Jury Instructions (Civil): Robinson; Jury Instructions (Criminal): Robinson

=== Jury Instructions (Civil): Robinson ===

JUDGE ROBINSON’S STANDARD FINAL JURY INSTRUCTIONS (CIVIL) Following are the instructions preferred by Judge Robinson as standard final jury instructions in a civil trial. These instructions will need to be augmented by the substantive instructions agreed upon by the parties and approved by the court. Although Judge Robinson prefers to provide instruction to the jury prior to closing arguments, the last five instructions included here will be given to the jury following closing arguments, immediately prior to deliberations. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS v. Plaintiff, Defendant. Case No. JURY INSTRUCTIONS INSTRUCTION NO. ______ MEMBERS OF THE JURY: The presentation of evidence is now complete. I gave you some general instructions and definitions at the outset of this case and I now give you final instructions. You may read along with me, or you may simply listen as I read these instructions. If you read along, stay with me. You will each be allowed to take your copy of the instructions to the jury room for further reference during your deliberations. You must follow the law as set out in these instructions and apply that law to the facts you find from the evidence presented in this trial. No single instruction or smaller group of instructions states the law; you must consider all the instructions as a whole. You are not to question the wisdom of any of these instructions. INSTRUCTION NO. ______ You must weigh and consider this case without sympathy and without bias for or against any party. You must not be influenced by anything not within the issues of the case. You must consider and decide this case as an action between persons of equal standing in the community. [The United States],[The State of Kansas] [A corporation] is entitled to the same fair trial as an individual. INSTRUCTION NO. The foregoing instruction sets forth the claims of the respective parties, as stated in the case, and these claims are not to be considered by you as any evidence in this case. The allegations of the respective parties must be established and proven by the evidence. INSTRUCTION NO. [insert claim instruction—usually joint statement of case submitted by the parties] INSTRUCTION NO. [Optional] Each defendant is alleged to be liable for certain claims at issue in this case. It is your duty to give separate consideration to the evidence as it pertains to each defendant. Your verdict with respect to each defendant must be unanimous. INSTRUCTION NO. The burden is on the plaintiff in a civil action, such as this, to prove every essential element of his/her/its claim by a preponderance of the evidence. If the proof should fail to establish any essential element of plaintiff’s claim by a preponderance of the evidence in the case, the jury should find for the defendant as to that claim. To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. This rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. [insert substantive claim instructions here] INSTRUCTION NO. ___[Optional] During the trial, I informed you that the parties had agreed or stipulated to certain facts. That stipulation was then read to you. As I also indicated to you at that time, these instructions contain a written copy of those stipulations agreed upon by the parties. The parties stipulate that: A stipulation simply means that both the parties accept these facts as true. There was no disagreement over these facts, so there was no need for evidence on either side of these facts. Since the parties have so agreed, you are to take these facts as true for the purposes of this case. INSTRUCTION NO. [Optional, Judicial Notice Instruction] Even though no evidence has been introduced about it, I have decided to accept as proved: [insert] I believe [insert] can be so accurately and readily determined from an accurate outside source that it/they cannot reasonably be disputed. You may therefore treat the fact of [insert] as proved even though no evidence was brought out on the point. INSTRUCTION NO. _______ You may consider as evidence the testimony of witnesses in person or by deposition, and the exhibits admitted into evidence, which you will have in the jury room during your deliberations. INSTRUCTION NO. [Optional] The rules of evidence provide that if scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify and state his or her opinion concerning such matters. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, then you may disregard the opinion entirely. INSTRUCTION NO. ______ The parties may prove any fact through either direct or circumstantial evidence. