors have two main duties. First, they must determine from the
evidence what the facts are. Second, they must take the law stated in
the court\'s instructions, apply it to the facts and decide whether the
facts prove the charge beyond a reasonable doubt. See Sparf v. United
States, 156 U.S. 51, 102-107, 15 S.Ct. 273, 39 L.Ed. 343 (1895); Starr
v. United States, 153 U.S. 614, 625, 14 S.Ct. 919, 923, 38 L.Ed. 841
(1894).

The jurors have the power to ignore the court\'s instructions and bring
in a not guilty verdict contrary to the law and the facts. Horning v.
District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185
(1920). But they should not be told by the court that they have this
power. United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir.), cert.
denied, 488 U.S. 832, 109 S.Ct. 89, 102 L.Ed.2d 65 (1988); United States
v. Avery, 717 F.2d 1020, 1027 (6th Cir.1983), cert. denied, 466 U.S.
905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984); United States v. Burkhart,
501 F.2d 993, 996-997 (6th Cir.1974), cert. denied, 420 U.S. 946, 95
S.Ct. 1326, 43 L.Ed.2d 424 (1975). They should instead be told that it
is their duty to accept and apply the law as given to them by the court.
United States v. Avery, supra at 1027.

The language in paragraph (3) regarding what the lawyers may have said
about the law is bracketed to indicate that it should not be used in
every case. It should be included only when the lawyers have talked
about the law during the trial. When the instructions are given before
closing arguments, the language of this paragraph should be modified
accordingly.

Devitt and Blackmar Instruction 11.01 concludes with the concept that
the jurors should \"seek the truth as to the facts\" from the evidence
presented. See also Devitt and Blackmar Instruction 18.01 (\"Your sole
interest is to seek the truth from the evidence in the case\"). In
United States v. Lawson, 780 F.2d 535, 545 (6th Cir.1985), the Sixth
Circuit reviewed an analogous instruction and rejected the defendant\'s
argument that it required reversal of his conviction. However, other
circuits have condemned instructions telling jurors that their basic job
is to determine which witnesses are telling the truth. See for example
United States v. Pine, 609 F.2d 106, 107-108 (3d Cir.1979), and cases
collected therein. Such instructions improperly invite the jury to
simply choose between competing versions of the facts, rather than to
decide whether the government has carried its burden of proving guilt
beyond a reasonable doubt.

**1.03 PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT**

\(1\) As you know, the defendant has pleaded not guilty to the crime
charged in the indictment. The indictment is not any evidence at all of
guilt. It is just the formal way that the government tells the defendant
what crime he is accused of committing. It does not even raise any
suspicion of guilt.

\(2\) Instead, the defendant starts the trial with a clean slate, with
no evidence at all against him, and the law presumes that he is
innocent. This presumption of innocence stays with him unless the
government presents evidence here in court that overcomes the
presumption, and convinces you beyond a reasonable doubt that he is
guilty.

\(3\) This means that the defendant has no obligation to present any
evidence at all, or to prove to you in any way that he is innocent. It
is up to the government to prove that he is guilty, and this burden
stays on the government from start to finish. You must find the
defendant not guilty unless the government convinces you beyond a
reasonable doubt that he is guilty.

\(4\) The government must prove every element of the crime charged
beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean
proof beyond all possible doubt. Possible doubts or doubts based purely
on speculation are not reasonable doubts. A reasonable doubt is a doubt
based on reason and common sense. It may arise from the evidence, the
lack of evidence, or the nature of the evidence.

\(5\) Proof beyond a reasonable doubt means proof which is so convincing
that you would not hesitate to rely and act on it in making the most
important decisions in your own lives. If you are convinced that the
government has proved the defendant guilty beyond a reasonable doubt,
say so by returning a guilty verdict. If you are not convinced, say so
by returning a not guilty verdict.

**Use Note**

Paragraph (3) should be modified when an affirmative defense is raised
which the defendant has the burden of proving, for example, insanity and
justification. In these circumstances, paragraph (3) should be changed
to explain that while the government has the burden of proving the
elements of the crime, the defendant has the burden of proving the
defense.

**Committee Commentary 1.03**

(current through December 31, 2007)

The Committee made no change in the text of the instruction. The Use
Note was changed to add justification as another example of an
affirmative defense which the defendant has the burden of proving. *See*
United States v. Brown, 367 F.3d 549, 555-56 (6^th^ Cir. 2004); *see
also* Instructions 6.04 Insanity and 6.07 Justification.

The Sixth Circuit has approved the entire 1.03 instruction as "correct."
United States v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006).

Paragraph (5) of the instruction has been quoted and approved by the
Sixth Circuit. United States v. Stewart, 306 F.3d 295, 306-07 (6th Cir.
2002); United States v. Goodlett, 3 F.3d 976, 979 (6th Cir. 1993).
*Accord*, United States v. Bond, 22 F.3d 662, 669 n.1 (6th Cir. 1994).

As to paragraph (1), instructions stating that "the purpose of an
indictment is only to cause the person named therein to be brought to
trial and to advise him of the nature of the charge or charges against
him" have been characterized as "desirable" and "customary." United
States v. Baker, 418 F.2d 851, 853 (6th Cir. 1969). If the indictment is
furnished in writing to the jury, a limiting instruction such as
Instruction 1.03(1) must be given. United States v. Smith, 419 F.3d 521,
531 (6th Cir. 2005) (omission of limiting instruction was error but not
plain error).

In Victor v. Nebraska, 511 U.S. 1 (1994), the Supreme Court held that
use of the term moral certainty did not, of itself, make the reasonable
doubt instruction unconstitutional. *Id.* at 14. This instruction does
not use and never has used any moral certainty language.

*See generally* Robert C. Power, *Reasonable and Other Doubts: The
Problem of Jury Instructions*, 67 Tenn. L. Rev. 45 (1999).

*1991 Edition*

The presumption of innocence is the \"bedrock axiomatic and elementary
principle whose enforcement lies at the foundation of the administration
of our criminal law.\" In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068,
1072, 25 L.Ed.2d 368 (1970), quoting Coffin v. United States, 156 U.S.
432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895). Although the Due Process
Clause does not necessarily require an instruction on the presumption in
state criminal trials, Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct.
2088, 2089, 60 L.Ed.2d 640 (1979), in federal trials the Supreme Court
appears to have exercised its supervisory authority to require an
instruction, at least upon request.

