2.12 Limited Admissibility: Evidence Admitted Against Only One Defendant You (are about to hear)(just heard) (describe testimony or exhibit). You can consider (this testimony)(this exhibit) only in the case against (name). You must not consider that evidence in the case against the other defendant(s). Each defendant is entitled to have (his)(her) case decided just on the evidence which applies to (him)(her). Comment This instruction is derived from Eighth Circuit § 2.14. If requested, this instruction should be given during the trial of multiple defendants to limit the jury’s consideration of evidence admitted against only one defendant. See generally United States v. Butch, 256 F.3d 171, 176 n.4 (3d Cir. 2001) (citing with approval trial court’s instruction, based on 1A O’Malley et al., supra, § 11.09, limiting consideration of other act evidence admitted under F.R.E. 404(b) for limited purpose).
when it precluded plaintiff’s counsel from cross-examining a key witness concerning a lie on his resume. Id. at 145 n.2. The court noted that the trial court’s ruling was reviewed under an abuse of discretion standard with “substantial deference” to the trial court. The court stated that “the trial court was within its discretion to conclude that Stevens' lying on his resume, although duplicitous and wrong, was not so indicative of moral turpitude as to be particularly probative of his character for untruthfulness.” Id. This result is criticized in Graham who states that “the exercise of discretion should very rarely if ever be exercised to exclude an undisputed act of ‘lying’” such as that in Johnson. Graham § 608.4 n.5. The inquiry under Rule 608(b) should focus on the actual acts that suggested untruthfulness and not any third party action, such as suspension from a job, that resulted from those acts. See United States v. Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999). The court may preclude inquiry concerning prior acts if they are remote in time. See Johnson v. Elk Lake School District, 283 F.3d 138, 145 n.2 (3d Cir. 2002). In addition, cross-examination under Rule 608(b) may be limited by the Fifth Amendment. Rule 608(b) provides that no witness, including the accused, waives the Fifth Amendment privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. The Third Circuit appears not to have addressed this aspect of the rule.
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
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.
2.35 Discharge of Defense Counsel During Trial Even though (name of defendant) was represented by a lawyer when this trial began, (he)(she) has decided to continue the trial representing (himself)(herself) and not to use the services of a lawyer. (He)(She) has a constitutional right to do that. (His)(Her) decision has no bearing on whether (he)(she) is guilty or not guilty, and it must not affect your consideration of the case. Because (name of defendant) has decided to act as (his)(her) own lawyer, you will hear (him)(her) speak at various times during the trial. (He)(She) may make (a)(an) (opening statement and) closing argument. (He)(She) may ask questions of witnesses, make objections, and argue to the court. I want to remind you that when (name of defendant) speaks in these parts of the trial (he)(she) is acting as a lawyer in the case, and (his)(her) words are not evidence. The only evidence in the case is the testimony of witnesses under oath and exhibits admitted into evidence. Comment This instruction is derived from Eighth Circuit § 2.22 and Federal Judicial Center § 6. This instruction should be given when a defendant exercises the constitutional right under Faretta v. California, 422 U.S. 806 (1975), to waive the Sixth Amendment right to assistance of counsel and proceed pro se. In order to assure that the waiver is valid, the court should engage in a colloquy with the defendant such as the one suggested in § 1.02 of the Benchbook for U.S. District Court Judges (4th ed. 2000).