4.08 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. In this case, you heard testimony from (state the name of the person(s) who offered 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) (was)(were) permitted to offer a(n) 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 discussed in these 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
F.3d 355 (3d Cir. 2003). Conversely, a defendant who chooses not to testify may prefer not to have the jury’s attention drawn to that fact through an instruction. It is not error to give the instruction over the defendant’s objection. See Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). Nevertheless, if the defendant prefers not to have the instruction given, the better practice is to comply with the defendant’s wishes. See Lakeside, 435 U.S. at 340. The instruction contains alternative language – “a defendant” – to be used in a multi-defendant trial where some defendants testify and some do not. The instruction also contains bracketed language to be used when the defendant presents no evidence. If the defendant testifies, see Instruction 4.28 (Defendant’s Testimony).
with United States v. Bear Killer, 534 F.2d 1253, 125960 (8th Cir. 1976) (holding instruction improperly singled out defendant and was therefore error). In a decision, United States v. Jones, 2010 WL 1220960 (3d Cir. 2010), the Third Circuit rejected a challenge to such an instruction but noted that an instruction singling out the defendant’s interest is “not advisable.” In Jones, the defendant argued unsuccessfully that the trial court had “unfairly singled out [the defendant’s] testimony as potentially biased” when the court instructed the jury as follows: [t]he defendant, Chesney Jones, has taken the witness stand. You should examine and evaluate her testimony just as you would the testimony of any witness. It is for you to decide to what extent, if at all, Ms. Jones’s interest in the result of her prosecution may have affected or colored her testimony. The trial court had also given a general charge on witness credibility which called attention to the interest of both the parties in the case, The Third Circuit characterized the separate instruction concerning the defendant’s testimony as unnecessary and inadvisable, but held it was not reversible error, citing Reagan. The court also noted that other Courts of Appeals have expressed concern about similar instructions but have not held them to constitute reversible error. See also United States v. King, 2012 WL 213 0032 (3d Cir. 2012) (non-precedential) (criticizing as “inadvisable and unnecessary” and declining to endorse instruction that addressed defendant’s self-interest). In King, the court recommended giving the Model Instruction. (Revised 10/2012) 4.29 Defendant's Prior Bad Acts or Crimes (F.R.E. 404(b)) You have heard testimony that the defendant (summarize the other act evidence). This evidence of other act(s) was admitted only for (a) limited purpose(s). You may consider this evidence only for the purpose of deciding whether the defendant (describe the precise purpose or purposes for which the other act evidence was admitted: for example (Pick those of the following, or other reasons, that apply)),
conceal himself, you will determine from all of the evidence in the case. And, unless you find that he did so take flight or conceal himself, you will entirely disregard my instruction just imparted to you upon those questions. (emphasis added). The Third Circuit concluded that there was sufficient evidence to justify the trial court’s instruction to the jury on the issue of flight and that the instruction was proper and protected the rights of the defendant. United States v. Miles, 468 F.2d 482, 48990 (3d Cir. 1972) (citation omitted). See also United States v. Terry, 518 F. App'x. 125, 2013 WL 2166117 (3d Cir. 2013) (non-precedential) (holding that instruction was warranted even though officer tackled defendant as he started to flee). In United States v. Katzin, 94 F. App’x. 134, 138 (3d Cir. 2004), a decision, the Third Circuit affirmed the admissibility of flight evidence to prove consciousness of guilt when the trial court properly instructed the jury on how to weigh such evidence and approved the trial court’s instruction on the evidence, stating: We have consistently held that “evidence of a defendant’s flight after a crime has been committed is admissible to prove the defendant's consciousness of guilt.” We hold such evidence admissible as circumstantial evidence of guilt to be considered with the other facts of the case. In fact, the District Court charged the jury to consider the evidence only for proper purposes. (“Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance, if any, to be attached to such a circumstance are matters for determination by you, the jury.”). Evidence of flight is not considered inadmissible under Fed.R.Evid. 404(b). We find no error here. An instruction addressing this evidence may not be required. See United States v. Rothberg, 896 F. Supp. 450, 456 (E.D. Pa. 1995) (no instruction given addressing evidence of use of alias admissible as consciousness of guilt). (Revised 11/2013)
v. United States, 335 U.S. 469, 476 (1948). However, the Court has never held that the jury must be instructed that character evidence may raise a reasonable doubt, although Michelson includes dictum to that effect. 355 U.S. at 476. The views of the various circuits range from the position that the defendant is entitled to the instruction to the view that the instruction is improper. See Spangler v. United States, 487 U.S. 1224 (1988) (White, J., dissenting from denial of certiorari) (summarizing division of authority). In United States v. Spangler, 838 F.2d 85 (3d Cir.), cert. denied, 487 U.S. 1224 (1988), the Third Circuit held that the trial court may decline to give the “standing alone” instruction provided the court gives an instruction that “calls the jury’s attention to its duty to take character evidence into account with all of the other evidence in deciding whether the government has proved its charge beyond a reasonable doubt.” Id. at 87. Most recently, the Third Circuit addressed the character evidence instruction in a non-precedential opinion, United States v. Long Fei Lin, 104 F. App’x. 241 (3d Cir. 2004). The court stated that Spangler is dispositive on the question of the “standing alone” instruction and held that the following instruction, which “largely mirrored” the instruction approved in Spangler, was not clearly erroneous: You have heard testimony that a defendant has a good reputation in his community for being honest and law-abiding. You may consider such evidence, along with all other evidence in the case, in reaching your verdict. Evaluate such character evidence, along with all of the other evidence in this case, in deciding whether the government has proved the crime charged beyond a reasonable doubt. See also United States v. Morrow, 351 F. App’x. 649, 651 (3d Cir. 2009) (nonprecedential) (holding defendant not entitled to instruction that character evidence alone was sufficient to create reasonable doubt). (Revised 11/2010)
convicted of fraud on an earlier occasion). The prosecutor was allowed to ask these questions only to test whether (name of witness) had a good basis for (his)(her) opinion of the defendant’s character. 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. Comment See O’Malley et al., supra, § 11.15, Sand et al., supra, 5-16, and Eighth Circuit § 2.10. This instruction should be included in the concluding instructions if the prosecutor was permitted to cross-examine the defendant’s character witness concerning prior instances of the defendant’s conduct. Instruction 2.17 (Impeachment of Defendant’s Character Witness) should be given to the jury at the time of the cross-examination. Under Rule 404(a) of the Federal Rules of Evidence, a defendant is permitted to introduce evidence of good character to support the inference that the defendant did not commit the offense charged. Instruction 4.39 (Defendant’s Character Evidence) describes the role of that evidence. Rule 405(a) permits the prosecutor to cross-examine the defendant’s character witness concerning specific instances of the defendant’s conduct relating to the character trait at issue. The rules thus continue the common law practice discussed in Michelson v. United States, 335 U.S. 469 (1948), but with one difference: opinion evidence, which was prohibited at common law, is allowed under the rules. Under the Federal Rules of Evidence, the character witness may testify to either reputation or opinion. A reputation witness testifies to the defendant’s reputation for a specific trait in a specific community, based on conversations with others concerning the defendant. See