In Coffin v. United States, supra, the defendant appealed his federal
conviction on the ground that the trial court had refused to give any
instruction on the presumption of innocence. The government countered
that no instruction was necessary because the trial court gave a
complete instruction on the necessity of proof beyond a reasonable
doubt. Id. at 452-453, 15 S.Ct. at 402-403. The Supreme Court reversed,
holding that \"the protection of so vital and fundamental a principle as
the presumption of innocence be not denied, when requested, to any one
accused of crime.\" Id. at 460, 15 S.Ct. at 405. Accord Cochran v.
United States, 157 U.S. 286, 298-300, 15 S.Ct. 628, 633-634, 39 L.Ed.
704 (1895) (\"(C)ounsel asked for a specific instruction upon the
defendant\'s presumption of innocence, and we think it should have been
given\.... The Coffin case is conclusive \... and (requires) that the
judgment \... be (r)eversed.\").

More recently, in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56
L.Ed.2d 468 (1978), Justice Stevens, joined by Justice Rehnquist,
dissented from the Court\'s holding that the failure of a state court to
instruct on the presumption violated due process. In doing so, however,
Justice Stevens carefully distinguished between state and federal
trials, and unequivocally stated: \"In a federal court it is reversible
error to refuse a request for a proper instruction on the presumption of
innocence.\" Id. at 491, 98 S.Ct. at 1937.

The Sixth Circuit has not directly addressed this question. But in
strong dictum one panel has said: \"Jury instructions concerning the
presumption of innocence and proof beyond a reasonable doubt are
fundamental rights possessed by every citizen charged with a crime in
these United States.\" United States v. Hill, 738 F.2d 152, 153 (6th
Cir.1984).

The Supreme Court has provided some general guidance about what an
instruction on the presumption of innocence should say, but without
mandating any particular language. The Court has said that the
presumption of innocence is not evidence. Nor is it a true presumption
in the sense of an inference drawn from other facts in evidence.
Instead, it is \"an \'assumption\' that is indulged in the absence of
contrary evidence.\" Taylor v. Kentucky, supra, 436 U.S. at 483-484 n.
12, 98 S.Ct. at 1933-1934 n. 12. It is a \"shorthand description of the
right of the accused to remain inactive and secure, until the
prosecution has taken up its burden and produced evidence and effected
persuasion.\" Id. Its main purpose is to \"purge\" any suspicions the
jurors may have arising from \"official suspicion, indictment (or)
continued custody,\" and to emphasize to the jurors that their decision
must be based \"solely on the \... evidence introduced at trial.\" Id.
at 484-486, 98 S.Ct. at 1934-1935.

Although not necessarily approving the particular language of the
defendant\'s requested instruction in Taylor, the Supreme Court did
quote language from that instruction which told the jurors that although
accused, the defendant began the trial with \"a clean slate,\" and that
the jurors could consider \"nothing but legal evidence\" in support of
the charge. The Court then said that this language appeared \"well
suited to forestalling the jury\'s consideration of extraneous matters,
that is, to perform the purging function described \... above.\" Id. at
488 n. 16, 98 S.Ct. at 1936 n. 16.

Subsequent Supreme Court cases have repeated that the purpose of the
presumption is to purge jurors\' suspicions arising from extraneous
matters, and to admonish them to decide the case solely on the evidence
produced at trial. Carter v. Kentucky, 450 U.S. 288, 302 n. 19, 101
S.Ct. 1112, 1120 n. 19, 67 L.Ed.2d 241 (1981); Bell v. Wolfish, 441 U.S.
520, 533, 99 S.Ct. 1861, 1870, 60 L.Ed.2d 447 (1979). Sixth Circuit
decisions echo this general view. See Whiteside v. Parke, 705 F.2d 869,
871 (6th Cir.1983) (\"the presumption \... protect(s) a defendant\'s
constitutional right \... to be judged solely on the evidence presented
at trial\"), cert. denied, 464 U.S. 843, 104 S.Ct. 141, 78 L.Ed.2d 133
(1983). Instruction 1.04 defines what is and is not evidence, and
contains a strong admonition that the jurors must base their decision
only on the evidence produced at trial.

With regard to the indictment, instructions telling the jury that \"the
indictment itself is not evidence of guilt\" have been characterized by
the Sixth Circuit as \"a correct principle of criminal law.\" Garner v.
United States, 244 F.2d 575, 576 (6th Cir.), cert. denied, 355 U.S. 832,
78 S.Ct. 47, 2 L.Ed.2d 44 (1957). Similarly, instructions stating that
\"the purpose of an indictment is only to cause the person named therein
to be brought to trial and to advise him of the nature of the charge or
charges against him\" have been characterized as \"desirable\" and
\"customary.\" United States v. Baker, 418 F.2d 851, 853 (6th Cir.1969),
cert. denied 397 U.S. 1015, 90 S.Ct. 1248, 25 L.Ed.2d 429 (1970). And in
Hammond v. Brown, 323 F.Supp. 326, 342 (N.D.Ohio 1971), aff\'d, 450 F.2d
480 (6th Cir.1971), the district court characterized as \"the law\" the
principle that \"an indictment is merely an accusation of crime, and
\... is neither evidence of guilt nor does it permit an inference of
guilt.\"

With regard to the presumption itself, several Sixth Circuit cases
dealing with the extent to which a district judge must voir dire
prospective jurors shed some further light on what the instructions
should say. In United States v. Blount, 479 F.2d 650, 651 (6th
Cir.1973), the Sixth Circuit reversed the defendant\'s conviction based
on the district court\'s refusal to ask whether the jurors could accept
the legal principle that \"a defendant is presumed to be innocent, has
no burden to establish his innocence, and is clothed throughout the
trial with the presumption.\" Similarly, in United States v. Hill, 738
F.2d 152, 154 (6th Cir.1984), the Sixth Circuit said that a challenge
for cause would have to be sustained if a juror indicated that he could
not accept the proposition that \"a defendant is presumed to be innocent
despite the fact that he has been accused in an indictment.\" And in
Hammond v. Brown, supra, 323 F.Supp. at 342, the district court
characterized as an \"essential (voir dire) question\" whether the
jurors could accept the principle that \"a man is presumed innocent
unless and until he is proved guilty by evidence beyond a reasonable
doubt.\"

Two decisions have identified language that should not be used. In
Williams v. Abshire, 544 F.Supp. 315, 319 (E.D.Mich.1982), aff\'d, 709
F.2d 1512 (6th Cir.1983), a state court included in its instructions
language that the presumption \"doesn\'t mean necessarily that he is
innocent, but you are duty bound to give him that presumption,\" and
language that \"(n)ow we know that some defendants are not innocent of
course.\" Although the district court denied the defendant\'s habeas
petition, it characterized this language as \"open to criticism.\" In
Lurding v. United States, 179 F.2d 419, 422 (6th Cir.1950), the Sixth
Circuit characterized as \"inept phrasing\" language that a defendant is
presumed innocent \"until such time as the proof produced by the
government establishes \... guilt.\" The court expressed the fear that
such language might be misinterpreted to mean that guilt is established
at the conclusion of the government\'s proofs, unless the defendant
proves otherwise.