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists, even though not proved directly. In deciding if a fact has been proved by circumstantial evidence, you will consider all the evidence in the light of reason, common sense, and experience. You may give the same weight to circumstantial evidence as you give to direct evidence. INSTRUCTION NO. ______ You are permitted to draw reasonable inferences from the testimony and exhibits you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts established by the testimony and evidence in the case. INSTRUCTION NO. ______ You must consider all the evidence, but you need not accept all evidence as true or accurate. You will determine the weight and credit to be given the testimony of each witness. You may use common sense, common knowledge and experience in weighing that testimony. The number of witnesses who testify about a matter may or may not determine the weight of the evidence. The testimony of a fewer number of witnesses concerning any fact may be more credible than the testimony of more witnesses to the contrary. Similarly, you will determine the weight and credit to be given to each exhibit. INSTRUCTION NO. You are the sole judges of the credibility or “believability” of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness you should consider the witness’s relationship to the plaintiff or to the defendant; any interest the witness may have in the outcome of the case; the witness’s manner while testifying; the opportunity and ability to observe or acquire knowledge concerning the facts about which the witness testified; the witness’s candor, fairness and intelligence; and the extent to which the witness has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part. When weighing conflicting testimony you should consider whether the discrepancy has to do with a material fact or with an unimportant detail, and should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon. In addition, while you must consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case. INSTRUCTION NO. ______ A witness may be discredited or “impeached” by contradictory evidence, or by evidence that at some other time the witness has said or done something, or failed to say or do something, which is inconsistent with the witness's testimony at trial. If you believe any witness has been so impeached, you may give the testimony of that witness such weight as you believe it deserves. If a witness is shown to have deliberately testified falsely concerning any material matter, you have a right to distrust that witness’s testimony. You may reject any part or all of that witness’s testimony. An act or omission is deliberate if done voluntarily and intentionally and not through mistake, accident, or other innocent reason. INSTRUCTION NO. ______ I have instructed you concerning plaintiff’s damages, but that does not mean I believe the plaintiff should, or should not, prevail in this case. That decision rests with you. Your verdict must represent the considered judgment of each juror. Your verdict must be unanimous. As jurors, you must consult with one another and deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of all the evidence with your fellow jurors. During your deliberations, do not hesitate to re-examine your own views or to change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or simply to return a verdict. Remember at all times you are not partisans. You are judges of the facts. Your sole interest is to seek the truth from the evidence in the case. INSTRUCTION NO. In considering the evidence in this case, you are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted, and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. You are to perform your duty without bias as to any party or person. The law does not permit jurors to be governed by sympathy, prejudice, or public opinion. That was the promise you made and the oath you took before being accepted by the parties as jurors and they have the right to expect nothing less. Keep constantly in mind that it would be a violation of your sworn duty to base a verdict upon anything but the evidence in, and the law applicable to, this case. INSTRUCTION NO. _____[OPTIONAL] At the beginning of trial, I instructed that you could take notes during the course of trial and cautioned that your note-taking should not interfere with your duty to listen and consider all the evidence. Now that you are about to begin your deliberations, I would like to comment on your use of any notes during the deliberations. There is always a tendency to attach undue importance to matters which one has written down. Some testimony which is considered unimportant at the time presented, and thus not written down, takes on greater importance later in the trial in light of all the evidence presented. Therefore, you are instructed that your notes are only a tool to aid your own individual memory. Your notes are not evidence, and are by no means a complete outline of the proceedings or a list of the highlights of the trial. If you did not take notes, you should rely upon your own independent recollection or memory of what the evidence was, and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror as to what the evidence was. Above all, your memory should be your greatest asset during your deliberations. INSTRUCTION NO. ______ Statements, objections or arguments the lawyers make are not evidence. Lawyers point to those matters which are most significant or most helpful to their side of the case and to those matters which are most damaging to the opponent’s case, calling your attention to certain facts or inferences that might otherwise escape your notice. INSTRUCTION NO. ______ At times during the trial, I have ruled on the admission of certain testimony and exhibits. Those matters are questions of law for the court. Do not concern yourselves with or draw any inferences from those rulings. I have not intended to and I do not express or suggest any opinion in these instructions, my rulings, actions or remarks about the resolution of any issue in this case. You will now hear arguments of counsel. Their role is to offer interpretations of the evidence consistent with their respective causes. Please give them your thoughtful and respectful attention. The preceding instructions are given to the jury prior to closing arguments. The following instructions are given to the jury following closing arguments, immediately prior to deliberations. INSTRUCTION NO. ______ This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases, it must be decided sometime. There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side. Also there is no reason to believe that the case would ever be submitted to people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were. This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision. This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed. INSTRUCTION NO.