4.05 Audio/Video Recordings - Non-consensual During the trial, you heard recordings of conversations with the defendant(s) which were made without the knowledge of the parties to the conversations, but with the consent and authorization of the court. These recordings (sometimes referred to as wiretaps) were lawfully obtained. 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, 5-11. 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.
If the defendant offers evidence that must be authenticated, the same principles govern. The court must assure adequate evidence of authenticity to satisfy the rules of evidence. Even if the evidence is properly admitted, the government may argue to the jury that it is not actually authentic. Of course, the defendant has no burden of proof, but the government may persuade the jury that the defendant’s evidence has no probative value.
(Revised 2016) 4.20 Credibility of Witnesses - Testimony of Informer You have heard evidence that (name of witness) has an arrangement with the government under which (he)(she) (gets paid)(receives) (describe benefit) for providing information to the government. (Name of witness)’s testimony was received in evidence and may be considered by you. The government is permitted to present the testimony of someone who (gets paid)(receives) (describe benefit) for providing information to the government, but you should consider the testimony of (name of witness) with great care and caution. In evaluating (name of witness)’s testimony, you should consider this factor along with the others I have called to your attention. You may give the testimony such weight as you think it deserves. It is for you to determine whether or not (name of witness)’s information or testimony may have been influenced by (his)(her) arrangement with the government. Comment See Eighth Circuit § 4.06. The government may lawfully employ paid informers to assist in the investigation of crime and may call an informer as a witness at trial. See Hoffa v. United States, 385 U.S. 293, 312 (1966); United States v. Harris, 210 F.3d 165 (3d Cir. 2000). The court should instruct the jury to approach the informer’s testimony with caution. In Hoffa, the
4.27 Defendant’s Choice not to Testify or Present Evidence (Name of defendant)(A defendant) did not testify (did not present evidence) in this case. A defendant has an absolute constitutional right not to testify (or to present any evidence). The burden of proof remains with the prosecution throughout the entire trial and never shifts to the defendant. The defendant is never required to prove that he is innocent. You must not attach any significance to the fact that (name of defendant) did not testify. You must not draw any adverse inference against (him)(her) because (he)(she) did not take the witness stand. Do not consider, for any reason at all, the fact that (name of defendant)(a defendant) did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way. Comment See California Criminal Jury Instructions § 355 and § 5.21. For variations, see O’Malley et al., supra, § 15.14; First Circuit § 3.03; Sixth Circuit § 7.02A; Seventh Circuit § 3.01; and Ninth Circuit § 3.3. Under the Constitution, the defendant in a criminal case has the right to choose whether to testify and the right not to present any evidence. Neither the court nor the prosecutor may comment on the defendant’s election to remain silent at trial. See Griffin v. California, 380 U.S. 609, 614-15 (1965); Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991). But see United States v. Hasting, 461 U.S. 400, 510-11 (1983) (holding error harmless). If the defendant chooses not to testify, the defendant may also decide to request an instruction directing the jury to draw no negative inference from the defendant’s decision not to take the witness stand. The trial court must give such an instruction if requested. See Carter v. Kentucky, 450 U.S. 288, 299-303 (1981); Bruno v. United States, 308 U.S. 287, 293-94 (1939). Failure to give the requested instruction is
4.31 Consciousness of Guilt (False Exculpatory Statements) You have heard testimony that (name of defendant) made certain statements outside the courtroom to law enforcement authorities in which (he)(she) claimed that (his)(her) conduct was consistent with innocence and not with guilt. The government claims that these statements are false. If you find that (name of defendant) made a false statement in order to direct the attention of the law enforcement officers away from (himself)(herself), you may, but are not required to conclude that (name of defendant) believed that (he)(she) was guilty. It is reasonable to infer that an innocent person does not usually find it necessary to invent or fabricate an explanation or statement tending to establish (his)(her) innocence. You may not, however, conclude on the basis of this alone, that (name of defendant) is, in fact, guilty of the crime for which (he)(she) is charged. You must decide whether or not the evidence as to (name of defendant) shows that (he)(she) believed that (he)(she) was guilty, and the significance, if any, to be attached to this evidence. In your evaluation, you may consider that there may be reasons - fully consistent with innocence - that could cause a person to give a false statement that (he)(she) did not commit a crime. Fear of law enforcement, reluctance to become involved, or simple mistake may cause an innocent person to give such a statement or explanation.
(Revised 2014) 4.32 Prior Statement of Defendant - Single Defendant on Trial The government 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.]
4.36 Impeachment of Defendant - Prior Conviction (F.R.E. 609) You heard evidence that the defendant (name) was previously convicted of (a) crime(s). You may consider evidence of (his)(her) previous conviction only to decide whether to believe (name)’s testimony and how much weight to give it. That evidence does not mean that (name) committed the crime(s) charged here, and you must not use that evidence as any proof of the crime(s) charged in this case. [That evidence may not be used in any way at all in connection with the other defendant(s)]. Comment See Eighth Circuit § 2.16. For variations, see O’Malley et al., supra, §§ 11.12 and 15.08; Sand et al., supra, 7-13; Federal Judicial Center § 41; First Circuit § 2.04; Fifth Circuit § 1.11; Sixth Circuit § 7.05A; Seventh Circuit § 3.05; Ninth Circuit § 4.6; and Eleventh Circuit § 6.4. This instruction should be used when the defendant’s prior conviction has been admitted to attack the defendant’s credibility under Rule 609 of the Federal Rules of Evidence. Rule 609(a), which governs the admissibility of prior convictions to impeach, provides: The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a
4.37 Impeachment of Defendant - Prior Inconsistent Statement Taken in Violation of Miranda You will recall that the defendant, (name), testified during the trial on (his)(her) own behalf. You will also recall that there was evidence that the defendant made (a statement)(certain statements) before trial. (Name) (admitted)(denied) making (this)(these) earlier statement(s). (Name)’s earlier statement(s) (was)(were) brought to your attention only to help you decide if you believe what (name) testified to here in court. If you find that (name) once said something different, then you should decide if what (name) said here in court was true. You must not, however, consider the earlier statement(s) as evidence of the defendant’s guilt. The government must use other evidence to prove, beyond a reasonable doubt, that the defendant committed the crime. Comment See Federal Judicial Center § 42. For variations, see O’Malley et al., supra, §11.13; Eighth Circuit § 2.17. Normally, prior statements of the defendant are admissible without limitation under Rule 801(d)(2)(A) of the Federal Rules of Evidence. If the defendant’s prior statement is admitted without limitation, no instruction is necessary. But see Instruction 2.11. However, if a statement is obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), or in violation of the defendant’s Sixth Amendment rights, and the defendant successfully moves to suppress it, the statement is not admissible substantively, but may nevertheless be admitted to impeach the defendant if the defendant elects to testify. See Kansas v. Ventris, 556 U.S. 586 (2009); Harris v. New York, 401 U.S. 222 (1971). This instruction should then be used during the concluding instructions to restrict the statement to its limited role. In addition, Instruction 2.26 (Impeachment of Defendant - Prior