The Due Process Clause requires that the government bear the burden of
proving every element of the crime charged beyond a reasonable doubt. In
re Winship, supra, 397 U.S. at 364, 90 S.Ct. at 1072. This means that
the prosecution must present evidence sufficient to overcome the
presumption of innocence and convince the jurors of the defendant\'s
guilt. Agnew v. United States, 165 U.S. 36, 50-51, 17 S.Ct. 235, 241, 41
L.Ed. 624 (1896); Coffin v. United States, supra, 156 U.S. at 458-459,
15 S.Ct. at 404-405. \"The defendant is presumed to be innocent \...
until he is proven guilty by the evidence\.... This presumption remains
with the defendant until (the jurors) are satisfied of (his) guilt
beyond a reasonable doubt.\" Agnew v. United States, supra, 165 U.S. at
51, 17 S.Ct. at 241.

Early Supreme Court cases contained broad statements that the burden of
proof rests on the government throughout the trial, and that the burden
is never on the accused to prove his innocence. E.g., Davis v. United
States, 160 U.S. 469, 487, 16 S.Ct. 353, 40 L.Ed. 499 (1895). Later
cases have tempered these statements to the extent of recognizing that
the Due Process Clause does not forbid placing the burden of proving an
affirmative defense on the defendant. Martin v. Ohio, 480 U.S. 228, 107
S.Ct. 1098, 94 L.Ed.2d 267 (1987); Patterson v. New York, 432 U.S. 197,
97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Rivera v. Delaware, 429 U.S. 877,
97 S.Ct. 226, 50 L.Ed.2d 160 (1976). See for example 18 U.S.C. s 17(b)
(\"The defendant has the burden of proving the defense of insanity by
clear and convincing evidence.\") When a true affirmative defense like
insanity is raised, paragraph (3) must be modified to explain that while
the prosecution has the burden of proving the elements of the crime, the
defendant has the burden of proving the affirmative defense.

Some instructions recommended by Sixth Circuit decisions include
language that the burden of proof \"never shifts\" to the defendant.
E.g., United States v. Hart, 640 F.2d 856, 860 n. 3 (6th Cir.1981),
cert. denied, 451 U.S. 992, 101 S.Ct. 2334, 68 L.Ed.2d 853 (1981). The
Seventh Circuit has criticized this language as \"a legal concept
foreign to most laymen which might only confuse jurors and detract from
the main thrust of the instruction that the burden of proof lies with
the government.\" See Seventh Circuit Instruction 2.06 and Committee
Comment. None of the five circuits that have drafted pattern
instructions have included this language. Nor has the Federal Judicial
Center. Paragraph (3) attempts to avoid this problem by simply stating
that the burden is on the prosecution \"from start to finish.\"

Some early United States Supreme Court cases appeared to indicate that
the government\'s burden of proof included the burden of negating every
reasonable theory consistent with the defendant\'s innocence. For
example, in Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708
(1887), the Supreme Court rejected the defendant\'s argument that the
district court\'s instructions failed to adequately define the term
reasonable doubt, in part on the ground that the district court had told
the jurors that if they could reconcile the evidence with any reasonable
hypothesis consistent with innocence, they should do so and find the
defendant not guilty. The Supreme Court then added that \"(t)he evidence
must satisfy the judgment of the jurors as to the guilt of the
defendant, so as to exclude any other reasonable conclusion.\" Id. at
441, 7 S.Ct. at 619.

Subsequently, however, even in cases based largely on circumstantial
evidence, the Supreme Court has specifically rejected the argument that
the government\'s burden includes the affirmative duty to exclude every
reasonable hypothesis except that of the defendant\'s guilt. Holland v.
United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137-138, 99 L.Ed.
150 (1954). Accord Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct.
2781, 2792, 61 L.Ed.2d 560 (1979) (\"(T)he Court has rejected (this
theory) in the past (citing Holland) (and) (w)e decline to adopt it
today.\") The \"better rule\" is that \"where the jury is properly
instructed on the standards for reasonable doubt, such an additional
instruction on circumstantial evidence is confusing and incorrect.\"
Holland, supra, at 139-140, 75 S.Ct. at 137-138. \"If the jury is
convinced beyond a reasonable doubt, we can require no more.\" Id. at
140, 75 S.Ct. at 138.

Although some earlier Sixth Circuit cases appeared to require the
government to disprove every reasonable hypothesis except that of guilt,
see, e.g., United States v. Campion, 560 F.2d 751, 754 (6th Cir.1977);
United States v. Wages, 458 F.2d 1270, 1271 (6th Cir.1972), a long line
of more recent cases has consistently rejected any such requirement.
E.g., United States v. Reed, 821 F.2d 322, 325 (6th Cir.1987); United
States v. Townsend, 796 F.2d 158, 161 (6th Cir.1986); United States v.
Vannerson, 786 F.2d 221, 225 (6th Cir.1986), cert. denied, 476 U.S.
1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986); Maupin v. Smith, 785 F.2d
135, 140 (6th Cir.1986); United States v. Stone, 748 F.2d 361, 362-363
(6th Cir.1984), cert. denied, \_\_\_ U.S. \_\_\_, 111 S.Ct. 71, 112
L.Ed.2d 45 (1990).

Devitt and Blackmar Instruction 11.14 on Burden of Proof and Reasonable
Doubt concludes with the statement that \"(i)f the jury views the
evidence \... as reasonably permitting either of two conclusions\--one
of innocence, the other of guilt\--the jury should of course adopt the
conclusion of innocence.\" The Ninth Circuit has disapproved this kind
of instruction, characterizing it as \"one of innumerable variations of
the theme that circumstantial evidence must exclude every hypothesis but
that of guilt.\" United States v. Sukumolachan, 610 F.2d 685, 688 (9th
Cir.1980). In United States v. Cooper, 577 F.2d 1079, 1085 (6th
Cir.1978), cert. denied, 439 U.S. 868, 99 S.Ct. 868, 58 L.Ed.2d 179
(1978), the Sixth Circuit reviewed a defense request for a similar
instruction, and rejected the defendant\'s argument that the instruction
should have been given. The Sixth Circuit stated that such an
instruction \"poses a likelihood of needless confusion and \... closely
resembles (the) one expressly rejected by the Supreme Court (in
Holland).\" Based on these cases, Instruction 1.03 omits this concept
altogether.

One other Sixth Circuit decision has identified some potentially
troublesome language. In United States v. Buffa, 527 F.2d 1164 (6th
Cir.1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1668, 48 L.Ed.2d 177
(1976), the district court instructed, without objection, that although
it was necessary for the government to prove every element of the crime
charged beyond a reasonable doubt, it was not necessary that each
\"subsidiary fact\" be proved beyond a reasonable doubt. The district
court did not define the term \"subsidiary fact.\" Although affirming on
the ground that this was not plain error, the Sixth Circuit
characterized this as \"opening up the possibility that the jury (would
be) misled or confused.\" Id. at 1165.

