6.Final Jury Instructions — Evidence, Credibility, and Burden of Proof

THE COURT: I'll see you after I finish my instructions.

So, jurors, you've been very patient and attendant. We appreciate that. I'd ask you to bear with me for just a few more minutes while I complete my instructions to you. I want to talk now about how you should go about assessing the evidence in the case in fulfilling your responsibility to resolve the issues that are presented.

There are two aspects to your deliberations. First, you've heard a good deal of evidence over the course of the trial. You now have to decide what that evidence has proved or not. It is your responsibility to determine what facts have been established by the evidence. After you've made those determinations, you must consider what those facts mean in light of the principles regarding the elements of the charged offenses that I gave to you in the earlier part of my instructions; that is, do the facts as you find them establish that any given charge has been proved or not?

It's often said that jurors such as yourselves are the sole and exclusive judges of the facts of the case. You determine the weight, the value, and the effect of the evidence that you've heard and seen. And where there are factual disputes, you try to decide on the evidence what conclusions you should draw about those matters.

Your oath as jurors requires you to determine the facts of the case without fear or favor, based solely on a fair consideration of the evidence. That fundamental proposition means two things: First of all, of course it means you are to be completely fair-minded and impartial, swayed neither by prejudice nor sympathy, by personal likes or dislikes toward anybody involved in the case. Your responsibility is simply to judge the true meaning of the evidence fairly and impartially.

It would be improper for you, for example, in reaching your decision as to whether the government has sustained its burden of proof to consider any feelings you might have about the defendant's race, religion, national origin, sex, age. It would be equally improper for you to allow any emotional responses you might have to the nature of the crimes charged to interfere with your decision-making in this proceeding.

In particular, you've seen a number of graphic photographs. Photographs were admitted in evidence for the purpose of helping you to understand the testimony such as by showing you the conditions at a particular scene or by showing the nature of the wounds received by persons. Those are, of course, difficult to look at, but you should not let the photographs stir up any emotions to the extent that they override your careful and rational assessment of the evidence.

The second important point about your fair consideration of the evidence is that your judgment must be based solely on the evidence that has been presented in the course of the case. You may not go beyond the evidence by speculating or guessing what other things might be true that were not shown. Your responsibility is to resolve the issues, so far as you can, by your consideration of the evidence that has been presented, and your conclusions should be those that the evidence directs you to. If there should be issues as to which the evidence is insufficient or inconclusive so that you're not able to draw a firm conclusion, then you have to leave any conclusion undrawn. You may only draw those conclusions that the evidence supports.

I'm going to talk a little bit more about the evidence in a minute, but let me remind you what is not evidence. I told you at the beginning of the case that the lawyers' summaries of the evidence in their openings, when they're telling you what they expect the evidence will be, and now in their closings when they try to recall it for you, those summaries are not part of the evidence, which is why we don't have you take notes during that period of time. They are an attempt to marshal the evidence for you, to try to persuade you to understand in a way that is consistent with their view of the case, but to the extent your collective appreciation of the evidence differs in any way from what the lawyers have said in predicting it or arguing it, it is your understanding and your assessment that controls. What the lawyers say cannot add or subtract from the evidence. You have heard the evidence, and it is your judgment on that evidence that matters. I told you at the outset, and you have seen that I would be ruling on questions of the admissibility of evidence as they have arisen. I remind you there is no significance for your purposes to any of the rulings either admitting or excluding evidence. Those considerations are wholly separate from the kinds of decisions you'll have to make, and you should give no consideration or significance to evidence rulings.

I remind you that evidence that is offered but not admitted is not to be considered by you. Similarly, questions by the attorneys which are not answered by the witness produce no evidence.

The indictment is not evidence. You must refer to it so that you can see what the proposed charges are that you have to -- because you have to test those against the evidence in the case, but the indictment only proposes you, the jury, decide based on the evidence whether what is proposed has been proved.

As I've said on many occasions, you must completely disregard any reports you may have read in the press, seen on television, heard on the radio or viewed online. You've repeatedly assured me that you have abided by my instructions to avoid any such information which is not part of the evidence, obviously, in the case.

To the extent you had any prior impressions of the facts of the case from the time before you were called to be jurors, you must completely set aside any such impressions now. Again, in the jury selection process you assured me that you could do that. And, frankly, if I had not trusted your answers in that respect, you would not be sitting here today. Your focus must be entirely and exclusively on the body of evidence produced in the course of the trial, and it would be unfair and a violation of your jurors' oath to do otherwise.