________ When you retire to the jury room, you will first select one of your members to preside over your deliberations, speak for the jury in court and sign the verdict upon which you agree. In this case your verdict will be returned in the form of written answers to special written questions submitted by the court. Your answers will constitute your verdict. Your answers to the questions must be unanimous. Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions. It is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges—judges of the facts. Your sole interest is to seek the truth from the evidence in the case. INSTRUCTION NO. During your deliberations, that is when all of you are together in the jury room, you are released from the admonition regarding discussion of the case. The admonition regarding discussion remains in effect at any time when all of you are not in the jury room, or when you are away from the courthouse. The admonition regarding reading, listening to or watching news reports about the case, doing any sort of independent investigation or discussing the case with any third party, remains in effect at all times until such time as I release you from the admonition. During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as the telephone, a cell phone, smart phone, iPhone, Blackberry or computer, the internet, any internet service, any text or instant messaging service, any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. I cannot overemphasize the importance of this admonition. INSTRUCTION NO.________ If it becomes necessary during your deliberations to communicate with the court, please write out your message or question, have the presiding juror sign and date it, and give the note to the law clerk or bailiff stationed outside of the jury room. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing, or orally here in open court. You will note from the oath taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. I will respond as promptly as possible, either in writing or by having you return to the courtroom so that I can address you orally. With regard to any message or question you might send, you should never state or specify your numerical division at the time. In other words, do not reveal how the group is voting, unless it is in response to a direct question from me about your division. Bear in mind also that you are never to reveal to any person how the jury stands— numerically or otherwise—on the question before you, until after you have reached an unanimous verdict. You may now retire and conduct your deliberations in such manner as may be determined by your good judgment as reasonable people. INSTRUCTION NO. ______ A final suggestion by the court—not technically an instruction upon the law—may assist your deliberations. The attitude of jurors at the outset of and during their deliberations is important. It is seldom productive for a juror, immediately upon entering the jury room, to make an emphatic expression of his or her opinion upon the case or to announce a determination to stand for a certain verdict. The reason is obvious: we are all human and it is difficult to recede from a position once definitely stated, even though later convinced it is unsound. Jurors are selected for the purpose of doing justice. This presupposes and requires deliberation—counseling together in an effort to agree. Have in mind at all times, therefore, that you are a deliberative body, selected to function as judges of the facts in a controversy involving the substantial rights of the parties. You will make a definite contribution to efficient administration of justice when and if you arrive at a just and proper verdict under the evidence which has been adduced. No one can ask more and you will not be satisfied to do less. __________________ ____________________________________ Date Julie A. Robinson United States District Judge

=== Jury Instructions (Criminal): Robinson ===

JUDGE ROBINSON’S STANDARD CRIMINAL INSTRUCTIONS Following are the instructions preferred by Judge Robinson as standard final jury instructions in a criminal trial. These instructions will need to be augmented by the substantive instructions agreed upon by the parties and approved by the Court. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED STATES OF AMERICA, v. Case No. JAR Plaintiff, Defendants. JURY INSTRUCTIONS Members of the Jury: INSTRUCTION NO. Now that you have heard all of the evidence, it becomes my duty to instruct you on the law applicable to this case. In the interest of clarity, I will read the instructions to you, and each of you will have a copy of the instructions in the jury room. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is your duty, as judges of the facts, to follow and apply that law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but you must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. INSTRUCTION NO. The Indictment in this case charges substantially as follows: 4 INSTRUCTION NO. An indictment is but a formal method of accusing a defendant of a crime. It is not evidence of any kind against a defendant, and does not create any presumption or permit any inference of guilt. It is a mere charge or accusation—nothing more and nothing less. 5 INSTRUCTION NO. The Indictment charges that the crime was committed “on or about” a certain date. It is not necessary that the proof establish with certainty the exact date of the alleged crime. It is sufficient if the evidence shows beyond a reasonable doubt that the crime was committed on a date reasonably near the date alleged. 6 INSTRUCTION NO.______ Whenever the word “he” is used in these instructions, you may consider it as applying equally to a woman. In like manner, the use of the singular of a word may be taken equally to mean the plural. 7 INSTRUCTION NO. To the charges contained in the Indictment, the defendant has entered pleas of “not guilty.” These pleas put in issue every element of the crimes charged and make it incumbent upon the government to prove beyond a reasonable doubt every element of the crimes charged. 8 INSTRUCTION NO. The law presumes a defendant to be innocent of crime. This presumption remains with him throughout the trial. Thus, a defendant, although accused, begins the 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 a defendant. The presumption of innocence alone is sufficient to acquit the defendant now on trial, unless the jurors are satisfied of the defendant’s guilt beyond a reasonable doubt, from all the evidence in the case. 9 INSTRUCTION NO. The government has the burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. 10 INSTRUCTION NO. Burden of proof means burden of persuasion. The burden is always upon the government to prove beyond a reasonable doubt every essential element of the crimes charged. In determining whether or not it has met this burden, you must consider all the evidence. 11 INSTRUCTION NO. A separate crime is charged in each count of the Indictment. Each count and the evidence pertaining to it should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the crimes charged should not control your verdict as to any other crimes charged. Your verdict with respect to each count of the Indictment must be unanimous. 12 INSTRUCTION NO. [multiple defendants] A separate crime is charged against one or more of the defendants in each count of the Indictment. You must separately consider the evidence against each defendant on each count and return a separate verdict for each defendant. Your verdict as to any one defendant or count, whether it is guilty or not guilty, should not influence your verdict as to any other defendants or counts. 13 INSTRUCTION NO. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor's criminal purpose. This instruction is applicable only to your consideration of Count . 14 INSTRUCTION NO. _______ is a controlled substance. In the Indictment, it is alleged that a particular amount or quantity of the particular controlled substance, _______, was involved. The evidence in the case need not establish that the amount or quantity of the particular controlled substance was the same as that alleged in the Indictment, but only that a measurable amount of the controlled substance was in fact the subject of the act charged in the particular count of the Indictment. 15 INSERT SUBSTANTIVE CHARGES HERE 16 INSTRUCTION NO. In every crime there must exist a union or joint operation of act and intent. The burden is always upon the government to prove both act and intent beyond a reasonable doubt. 17 INSTRUCTION NO. The question of intent is a matter for you to determine. Intent is a state of mind. Since it is not possible to look into a person’s mind to see what went on, the only way you have of arriving at the intent of the defendant is for you to take into consideration all of the facts and circumstances shown by the evidence, including the exhibits, and determine from all such facts and circumstances what the intent of the defendant was at the time in question. 18 INSTRUCTION NO. There are two types of evidence from which a jury may properly find a defendant guilty of crime. One is direct evidence, such as the testimony of an eyewitness. The other is circumstantial evidence, the proof of a chain of circumstances pointing to the commission of the offense. The law makes no distinction between direct and circumstantial evidence but requires that, before convicting a defendant, the jury be satisfied of the defendant’s guilt beyond a reasonable doubt from all the evidence in the case. 19 INSTRUCTION NO. During the trial, I informed you that the government and defendant had agreed or stipulated to certain facts. That stipulation was then read to you. As I also indicated to you at that time, these instructions contain a written copy of those stipulations agreed upon by the parties. The parties stipulate that: A stipulation simply means that both the government and the defendant accept these facts as true. There was no disagreement over these facts, so there was no need for evidence on either side of these facts. You should accept these facts as true, but you are not required to do so, because you are the sole judge of the facts. 