The reasonable doubt standard represents \"a fundamental value
determination of our society that it is far worse to convict an innocent
man than to let a guilty man go free.\" In re Winship, supra, 397 U.S.
at 372, 90 S.Ct. at 1076 (Harlan, J., concurring). Accord Francis v.
Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344
(1985). The purpose of the reasonable doubt standard is to reduce the
risk of an erroneous conviction: \"There is always in litigation a
margin of error, representing error in factfinding, which both parties
must take into account. Where one party has at stake an interest of
transcending value\--as a criminal defendant his liberty\--this margin
of error is reduced as to him by the process of placing on the other
party the burden of \... persuading the factfinder at the conclusion of
the trial of his guilt beyond a reasonable doubt.\" In re Winship, supra
at 364.

Despite repeated characterizations of the reasonable doubt standard as
\"vital\", \"indispensable\" and \"fundamental,\" see Winship, supra at
363-364, 90 S.Ct. at 1072-1073; Jackson v. Virginia, supra, 443 U.S. at
317, 99 S.Ct. at 2788, the Supreme Court has been ambivalent about
whether and to what extent the term \"reasonable doubt\" should be
defined. On the one hand, the Court has stated on three occasions that
\"attempts to explain the term \'reasonable doubt\' do not usually
result in making it any clearer to the minds of the jury.\" Holland v.
United States, supra, 348 U.S. at 140, 75 S.Ct. at 137; Dunbar v. United
States, 156 U.S. 185, 199, 15 S.Ct. 325, 330, 39 L.Ed. 390 (1894); Miles
v. United States, 103 U.S. (13 Otto) 304, 312, 26 L.Ed. 481 (1880). On
the other hand, the Court has said that \"in many instances, especially
where the case is at all complicated, some explanation or illustration
of the rule may aid in its full and just comprehension.\" Hopt v. Utah,
supra, 120 U.S. at 440, 7 S.Ct. at 618. And in several other cases, the
Court has quoted some rather lengthy explanations of the term without
criticism. See for example Wilson v. United States, 232 U.S. 563,
569-570, 34 S.Ct. 347, 349-350, 58 L.Ed. 728 (1913); Holt v. United
States, 218 U.S. 245, 254, 31 S.Ct. 2, 6-7, 54 L.Ed. 1021 (1910); Agnew
v. United States, supra, 165 U.S. at 51, 17 S.Ct. at 241.

Some Sixth Circuit decisions have sustained state criminal convictions
against constitutional attacks based on the trial court\'s failure to
define the term reasonable doubt. See Whiteside v. Parke, supra, 705
F.2d at 870-873. Other Sixth Circuit decisions have noted in dicta the
Supreme Court\'s statement that attempts to define reasonable doubt do
not usually make the term more understandable. See United States v.
Releford, 352 F.2d 36, 41 (6th Cir.1965), cert. denied, 382 U.S. 984, 86
S.Ct. 562, 15 L.Ed.2d 473 (1966). But no Sixth Circuit decisions
reviewing federal criminal convictions have explicitly discouraged or
condemned instructions defining reasonable doubt, as some other circuits
have done. See United States v. Ricks, 882 F.2d 885, 894 (4th Cir.1989),
cert. denied, \_\_\_ U.S. \_\_\_, 110 S.Ct. 846, 107 L.Ed.2d 841 (1990),
United States v. Marquardt, 786 F.2d 771, 784 (7th Cir.1986). See also
United States v. Nolasco, 926 F.2d 869 (9th Cir.1991) (en banc) (the
decision whether to define reasonable doubt should be left to the trial
court\'s sound discretion), and United States v. Olmstead, 832 F.2d 642,
646 (1st Cir.1987) (an instruction that uses the words reasonable doubt
without further defining them is adequate), cert. denied, 486 U.S. 1009,
108 S.Ct. 1739, 100 L.Ed.2d 202 (1988).

Instead, Sixth Circuit decisions have rather consistently proceeded on
the assumption that some definition should be given, with the only real
question being what the definition should say. See for example United
States v. Mars, 551 F.2d 711, 716 (6th Cir.1977); United States v.
Christy, 444 F.2d 448, 450 (6th Cir.), cert. denied, 404 U.S. 949, 92
S.Ct. 293, 30 L.Ed.2d 266 (1971); Ashe v. United States, 288 F.2d 725,
730 (6th Cir.1961). And in United States v. Hart, supra, 640 F.2d at
860-861 (6th Cir.1981), the Sixth Circuit recommended two rather lengthy
definitions as \"much better\" than the shorter instruction given by the
district court.

Supreme Court decisions provide a substantial amount of guidance on what
instructions on reasonable doubt should say, some of it rather detailed.
The Court has said that proof beyond a reasonable doubt does not mean
proof to an \"absolute certainty\" or proof beyond all \"possible\"
doubt. Hopt v. Utah, supra, 120 U.S. at 439-440, 7 S.Ct. 614.
\"(S)peculative minds may in almost every \... case suggest
possibilities of the truth being different from that established by the
most convincing proof \... (but) (t)he jurors are not to be led away by
speculative notions as to such possibilities.\" Id. at 440, 7 S.Ct. at
618-619.

In dictum, the Supreme Court has described the state of mind the jurors
must reach as \"a subjective state of near certitude.\" Jackson v.
Virginia, supra, 443 U.S. at 315, 99 S.Ct. at 2786. Accord Johnson v.
Louisiana, 406 U.S. 356, 360, 92 S.Ct. 1620, 1623, 32 L.Ed.2d 152
(1972); In re Winship, supra, 397 U.S. at 364, 90 S.Ct. at 1072.

The Supreme Court has approved the concept that a reasonable doubt is
\"one based on reason,\" Jackson v. Virginia, supra, 443 U.S. at 317, 99
S.Ct. at 2788, and has noted with apparent approval that numerous cases
have defined a reasonable doubt as one \"based on reason which arises
from the evidence or lack of evidence.\" Johnson v. Louisiana, supra,
406 U.S. at 360, 92 S.Ct. at 1023. The Court has also approved the
analogy that a reasonable doubt is one that would cause reasonable
persons to \"hesitate to act\" in matters of importance in their
personal lives. Holland v. United States, supra, 348 U.S. at 140, 75
S.Ct. at 137, citing Bishop v. United States, 107 F.2d 297, 303
(D.C.Cir.1939). Accord Hopt v. Utah, supra, 120 U.S. at 441, 7 S.Ct. at
619.