Now, let me address some of the things that are evidence in the case. You have a very large number of exhibits. Some are documents, some are audio recordings, some videos, some are pictures, some are tangible objects. You'll have access to all the exhibits that have been admitted in evidence, and you may consider those exhibits and give them whatever weight, value or significance you think they are fairly entitled to receive. The judgment is entirely yours.

We are able to have many of the exhibits presented to you -- presentable to you in digital form. You have, no doubt, seen the screen on the wall in the jury room. You will get to use it. It is part of what we call the "Jury Evidence Recording System," or J-E-R-S. The parties put their exhibits in digital form into a drive, and it is fed into the monitor. You will have complete control over it. When you activate the touchscreen when you go in to deliberate, you will see a prompt for a brief tutorial. There's a four-minute, approximately, tutorial that teaches you how to use the systems. It's very simple, and similar to using an iPad or other tablet. You can scroll through the exhibits, you can zoom in and out on some exhibits. There is an index. And you can call up an exhibit by entering the exhibit number on a keypad. You will also have a paper index that will give you the listing of the exhibits. You will have some video and audio recordings which are playable through the JERS system.

Based on certain technical limitations, not all of the exhibits can be displayed through JERS. For some exhibits, we will give you a laptop which will hold those exhibits for your use in the deliberations. It only has a very few of the trial exhibits, and it otherwise does not have any programs or capabilities that a laptop might otherwise have, such as word-processing or access to the Internet. It's simply a result of the technical limitation on the types of the files that can be used on JERS. There's no special significance to those that are on the laptop as opposed to those that are on JERS; it's just a means by which we can present them to you. Essentially, they are the interactive exhibits that you've seen during the course of the trial.

We'll give you binders with paper versions of many of the exhibits for you to use if you find it more convenient to resort to the paper files than to files on the screen. Many exhibits in the case have been physical objects, actual items. Those are available to you as well. If you would like to view any of the physical exhibits, you should simply write a note indicating which exhibit or exhibits you would like to view and give it to the court security officer, and we will make arrangements for you to see those physical objects.

Sometimes a particular item of evidence is received for a limited purpose rather than for general consideration; for example, some matters may have been admitted under a limitation that they could be considered as evidence that a particular event occurred, for example, rather than -- for example, if somebody had said something on a particular occasion or written something -- but not as evidence that any affirmative assertion that was contained in it was actually true or accurate.

As an illustration, evidence that a person said, "I'm unhappy," for example, under this limitation could be used to consider the fact that the person had said that, but not to affirmatively prove that she was, in fact, unhappy. And I remind you of that limitation, with regard to the rather few circumstances when it was imposed.

In addition to the exhibits, of course, you have the testimony of the witnesses who appeared here in the courtroom to answer questions that were put to them. You ought to give the testimony of each witness whatever weight, value or significance in your judgment it is fairly entitled to receive.

With respect to each witness, you should think about the testimony and decide how much value or meaning it should have to fair-minded people like yourselves who are looking for the truth. You may find, as you think about the evidence from any particular witness, that you find credible, reliable or meaningful just about everything that that witness has said, perhaps just about nothing that that witness has said, or perhaps something in between. Maybe there are some things from a witness you find credible and reliable and other things from that same witness that you are more skeptical or doubtful about. There's no automatic rule. You don't have to accept any given witness's testimony in total or reject it in total. You should think about the testimony and accept what is meaningful and reliable and reject what is not.

Let me suggest some useful considerations in evaluating witnesses' testimony. They involve three aspects: perception, memory and narration.

Perception: How good were the witnesses' observations or perceptions of events in the first place? What were the circumstances under which the witness participated things, observed things and so on? And how did those circumstances affect, if they did, the witness's ability later to tell you reliably what had happened?

Memory: How accurate and reliable is the witness's recollection of events? People may have varying abilities to remember things accurately and to recall them. And you may take that into account. Sometimes the way things happen, the circumstances surrounding an event may affect the ability of people to remember things accurately and reliably. For example, sudden, unexpected events may be perceived and remembered in a different way from events that unfold in an orderly way and at a slower pace.

Narration: How accurate and reliable is the witness in narrating or telling here in the courtroom what happened? Is the testimony truthful? Is it complete? Is the witness careful in describing things? Is the witness himself or herself confident or perhaps uncertain about the testimony? Is the witness's testimony consistent with itself or does it vary?

You may take into account any partiality or bias that a witness may have towards one side or the other. Does the witness have any reason or motive or interest in the outcome of the case or anything else that would affect the witness to favor one side or the other in the testimony?

