2.05 Audio/Video Recordings - Consensual You are about to hear (audio)(video) recordings of conversations with the defendant(s) made without (his)(her)(their) knowledge. These recordings were made with the consent and agreement of (name), one of the other parties to the conversations. The use of this procedure to gather evidence is lawful and the recordings may be used by either party. Comment See Sand et al., supra, 5-10. This instruction addresses the jurors’ possible concern about the legality of recordings offered in evidence. It should not be given routinely, but should be given if there is reason to believe the jury would be concerned and if it is requested by either party.
2.09 Opinion Evidence (Expert Witnesses) The rules of evidence ordinarily do not permit witnesses to state their own opinions about important questions in a trial, but there are exceptions to these rules. You will hear testimony from (state the name of the person(s) who will offer an opinion). Because of (his)(her)(their) knowledge, skill, experience, training, or education in the field of (state the witness(es)’s field), (Mr.)(Ms.)(Dr.) (name) will be permitted to offer (an) opinion(s) in that field and the reasons for (that)(those) opinion(s). The opinion(s) (this)(these) witness(es) state(s) should receive whatever weight you think appropriate, given all the other evidence in the case. In weighing this opinion testimony you may consider the witness' qualifications, the reasons for the witness' opinions, and the reliability of the information supporting the witness' opinions, as well as the other factors I will discuss in my final instructions for weighing the testimony of witnesses. You may disregard the opinion(s) entirely if you decide that (Mr.)(Ms.)(Dr.) (name)’s opinion(s) (is)(are) not based on sufficient knowledge, skill, experience, training, or education. You may also disregard the opinion(s) if you conclude that the reasons given in support of the opinion(s) are not sound, or if you conclude that the opinion(s) (is)(are) not supported by the facts shown by the
2.15 Prior Consistent Statements (F.R.E. 801(d)(1)(B)) You (just heard)(are about to hear) evidence that, before (he)(she) testified in this trial, (name) made statements that were the same as, or similar to, what (he)(she) said in the courtroom. You may consider evidence of this statement in determining the facts of this case. In addition, this evidence may help you decide whether you believe (name)’s testimony. If (name) said essentially the same thing before trial, it may be reason for you to believe (name)’s testimony in court. Comment This instruction is based on Federal Judicial Center § 34. A prior consistent statement can be offered as substantive evidence under Rule 801(d)(1)(B) of the Federal Rules of Evidence if it “is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” This instruction informs the jurors that they may use the prior consistent statement both to decide the case and to bolster the in-court testimony. Caution: This instruction should not be given routinely. The prior consistent statements are admitted without limitation, so the jury can consider them in any way it deems relevant. The significance of the prior consistent statements should generally be left to argument of counsel. However, this instruction should be included if prior inconsistent statements are admitted solely to impeach in the same trial as the prior consistent statements. This instruction is then necessary to distinguish the unlimited role of prior consistent statements from the limited role of prior inconsistent statements admitted only to impeach. See Instruction 2.16 (Impeachment of Witness - Prior Inconsistent Statement for Credibility Only).
2.17 Impeachment of Defendant’s Character Witness (F.R.E. 404, 405) If character witness testified to reputation: You heard (name of witness) testify about the defendant's reputation for (insert character trait covered by testimony). On cross-examination of (name of witness), the prosecutor asked (him)(her) some questions about whether (he)(she) had heard that (briefly describe the subject of the cross-examination on the character trait, e.g., defendant was convicted of fraud on an earlier occasion). The prosecutor was allowed to ask these questions only to test whether (name of witness) was familiar with the reputation of the defendant in the community. This is not evidence that the acts described in these questions actually occurred. You may not use the information developed by the prosecutor on this subject for any other purpose. Specifically, you may not use this information to conclude that the defendant committed the act(s) charged in the indictment or as proof that the defendant has a bad character or any propensity to commit crimes. If character witness testified to opinion: You heard (name of witness) testify about the defendant's character for (insert character trait covered by testimony). On cross-examination of (name of witness), the prosecutor asked (him)(her) some questions about whether (he)(she) knew that (briefly describe the subject of the cross-examination on the character trait, e.g., defendant was
2.22 Witness Who Has Pleaded Guilty to the Same or Related Charges You have heard evidence that (name of witness) pleaded guilty to charges arising from the events that are the subject of this trial. You must not consider (name of witness)’s guilty plea as any evidence of (name of defendant)’s guilt. (Name of witness)’s decision to plead guilty was a personal decision about (his)(her) own guilt. You should disregard (name of witness)’s guilty plea completely when considering (name of defendant)’s guilt or innocence. Instead, you may consider (name of witness)’s guilty plea only for the purpose of (select appropriate purpose): determining how much, if at all, to rely upon (his)(her) testimony; or foreclosing the suggestion that the party producing the witness was concealing evidence; or rebutting the inference that the witness was not prosecuted and that (name of defendant) was singled out for prosecution; or explaining the witness’s firsthand knowledge of the events; or rebutting the assertion that (name of witness) was acting as a government agent while engaged in the activities that formed the basis of the guilty plea. You should give (name of witness)’s testimony the weight you believe it deserves, keeping in mind that it must be considered with caution and great
2.27 Prior Statement of Defendant - Single Defendant on Trial The government has introduced evidence that the defendant (name of defendant) made a statement to (name of person who took statement). You must decide whether (name of defendant) did in fact make the statement. If you find that (name of defendant) did make the statement, then you must decide what weight, if any, you feel the statement deserves. In making this decision, you should consider all matters in evidence having to do with the statement, including those concerning (name of defendant)(himself)(herself) and the circumstances under which the statement was made. [If, after considering the evidence, you determine that a statement, was made voluntarily, you may give it such weight as you feel it deserves under the circumstances. On the other hand, if you determine that the statement was not made voluntarily, you must disregard it. In determining whether any alleged statement was made voluntarily, you should consider (name of defendant)’s age, training, education, occupation, and physical and mental condition, and (his)(her) treatment while in custody or under interrogation as shown by the evidence in the case. Also consider all other circumstances in evidence surrounding the making of the alleged statement.] Comment This instruction was derived from Seventh Circuit § 3.02 and 1A O’Malley et al., supra, § 14.03.