The Supreme Court has also disapproved or cast doubt on several
concepts. In Hopt v. Utah, supra at 440, 7 S.Ct. at 618, the Court said
that \"the words \'to a reasonable and moral certainty\' add nothing to
the words \'beyond a reasonable doubt\' (and) may require explanation as
much as the other.\" In Cage v. Louisiana, 498 U.S. \_\_\_, 111 S.Ct.
328, 329-330, 112 L.Ed.2d 339, 342 (1990), disapproved of on other
grounds, Estelle v. McGuire, 502 U.S. 62, 73 n.4 (1991), the Court held
that instructions defining a reasonable doubt as \"an actual substantial
doubt\" and as one that would give rise to a \"grave uncertainty\" were
reversibly erroneous. See also Taylor v. Kentucky, supra, 436 U.S. at
488, 98 S.Ct. at 1936, where the Court quoted the trial court\'s
instruction defining a reasonable doubt as \"a substantial doubt, a real
doubt,\" and then said \"(t)his definition, though perhaps not in itself
reversible error, often has been criticized as confusing.\" In Holland
v. United States, supra, 348 U.S. at 140, 75 S.Ct. at 137 the Court said
that the language \"hesitate to act\" should be used instead of the
language \"willing to act upon.\" In Harris v. Rivera, 454 U.S. 339,
347, 102 S.Ct. 460, 465, 70 L.Ed.2d 530 (1981), the Court indicated that
a reasonable doubt may exist even if the factfinder cannot articulate
the reasons on which the doubt is based.

Sixth Circuit decisions provide further guidance. Although not
necessarily condemning the \"willing to act\" language as reversible
error, Sixth Circuit cases have expressed a preference for the
\"hesitate to act\" language, see United States v. Mars, supra, 551 F.2d
at 716, or for equivalent language combining the two concepts to state
that proof beyond a reasonable doubt is \"proof of such a convincing
character that a reasonable person would not hesitate to rely and act
upon it in the most important of his own affairs.\" United States v.
Hart, supra, 640 F.2d at 860 n. 3.

In the context of reviewing state court convictions, the Sixth Circuit
has upheld against constitutional attacks instructions like those
criticized by the Supreme Court in Taylor v. Kentucky, supra, 436 U.S.
at 488, 98 S.Ct. at 1936, which define a reasonable doubt as \"a
substantial doubt, a real doubt.\" Payne v. Smith, 667 F.2d 541, 547
(6th Cir.1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1983, 72 L.Ed.2d
449 (1982); Hudson v. Sowders, 510 F.Supp. 124, 128 (W.D.Ky.1981),
aff\'d, 698 F.2d 1220 (6th Cir.1982). But in the context of reviewing
federal convictions, use of the term \"substantial doubt\" has been
characterized as \"unfortunate\" and as potentially presenting \"an
issue of some magnitude.\" United States v. Christy, supra, 444 F.2d at
450.

The Sixth Circuit has also criticized language suggesting that the
jurors must be \"convinced\" that a reasonable doubt exists in order to
acquit, Cutshall v. United States, 252 F.2d 677, 679 (6th Cir.1958)
(potentially burden shifting), and language stating that if the jurors
believe the government\'s evidence, then the defendant is guilty.
Lurding v. United States, 179 F.2d 419, 422 (6th Cir.1950)
(\"unfortunate phrasing\").

In United States v. Hawkins, 822 F.2d 1089 (6th Cir.1987), the district
court instructed that proof beyond a reasonable doubt is proof that
leaves the jurors \"firmly convinced\" of the defendant\'s guilt. The
Sixth Circuit held that this was not plain error, and stated that two
other circuits had upheld use of this language as \"a valid reasonable
doubt instruction,\" citing United States v. Hunt, 794 F.2d 1095,
1100-1101 (5th Cir.1986), and United States v. Bustillo, 789 F.2d 1364,
1368 (9th Cir.1986) in support. But these two cases are much more
limited than this statement implies. In Hunt, all the Fifth Circuit said
was that the \"firmly convinced\" language seemed little different than
\"a real doubt,\" a definition which earlier Fifth Circuit decisions had
approved. And in Bustillo, all the Ninth Circuit did was to hold that
the \"firmly convinced\" language was not plain error.

With regard to the concept that a reasonable doubt may be based on
either the evidence or a lack of evidence, see Johnson v. Louisiana,
supra, 406 U.S. at 360, 92 S.Ct. at 1623, the Sixth Circuit has refused
to reverse based on the failure to specifically include the words \"want
of evidence\" in a reasonable doubt definition, noting that when read as
a whole, the instructions made clear that a reasonable doubt could arise
from a lack of evidence. Ashe v. United States, 288 F.2d 725, 730 (6th
Cir.1961).

In United States v. Hart, supra, 640 F.2d at 859-861, the Sixth Circuit
reviewed the following district court instruction:

\"You have heard a lot about reasonable doubt. Reasonable doubt is a
doubt founded in reason, and arising from the evidence. Not a mere
hesitation of the mind to pronounce guilt because of the punishment that
may follow. The punishment, if any, is for the Court. Not a mere
capricious doubt or hesitancy of the mind to say this man did so and so,
but it must be a doubt founded in reason and arising from the evidence,
and you can\'t go outside the evidence that you have heard and seen in
this case to make any kind of determination.\" Id. at 859.

Although the Sixth Circuit ultimately decided that this instruction did
not require reversal, it said that \"we think \... it would have been
much better if the district judge had given the charge offered by either
the defense or the government.\" Id. at 860. The Sixth Circuit then went
on to say that \"(b)oth of those instructions (which are similar)
provide a much better definition of reasonable doubt than the
instruction actually given and also define more clearly the
government\'s burden of proving absence of reasonable doubt.\" Id. at
860-861. The instruction offered by the defense in Hart stated:

\"The indictment or formal charge against a defendant is not evidence of
guilt. The defendant is at present presumed innocent. The government has
the burden of proving him guilty beyond a reasonable doubt, and if it
fails to do so you must acquit him. It is not required that the
government prove guilt beyond all possible doubt. The test is one of
reasonable doubt. A reasonable doubt is doubt based upon a reason and
common sense\--the kind of doubt that would make a reasonable person
hesitate to act. It exists as a real doubt based upon reason and common
sense after careful and impartial consideration of all the evidence in
the case. The jury will remember that a defendant is never to be
convicted on mere suspicion or conjecture. The burden is always upon the
prosecution to prove guilt beyond a reasonable doubt. This burden never
shifts to a defendant; for the law never imposes upon a defendant in a
criminal case the burden of calling any witnesses or producing any
evidence. So if the jury, after careful and impartial consideration of
all the evidence in the case, is left with a reasonable doubt that a
defendant is guilty of the charge, it must acquit.\" Id. at 860 n. 3.