20 INSTRUCTION NO. The weight to be given the evidence is determined not by the number of witnesses or the amount of testimony produced by either side, but by the credibility of the witnesses and the nature and quality of their testimony. The evidence of one witness who is entitled to full credit is sufficient for the proof of any fact in this case, and you would be justified in returning a verdict in accordance with such testimony even though a number of witnesses gave conflicting testimony, if from the consideration of the whole case and the reliability and credibility of the various witnesses you believe the one witness as opposed to the greater number of witnesses. Always keep in mind that the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. 21 INSTRUCTION NO. Although you must consider all of the evidence, you are not required to accept all of the evidence as true or accurate. You are the sole judges of the credibility or “believability” of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness you should consider the witness’s relationship to the government or to the defendant; any interest the witness may have in the outcome of the case; the witness’s manner while testifying; the opportunity and ability to observe or acquire knowledge concerning the facts about which the witness testified; the witness’s candor, fairness and intelligence; and the extent to which the witness has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part. When weighing conflicting testimony you should consider whether the discrepancy has to do with a material fact or with an unimportant detail, and should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon. In addition, while you must consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case. 22 INSTRUCTION NO. In considering the evidence in this case, you are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted, and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. You are to perform your duty without bias as to any party or person. The law does not permit jurors to be governed by sympathy, prejudice, or public opinion. That was the promise you made and the oath you took before being accepted by the parties as jurors and they have the right to expect nothing less. Keep constantly in mind that it would be a violation of your sworn duty to base a verdict upon anything but the evidence in, and the law applicable to, this case. 23 INSTRUCTION NO. The defendant is on trial only for the acts alleged in the Indictment. He is not on trial for any other acts or conduct. In determining whether the defendant is guilty or not guilty, you are therefore to consider only whether the defendant has or has not committed the acts charged in this Indictment. Even if you are of the opinion that he is guilty of some offense not charged in the Indictment, you must find the defendant not guilty if the evidence does not show beyond a reasonable doubt that the defendant committed the specific acts charged in the Indictment. 24 INSTRUCTION NO. There has been evidence presented which relates to possible unlawful acts and conduct of the defendant, other than the specific offenses with which he is charged and is on trial. You are instructed that this evidence has been admitted only for the limited purpose of showing [ ], if any, of said defendant with respect to the offenses with which he is charged. Such evidence of other unlawful acts of a like or similar nature may not be considered by you as proof the defendant is guilty of the specific offenses charged, but is relevant and may be considered by you only for the limited purposes I have just stated. 25 INSTRUCTION NO. Evidence of intentional flight of a defendant immediately after the commission of a crime, from persons he knows are law enforcement officers, is not sufficient in itself to establish the defendant's guilt. However, it is a fact which, if proved, may be considered by the jury in light of all the other evidence in the case in determining whether the government has met its burden of proof, as defined in these instructions. Whether or not the evidence of flight shows intent or a consciousness of guilt and the significance to be attached to any such evidence, if any, are matters exclusively within the province of the jury. 26 INSTRUCTION NO. Evidence has been received regarding law enforcement methods and equipment used in the investigation of this case. Likewise, evidence has been received concerning enforcement methods and equipment which were not used in relation to the investigation. You may consider this evidence for the purpose of evaluating the weight of the evidence produced by the government and the credibility of law enforcement personnel involved in the investigation. However, there is no legal requirement that the government, through its enforcement agents, must use all known or available crime detection methods or any particular type of equipment in its investigations. 27 INSTRUCTION NO. You have heard tape recordings of conversations made by witnesses for the government. These tape recordings were legally recorded and are a proper form of evidence. You may consider the tape recordings just like any other form of evidence. It is for you as the trier of fact to determine what was said in the taped conversations, by whom, and the weight and credit, if any, to be given such recorded evidence. 