A tendency to favor one side or the other might be deliberate, an intentional effort to favor one side, or it might be unconscious, arising out of some affiliation or affinity with one side or the other. Again, such tendencies could affect the reliability of the testimony. You ought to consider whether there has been any such effect in the testimony that you've heard. Again, keep in mind that in every case there are people who are associated with or have a connection with one side or the other, and it is certainly not automatic that people must, therefore, be distrusted for that reason. But potential bias or partiality, conscious or not, by a witness is a factor you can think about in evaluating the evidence.

You heard testimony from a witness, Mr. Silva, who was convicted of certain crimes after pleading guilty pursuant to a plea agreement that he entered into with the government. That agreement is in evidence for you to review. You've heard that in return for his entry of a guilty plea, the government agreed to take his cooperation with the prosecution into account in recommending a sentence in his criminal case with the prospect that he might receive a sentence lower than what might otherwise have been imposed if he had not agreed to testify here.

It is legitimate for the government to enter into plea agreements of this kind to obtain testimony from persons who otherwise would be unwilling to testify. You may accept and rely on the testimony of a person who testifies after entering into such an agreement, and you may make factual conclusions based on your acceptance of that testimony if you decide it is warranted.

However, you should bear in mind that such a witness who has entered into an agreement with the government in return for the prospect of a lower sentence or other favorable considerations, may have a motive to tell the government what he thinks it wants to hear. And accordingly, you should consider such evidence with great care and caution. However, after evaluation you may, if you judge it to be appropriate, accept and rely on that testimony. You may, of course, also choose not to accept or rely on it.

You've heard testimony from witnesses who have been described as experts. An expert witness has special knowledge or experience that allows the witness to testify about matters within that expertise and to give an opinion about issues in the case based on his or her knowledge or experience. You should evaluate the testimony of an expert witness with the same care that you employ in evaluating the testimony of any other witness. You may accept and rely on the testimony of the expert, or you may reject it as you judge appropriate.

In weighing expert testimony, you should consider the factors that generally bear upon the credibility of witnesses as well as the particular experts' qualifications, such as education and experience, the soundness of the reasons given for any opinion, and any other evidence in the case that you think is pertinent.

Remember that you alone decide how much of a witness's testimony to believe and how much weight it should be given, and that applies to experts as well as other witnesses.

You've heard the testimony from a number of law enforcement officials. The fact that a witness may be employed as a law enforcement official does not mean that his or her testimony is deserving of either more or less consideration or greater or lesser weight than any other witness.

It is legitimate for defense counsel to question the credibility or reliability of a law enforcement witness on the ground that his or her testimony may be colored by a personal or professional interest in the outcome of the case. As with any other witness, it is up to you after considering the matter whether or not to accept and rely on the testimony of a law enforcement witness just as with any other witness.

Some evidence in the case was obtained by means of various investigative techniques including searches of various premises. The government is permitted to use investigative techniques such as these. You should not consider whether it was proper or not to conduct the searches. If the techniques had been improperly used, the evidence would not have been permitted to be presented in the case. Consider the evidence as a whole. You ought to consider the evidence from each witness not only by itself in isolation as if that witness were the only person to testify, but also in the context of all the evidence you've heard. For example, there might be a piece of evidence about which you originally are a bit skeptical, and then you might hear other evidence that leads you to re-examine your initial impression, and you begin to trust the questioned evidence a bit more. The opposite may happen, of course. You might tend to accept something that sounds pretty good at first, and then as you consider other pieces of evidence, you might begin to doubt what you'd first accepted. So again, think of the evidence sensibly as a whole as you make your judgments about it.

You may make inferences from the evidence. We say that a fact in a case like this can be proved by either two kinds of evidence, direct evidence of the fact or circumstantial evidence of the fact. Direct evidence is when there is a piece of evidence or a group of pieces of evidence which, if accepted, tend themselves to directly prove a fact. Often it might be simply an assertion by a witness.

Suppose somebody came into the courtroom now and said, "It's raining out." You would consider and decide whether the person who said it had any basis for knowing what the weather was, whether they could be trusted to tell you accurately what was going on. But if you were satisfied as to those matters, you could accept the assertion as true and believe as a result of accepting it what the weather was: that it was raining out.

Similarly, an exhibit or a piece of physical evidence might be direct evidence of a fact. Suppose, however, that instead of having somebody tell you directly what the weather was like outside, the person came into the courtroom now wearing a wet raincoat and folding up a wet umbrella. Without any direct assertion being made about what the weather was like, you would have some observation, some evidence, we might say, from which you might draw the conclusion or inference that it was raining out because in your common experience, wet raincoats and umbrellas are evidence of that fact.