The instruction offered by the government in Hart stated:

\"The law presumes a defendant to be innocent of crime. Thus, a
defendant, although accused, begins trial with a \"clean slate\"\--with
no evidence against him. And the law permits nothing but legal evidence
presented before the jury to be considered in support of any charge
against the accused. So the presumption of innocence alone is sufficient
to acquit a defendant, unless the jurors are satisfied beyond a
reasonable doubt of the defendant\'s guilt after careful and impartial
consideration of all the evidence in the case. It is not required that
the government prove guilt beyond all possible doubt. The test is one of
reasonable doubt. A reasonable doubt is a doubt based upon reason and
common sense\--the kind of doubt that would make a reasonable person
hesitate to act. Proof beyond a reasonable doubt must, therefore, be
proof of such a convincing character that a reasonable person would not
hesitate to rely and act upon it in the most important of his own
affairs. The jury will remember that a defendant is never to be
convicted on mere suspicion or conjecture. The burden is always upon the
prosecution to prove guilt beyond a reasonable doubt. This burden never
shifts to a defendant, for the law never imposes upon a defendant in a
criminal case the burden or duty of calling any witnesses or producing
any evidence. So, if the jury, after careful and impartial consideration
of all the evidence in the case, has a reasonable doubt that a defendant
is guilty of the charge, it must acquit. If the jury views the evidence
in the case as reasonably permitting either of two conclusions\--one of
innocence, the other of guilt\--the jury should of course adopt the
conclusion of innocence.\" Id. at 860 n. 3.

Most other pattern instructions agree that the jurors should be told
about the effect of the government\'s failure to prove guilt beyond a
reasonable doubt. But there is some disagreement over the language that
should be used. The majority of pattern instructions state that the jury
\"must\" find the defendant not guilty, or that it is \"your duty\" to
do so. See Fifth Circuit Instruction 1.06, Eighth Circuit Instruction
3.09, Ninth Circuit Instruction 3.03, Eleventh Circuit Basic
Instructions 2.1 and 2.2, and Federal Judicial Center Instruction 21.
This is in accord with the instructions offered by both the defense and
the prosecution in United States v. Hart, supra, 640 F.2d at 860 n. 3.
The Seventh Circuit stands alone in recommending language saying that
the jury \"should\" find the defendant not guilty. See Seventh Circuit
Instruction 6.01.

There is more disagreement over whether, and to what extent, the jurors
should be told about the effect of the government successfully proving
guilt beyond a reasonable doubt. Neither of the instructions offered by
the parties in Hart mentioned this subject at all. Seventh Circuit
Instruction 6.01 states that the jury \"should\" find the defendant
guilty. Fifth Circuit Instruction 1.06 and Eleventh Circuit Basic
Instruction 3 state that \"If you are convinced that the (defendant) has
been proved guilty beyond a reasonable doubt, say so.\" Ninth Circuit
Instruction 3.03 states that it is \"your duty\" to find the defendant
guilty. Federal Judicial Center Instruction 21 states that \"you must
find (the defendant) guilty.\" And Eighth Circuit Instruction 3.09 does
not specifically address this concept at all.

As previously explained in the Commentary to Instruction 1.02, even
though jurors have the power to acquit despite the existence of evidence
proving guilt beyond a reasonable doubt, Sixth Circuit decisions clearly
hold that the court\'s instructions should not tell the jurors about
this. See United States v. Avery, 717 F.2d 1020, 1027 (6th Cir.1983),
cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984);
United States v. Burkhart, 501 F.2d 993, 996-997 (6th Cir.1974), cert.
denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975). \"The law of
jury nullification \... seems not to require or permit a judge to tell
the jury that it has the right to ignore the law.\" Burkhart, supra at
997 n. 3. Instructions like Seventh Circuit Instruction 6.01 stating
only that the jurors \"should\" find the defendant guilty if the
government has proven guilt beyond a reasonable doubt may imply that the
jurors have a choice, and implicitly invite juror nullification,
contrary to the spirit, if not the letter of the above authorities.

In the absence of any definitive Sixth Circuit authority, Instruction
1.03 takes a middle course by adopting the \"say so\" approach
recommended by the Fifth and Eleventh Circuits.

**1.04 EVIDENCE DEFINED**

\(1\) You must make your decision based only on the evidence that you
saw and heard here in court. Do not let rumors, suspicions, or anything
else that you may have seen or heard outside of court influence your
decision in any way.

\(2\) The evidence in this case includes only what the witnesses said
while they were testifying under oath; the exhibits that I allowed into
evidence; the stipulations that the lawyers agreed to; and the facts
that I have judicially noticed.

\(3\) Nothing else is evidence. The lawyers\' statements and arguments
are not evidence. Their questions and objections are not evidence. My
legal rulings are not evidence. And my comments and questions are not
evidence.

\(4\) During the trial I did not let you hear the answers to some of the
questions that the lawyers asked. I also ruled that you could not see
some of the exhibits that the lawyers wanted you to see. And sometimes I
ordered you to disregard things that you saw or heard, or I struck
things from the record. You must completely ignore all of these things.
Do not even think about them. Do not speculate about what a witness
might have said or what an exhibit might have shown. These things are
not evidence, and you are bound by your oath not to let them influence
your decision in any way.

\(5\) Make your decision based only on the evidence, as I have defined
it here, and nothing else.

**Use Note**

Paragraph (2) should be tailored to delete any references to kinds of
evidence not relevant to the particular trial. If the court has taken
judicial notice of a fact, Instruction 7.19 should be given later in the
instructions.

Paragraph (4) should also be tailored depending on what has happened
during the trial.

**Committee Commentary 1.04**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit cited paragraph (3) of this instruction as a good
reminder that attorneys' closing arguments are not evidence. United
States v. Wilson, 168 F.3d 916, 924 n.6 (6th Cir. 1999).

In United States v. Griffith, 1993 WL 492299, 1993 U.S. App. LEXIS 31194
(6^th^ Cir.1993)(unpublished), a panel of the Sixth Circuit reversed a
conviction due to erroneous jury instructions on stipulations. The trial
court instructed the jury to give the stipulation "such weight as you
believe it deserves\...." 1993 WL at 2, 1993 LEXIS at 4. The panel
stated, "The law in the Sixth Circuit on the effect of a stipulation of
fact is clear: 'Stipulations voluntarily entered by the parties are
binding, both on the district court and on \[the appeals court\].'"
*Griffith,* 1993 WL at 2, 1993 LEXIS at 4*, quoting* FDIC v. St. Paul
Fire and Marine Ins. Co., 942 F.2d 1032, 1038 (6^th^ Cir. 1991).

*1991 Edition*

It is settled practice to give a general instruction defining what is
and is not evidence. See Fifth Circuit Instruction 1.07, Seventh Circuit
Instruction 1.07, Eighth Circuit Instruction 3.03, Ninth Circuit
Instructions 3.04 and 3.05, Eleventh Circuit Basic Instructions 4.1 and
4.2 and Federal Judicial Center Instructions 1 and 9.

In some cases, there may not be any stipulations, or any judicially
noticed facts. In such cases, paragraph (2) should be tailored to
eliminate the unnecessary and irrelevant language.