28 INSTRUCTION NO. Typewritten transcripts of the tape recorded conversations have been furnished to you solely for your convenience in assisting you in following the conversation or in identifying the speakers. The tapes themselves, however, are evidence in the case and the typewritten transcripts are not evidence. What you hear on the tapes is evidence. What you read on the transcript is not. If you perceive any variation between the two, you will be guided solely by the tapes and not by the transcripts. If you cannot, for example determine from the tape recording that particular words were spoken or if you cannot determine from the tape recording who said a particular word or words, you must disregard the transcripts insofar as those words or that speaker are concerned. 29 INSTRUCTION NO. You are instructed that the testimony offered by agents, officers or employees of the government shall not be given any greater weight or credibility by the fact alone of their office, but that such testimony should be weighed and considered as to the credibility on the same ground and for the same reason that the testimony of all other witnesses is weighed and judged. 30 INSTRUCTION NO. The rules of evidence provide that if scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify and state his or her opinion concerning such matters. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, then you may disregard the opinion entirely. 31 INSTRUCTION NO. A witness may be discredited or "impeached" by contradictory evidence, by a showing that he or she testified falsely concerning a material matter, or by evidence that at some other time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness's present testimony. If you believe that any witness has been so impeached, then it is your exclusive province to give the testimony of that witness such credibility or weight, if any, as you may think it deserves. 32 INSTRUCTION NO. When it has been shown that a witness has been convicted of a felony, you are to determine the witness's credibility and the weight to be given the witness's testimony the same as you would the testimony of any other witness. The fact that a witness has been convicted of a crime may be considered by you in determining what credit and weight you will give to that witness's testimony. 33 INSTRUCTION NO. The testimony of a drug abuser must be examined and weighed by the jury with greater care than the testimony of a witness who does not abuse drugs. The jury must determine whether the testimony of the drug abuser has been affected by drug use or the need for drugs. 34 INSTRUCTION NO. In criminal investigations, the government may utilize informants, and may employ various undercover strategies involving artifice and trickery in order to gain the confidence of a suspect and to ferret out criminal activity. 35 INSTRUCTION NO. The testimony of a witness who provides evidence against a defendant for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the witness's testimony has been affected by interest, or by prejudice against a defendant. 36 INSTRUCTION NO. An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony that he or she is an accomplice may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have. The jury, however, should keep in mind that such testimony should be received with caution and considered with great care. You should not convict a defendant upon the unsupported testimony of an alleged accomplice unless you believe that unsupported testimony beyond a reasonable doubt. 37 INSTRUCTION NO. You may consider the testimony of [NAME] who is a codefendant who has pled guilty to charges related to the charges against the defendant in this case. You may consider the guilty plea only to the extent that you find that it bears upon the credibility of codefendant [NAME]. The guilty plea itself is not evidence of the guilt of the defendant before you. You are not to consider the guilty plea for any purpose other than in assessing the credibility of [NAME] as a witness. 38 INSTRUCTION NO. ____ Certain charts and summaries have been shown to you to help explain the evidence in this case. Their only purpose is to help explain the evidence. These charts and summaries are not evidence or proof of any facts. 39 INSTRUCTION NO. The defendant has offered himself as a witness and has testified from the witness stand. Having done so, you are to determine the credibility of said defendant in the same way as you would consider the testimony of any other witness who took the stand. [alternative to next instruction] 40 INSTRUCTION NO. The law does not compel a defendant to testify. The fact that the defendant did not take the witness stand and testify in his own behalf does not create any presumption against him. You must not permit that fact to weigh in the slightest degree against the defendant, nor should it enter into your discussions or deliberations in any manner. [alternative to last instruction] 41 INSTRUCTION NO. Evidence relating to any alleged statement, confession, admission, or act or omission alleged to have been made or done by a defendant outside of court and after a crime has been committed should always be considered by the jury with caution and weighed with great care. Any such alleged statement, confession, or admission should be disregarded entirely unless the other evidence in the case convinces the jury beyond a reasonable doubt that the statement, confession, admission, or act or omission was made or done knowingly and voluntarily. In determining whether any statement, confession, admission, or act or omission alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made or done, the jury should consider the age, training, education, occupation, and physical and mental condition of the defendant and his 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 statement, confession, or admission. If after considering the evidence you determine that a statement, confession, admission, or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances. 