An inference is simply a conclusion that you might draw from the available information that you have found to be reliable. I take the trouble to point this out because sometimes you will hear people say in casual conversation, "That's just circumstantial evidence. That doesn't prove anything." Well, that goes too far because, in fact, circumstantial evidence can be relied on to prove things if properly used.

If you think about it, everyone probably relies on circumstantial evidence routinely through the day. You walk into the kitchen and see the teakettle steaming on the stove, you know enough not to put your finger on the burner because you've drawn an inference about the burner being hot.

You must be careful, however, that the inferences you draw are those that are generally supported by the information that you're basing the inference on. An inference, and consequently, proof of a fact by circumstantial evidence cannot be an excuse for guessing or speculating. If there are alternative possible inferences from the evidence, you can't just pick one you happen to like. You have to be persuaded that any inference you make is superior to other possible inferences based on the evidence and information that you have. And, of course, to the extent that you rely in a criminal case on inference by circumstantial evidence, in the end your conclusions still must be those that convince you beyond a reasonable doubt.

As I reminded you at the outset of the trial, the defendant is presumed to be innocent of the crimes he's charged with unless and until the government proves by the evidence at trial that he's guilty, and proves that beyond a reasonable doubt. The burden of proof rests with the government. A defendant assumes no burden to prove that he is innocent. A defendant in a criminal case has a right guaranteed by the Bill of Rights in our Constitution to choose not to testify in the case. There may be many reasons why a defendant would choose to invoke and exercise that right. You are not under any circumstances to draw any inference or presumption against the defendant for his decision to invoke the right and to decline to testify. You should not discuss the matter. You are to decide the issues in the case solely from your consideration of that evidence that has been given in the case.

The defendant is, of course, entitled to present evidence other than his own testimony. It is important for you to keep in mind, however, that by presenting evidence, a defendant does not presume any burden or obligation to prove that he's not guilty, or to put it more colloquially, to explain things.

A defendant's evidence is subject to the same standards of scrutiny and evaluation that you give to all evidence, but the burden of proof never shifts from the government. The question is never: Which side has convinced me; but rather, has the government convinced me beyond a reasonable doubt that the defendant is guilty? If the answer to that question is yes, the government is entitled to your verdict of conviction. If the answer is no, then the defendant is entitled to be, and must be, acquitted.

The burden placed upon the government to prove a defendant's guilt beyond a reasonable doubt is a strict and heavy burden but it is not an impossible one. It does not require the government to prove a defendant's guilt beyond all possible hypothetical or speculative doubt. There are probably very few, if any, things in human affairs that can be proved to an absolute certainty, and the law does not require that. But the evidence must exclude in your minds any reasonable doubt about the defendant's guilt of any crimes he's accused of.

A reasonable doubt may arise from the evidence produced or from a lack of evidence. If you conclude the evidence may reasonably permit either of two conclusions with respect to a particular charge, one that the defendant is guilty as charged and the other the defendant is not guilty, if that's the case, then you must, in those circumstances, find him not guilty.

Reasonable doubt exists when, after you've considered, compared and weighed all the evidence using your reason and common sense, you cannot say that you have a settled conviction that the charge is true. Conversely, we say the fact is proved beyond a reasonable doubt if, after careful consideration of all the evidence, you are left with a settled conviction that the charge is true. A reasonable doubt is not speculation or supposition or suspicion, it is not an excuse to avoid an unpleasant duty, and it is not sympathy.

While the law does not require proof that overcomes every conceivable or possible doubt, it is not enough for the government to show that a defendant's guilt is probable or likely even if it seems a strong probability. The government must establish each element of an offense charged by proof that convinces you and leaves you with no reasonable doubt, and thus, satisfies you that you can, consistently with your oath as jurors, base your verdict upon it.

Again, if you are so convinced, then it is your duty to return a verdict of guilty. If, on the other hand, you have a reasonable doubt about whether the defendant is guilty of the crime charged, you must give the defendant the benefit of that doubt and find him not guilty.

Your verdict must be a unanimous one, whether it is guilty or not guilty. And as I have previously told you, where there are alternate ways to prove an offense under the relevant statute, you must be unanimous as to the theory on which you base any guilty verdict.

Finally, remember that in determining the guilt or innocence of the defendant, the jury should not give any consideration at this point to the matter of punishment. Your function is to weigh the evidence in the case and to determine whether the defendant is guilty or not guilty as to the charges presented in the indictment based solely on the evidence. Under your oath as jurors, you must not allow any possible punishment which may be imposed upon the defendant to influence your verdict as to guilt or not in your deliberations.

I'll wrap up in a minute, but let me see counsel at the side.