The strongly worded admonition in paragraph (4) regarding proffered
evidence that was rejected or stricken is based in part on Federal
Judicial Center Instructions 1 and 9, and in part on the idea that a
strongly worded admonition is necessary to counteract the jurors\'
natural curiosity and inclination to speculate about these matters. This
paragraph should be tailored to fit the particular facts of the case.
If, for example, there was no occasion during the course of the trial to
order that things the jurors saw or heard be stricken from the record,
the language in this paragraph dealing with such matters should be
omitted.

Devitt and Blackmar Instruction 11.11 includes the concept that the
evidence includes testimony and exhibits \"regardless of who may have
called (or produced) them.\" The Ninth Circuit has incorporated this
concept into its general instruction on evidence. See Ninth Circuit
Instruction 3.04. None of the other four circuits that have drafted
pattern instructions have included this concept. Nor has the Federal
Judicial Center Instructions. Instruction 1.04 simply states that
evidence includes \"what the witnesses said while they were testifying
under oath.\"

**1.05 CONSIDERATION OF EVIDENCE**

\(1\) You should use your common sense in weighing the evidence.
Consider it in light of your everyday experience with people and events,
and give it whatever weight you believe it deserves. If your experience
tells you that certain evidence reasonably leads to a conclusion, you
are free to reach that conclusion.

**Committee Commentary 1.05**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
concluded that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

Supreme Court and Sixth Circuit cases indicate that jurors should
consider the evidence in light of their own experiences, may give it
whatever weight they believe it deserves and may draw inferences from
the evidence. See Turner v. United States, 396 U.S. 398, 406-407, 90
S.Ct. 642, 646-648, 24 L.Ed.2d 610 (1970) (the jury may consider its own
store of knowledge, must assess for itself the probative force and the
weight, if any, to be accorded the evidence, and is the sole judge of
the facts and the inferences to be drawn therefrom); Holland v. United
States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954) (the
jury must use its experience with people and events in weighing the
probabilities); United States v. Jones, 580 F.2d 219, 222 (6th Cir.1978)
(the jury may properly rely upon its own knowledge and experience in
evaluating evidence and drawing inferences).

The original draft of this instruction ended with a reminder that proof
beyond a reasonable doubt was required to convict. The purpose of this
reminder was to make sure the jurors understand that although they may
draw conclusions from the facts, those conclusions, together with the
other evidence in the case, must be sufficiently compelling to prove
guilt beyond a reasonable doubt. The Committee decided to delete this
reminder as unnecessary given the repeated references to the requirement
of proof beyond a reasonable doubt in Instruction 1.03.

**1.06 DIRECT AND CIRCUMSTANTIAL EVIDENCE**

\(1\) Now, some of you may have heard the terms \"direct evidence\" and
\"circumstantial evidence.\"

\(2\) Direct evidence is simply evidence like the testimony of an
eyewitness which, if you believe it, directly proves a fact. If a
witness testified that he saw it raining outside, and you believed him,
that would be direct evidence that it was raining.

\(3\) Circumstantial evidence is simply a chain of circumstances that
indirectly proves a fact. If someone walked into the courtroom wearing a
raincoat covered with drops of water and carrying a wet umbrella, that
would be circumstantial evidence from which you could conclude that it
was raining.

\(4\) It is your job to decide how much weight to give the direct and
circumstantial evidence. The law makes no distinction between the weight
that you should give to either one, or say that one is any better
evidence than the other. You should consider all the evidence, both
direct and circumstantial, and give it whatever weight you believe it
deserves.

**Committee Commentary 1.06**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
decided that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

In Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137,
99 L.Ed. 150 (1954), the Supreme Court held that circumstantial evidence
is no different intrinsically than direct evidence. Accord United States
v. Frost, 914 F.2d 756, 762 (6th Cir.1990). See also Jackson v.
Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979)
(no special cautionary instruction should be given on the government\'s
burden of proof in circumstantial cases).

The purpose of this instruction is to define direct and circumstantial
evidence, to make clear that the jury should consider both kinds of
evidence, and to dispel the television notion that circumstantial
evidence is inherently unreliable. Four of the five circuits that have
drafted pattern instructions include a definition of direct and
circumstantial evidence, and explain that the law makes no distinction
between the two. See Fifth Circuit Instruction 1.08 Alternative B,
Seventh Circuit Instruction 3.02, Ninth Circuit Instruction 3.06 and
Eleventh Circuit Basic Instructions 4.1 and 4.2. Eighth Circuit
Instruction 1.03 does not define the two, but does include the concept
that the law makes no distinction between them.

Federal Judicial Center Instructions 1 and 9 take the position that
there is no need to define direct and circumstantial evidence because
there is no difference legally in the weight to be given the two. The
Committee rejected this approach on the ground that jurors need to be
told that they can rely on circumstantial evidence, and that to
intelligently convey this concept, some definition of circumstantial
evidence is required.

Some Sixth Circuit decisions indicate that upon request, a defendant is
entitled to an instruction that the jury may acquit him on the basis of
circumstantial evidence. See United States v. Eddings, 478 F.2d 67,
72-73 (6th Cir.1973).

**1.07 CREDIBILITY OF WITNESSES**

\(1\) Another part of your job as jurors is to decide how credible or
believable each witness was. This is your job, not mine. It is up to you
to decide if a witness\'s testimony was believable, and how much weight
you think it deserves. You are free to believe everything that a witness
said, or only part of it, or none of it at all. But you should act
reasonably and carefully in making these decisions.

\(2\) Let me suggest some things for you to consider in evaluating each
witness\'s testimony.

\(A\) Ask yourself if the witness was able to clearly see or hear the
events. Sometimes even an honest witness may not have been able to see
or hear what was happening, and may make a mistake.

\(B\) Ask yourself how good the witness\'s memory seemed to be. Did the
witness seem able to accurately remember what happened?

\(C\) Ask yourself if there was anything else that may have interfered
with the witness\'s ability to perceive or remember the events.

\(D\) Ask yourself how the witness acted while testifying. Did the
witness appear honest? Or did the witness appear to be lying?

\(E\) Ask yourself if the witness had any relationship to the government
or the defendant, or anything to gain or lose from the case, that might
influence the witness\'s testimony. Ask yourself if the witness had any
bias, or prejudice, or reason for testifying that might cause the
witness to lie or to slant the testimony in favor of one side or the
other.

\[(F) Ask yourself if the witness testified inconsistently while on the
witness stand, or if the witness said or did something (or failed to say
or do something) at any other time that is inconsistent with what the
witness said while testifying. If you believe that the witness was
inconsistent, ask yourself if this makes the witness\'s testimony less
believable. Sometimes it may; other times it may not. Consider whether
the inconsistency was about something important, or about some
unimportant detail. Ask yourself if it seemed like an innocent mistake,
or if it seemed deliberate.\]

\(G\) And ask yourself how believable the witness\'s testimony was in
light of all the other evidence. Was the witness\'s testimony supported
or contradicted by other evidence that you found believable? If you
believe that a witness\'s testimony was contradicted by other evidence,
remember that people sometimes forget things, and that even two honest
people who witness the same event may not describe it exactly the same
way.