42 INSTRUCTION NO. Statements, questions and arguments of counsel are not evidence. The evidence consists of the sworn testimony of the witnesses and all exhibits received in evidence. Any evidence as to which an objection was sustained by the Court, and any evidence ordered stricken by the Court, must be entirely disregarded. Anything you may have seen or heard outside the courtroom is not evidence, and must be entirely disregarded. 43 INSTRUCTION NO. During the trial I questioned witnesses and passed upon objections to the admission of certain testimony or exhibits into evidence. Questions relating to the admissibility of evidence are solely questions of law for the court, and you must not concern yourselves with the reasons for my rulings. In your consideration of the case, you must draw no inference from these rulings and you must consider only the evidence which I admitted. Neither in any question I have asked, nor in these instructions, nor in any ruling, action or remark that I have made during the course of this trial, have I intended to interpose any opinion or suggestion as to how I would resolve any of the issues of this case. If I have made any remark that you believe indicates how I would decide this case, I instruct you to disregard such remark. 44 INSTRUCTION NO. The punishment provided by law for the crimes charged is a matter exclusively within the province of the court and may not be considered by the jury in any way in deciding whether the defendant is guilty or not guilty of the crimes charged. 45 INSTRUCTION NO. During your deliberations, that is when all of you are together in the jury room, you are released from the admonition regarding discussion of the case. The admonition regarding discussion remains in effect at any time when all of you are not in the jury room, or when you are away from the courthouse. The admonition regarding reading, listening to or watching news reports about the case, doing any sort of independent investigation or discussing the case with any third party, remains in effect at all times until such time as I release you from the admonition. During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as the telephone, a cell phone, smart phone, iPhone, Blackberry or computer, the internet, any internet service, any text or instant messaging service, any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. I cannot overemphasize the importance of this admonition. The alternate jurors will not be allowed to participate in deliberations but they remain bound by all aspects of the admonition. The clerk's office will notify the alternate jurors of the verdict and, if appropriate, when they will need to return. 46 INSTRUCTION NO. During your deliberations, you may refer, if you wish, to any notes you took during the trial. Remember, however, that your notes are not evidence and remember, also, that it is your memories regarding the evidence, and not your notes, which control. 47 INSTRUCTION NO. Any verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous, and it must be unanimous as to each count [and each defendant]. It is your duty as jurors to consult with one another and to deliberate in an effort to reach agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case. 48 INSTRUCTION NO. Upon retiring to the jury room, you should first select one of your number to act as your foreperson, who will preside over your deliberations and will be your spokesperson here in court. A form of verdict has been prepared for your convenience. You will take the verdict form to the jury room, and when you have reached unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. If, during your deliberations, you should desire to communicate with the court, please reduce your message or question to writing, signed by the foreperson and pass the note to my law clerk, who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you return to the courtroom so that I can address you orally. I caution you, however, with regard to any message or question you might send, that you should never state or specify your numerical division at the time. 49 INSTRUCTION NO. ______ A final suggestion by the court--not technically an instruction upon the law--may assist your deliberations. The attitude of jurors at the outset of and during their deliberations is important. It is seldom productive for a juror, immediately upon entering the jury room, to make an emphatic expression of his or her opinion upon the case or to announce a determination to stand for a certain verdict. The reason is obvious: we are all human and it is difficult to recede from a position once definitely stated, even though later convinced it is unsound. Jurors are selected for the purpose of doing justice. This presupposes and requires deliberation--counseling together in an effort to agree. Have in mind at all times, therefore, that you are a deliberative body, selected to function as judges of the facts in a controversy involving the substantial rights of the parties. You will make a definite contribution to efficient administration of justice when and if you arrive at a just and proper verdict under the evidence which has been adduced. No one can ask more and you will not be satisfied to do less. JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE Date: _________________ 50 51