\(3\) These are only some of the things that you may consider in
deciding how believable each witness was. You may also consider other
things that you think shed some light on the witness\'s believability.
Use your common sense and your everyday experience in dealing with other
people. And then decide what testimony you believe, and how much weight
you think it deserves.

**Use Note**

Bracketed paragraph (2)(F) should be included when a witness has
testified inconsistently, or has said or done something at some other
time that is inconsistent with the witness\'s testimony. It should be
tailored to the particular kind of inconsistency (i.e. either
inconsistent testimony on the stand, or inconsistent out-of-court
statements or conduct, or both). The bracketed failure-to-act language
should be included when appropriate.

**Committee Commentary 1.07**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit has described this instruction as "a correct statement
of the law." United States v. Chesney, 86 F.3d 564, 573 (6th Cir. 1996).
*See also* United States v. Franklin, 415 F.3d 537, 554 (6th Cir. 2005)
(approving Instruction 1.07(2)(G) as "properly la\[ying\] out the
considerations relevant to evaluating credibility\...").

*1991 Edition*

The "Anglo-Saxon tradition of criminal justice, embodied in the United
States Constitution and in federal statutes, makes jurors the judges of
the credibility of testimony offered by witnesses." United States v.
Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980).
\"It is for them, generally, and not for \... (the) courts, to say
(whether) a particular witness spoke the truth.\" Id. at 414-415, 100
S.Ct. at 636-637.

This instruction differs from other pattern instructions in two ways.
First, it includes a more extensive explanation of the concept that the
jurors, not the judge, decide questions of witness credibility. Given
the importance of the jury\'s role in assessing credibility, and the
natural inclination of jurors to be influenced by the judge, the
Committee believes that a more extensive explanation is both necessary
and appropriate.

Second, this instruction includes a more extensive explanation of the
factors the jurors may consider in assessing credibility. Most other
pattern instructions briefly list the factors without explanation. The
danger of that approach is that the factors will go by the jurors too
quickly to be retained and absorbed. Although brevity ordinarily is a
virtue, this is one area where a few extra words are worth the cost.
Assessing credibility is the sine qua non of the jury\'s function,
making a more extensive explanation of these factors justified.

Most other pattern instructions provide at least some guidance about how
to deal with inconsistent testimony, statements or conduct by a witness.
See Fifth Circuit Instruction 1.11, Eighth Circuit Instruction 1.05,
Ninth Circuit Instruction 3.07 and Eleventh Circuit Basic Instruction
6.1. See also D.C. Bar Instruction 2.11, Devitt and Blackmar Instruction
17.01 and Saltzburg and Perlman Instruction 3.04. Based on this, the
Committee decided to include bracketed paragraph (2)(F), for those cases
in which a witness has testified inconsistently, or has said or done
something at some other time that is inconsistent with the witness\'s
testimony.

Seventh Circuit Instruction 1.02 and Ninth Circuit Instruction 3.07 both
include a bracketed admonition that the defendant\'s testimony should be
judged in the same manner as that of any other witness. None of the
other sources the Committee surveyed include this kind of admonition in
their general instruction on witness credibility. Instruction 7.02B
addresses this subject in a separate instruction.

In United States v. Bryan, 591 F.2d 1161, 1163 (5th Cir.1979), cert.
denied, 444 U.S. 1071, 100 S.Ct. 1013, 62 L.Ed.2d 751 (1980), the Fifth
Circuit held that telling the jurors to consider the extent to which
each witness\'s testimony was supported or contradicted by other
evidence did not shift the burden of proof to the defendant. On the
other hand, so-called \"presumption of truthfulness\" instructions,
which tell the jurors that each witness is presumed to speak the truth
unless the evidence indicates otherwise, are reversibly erroneous. See,
e.g., United States v. Maselli, 534 F.2d 1197, 1202-1203 (6th Cir.1976).

**1.08 NUMBER OF WITNESSES**

\(1\) One more point about the witnesses. Sometimes jurors wonder if the
number of witnesses who testified makes any difference.

\(2\) Do not make any decisions based only on the number of witnesses
who testified. What is more important is how believable the witnesses
were, and how much weight you think their testimony deserves.
Concentrate on that, not the numbers.

**Use Note**

Use caution in giving this instruction when the defense has not
presented any testimony. It may draw potentially prejudicial attention
to the absence of defense witnesses.

**Committee Commentary 1.08**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
decided that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

Most of the other circuits that have drafted pattern instructions have
included some explanation about what effect the jurors should give to
the number of witnesses who testified on each side. See Fifth Circuit
Instruction 1.09, Seventh Circuit Instruction 3.28, Ninth Circuit
Instruction 3.07 and Eleventh Circuit Basic Instruction 5. A similar
consensus exists among the other sources the Committee surveyed. See
Federal Judicial Center Instruction 23, D.C. Bar Instruction 2.13,
Devitt and Blackmar Instruction 17.20 and Saltzburg and Perlman
Instruction 3.04.

In United States v. Moss, 756 F.2d 329, 334-335 (4th Cir.1985), the
defendant objected to the district court\'s number of witnesses
instruction on the ground that it drew unnecessary and potentially
prejudicial attention to the fact that the defense had not presented any
witnesses during the trial. On appeal, the Fourth Circuit held that
there was no error, but stated that district courts should refrain from
giving such an instruction when the defendant has not presented any
witnesses. Cf. Barnes v. United States, 313 A.2d 106, 110 (D.C.App.1973)
(such an instruction is not required, even upon request by the defense,
when the defense has elected not to present any witnesses).

**1.09 LAWYERS\' OBJECTIONS**

\(1\) There is one more general subject that I want to talk to you about
before I begin explaining the elements of the crime charged.

\(2\) The lawyers for both sides objected to some of the things that
were said or done during the trial. Do not hold that against either
side. The lawyers have a duty to object whenever they think that
something is not permitted by the rules of evidence. Those rules are
designed to make sure that both sides receive a fair trial.

\(3\) And do not interpret my rulings on their objections as any
indication of how I think the case should be decided. My rulings were
based on the rules of evidence, not on how I feel about the case.
Remember that your decision must be based only on the evidence that you
saw and heard here in court.

**Committee Commentary 1.09**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
decided that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

This proposed instruction covers several concepts related to lawyers\'
objections that are commonly included somewhere in the court\'s
instructions. See Seventh Circuit Instruction 1.05, Ninth Circuit
Instruction 1.06, Devitt and Blackmar Instruction 10.13, Sand and
Siffert Instruction 2-8 and Federal Judicial Center Instruction 9.