Pattern Criminal Jury Instructions of the SIMILAR ACTS

JurisdictionUnited States
SectionPattern Criminal Jury Instructions
NotesMerely reading the text of Federal Rule of Evidence 404(b) is not the best way to instruct the jury. United States v. Doran, 882 F.2d 1511, 1524 (10th Cir. 1989). This instruction should be given during trial when requested under Fed. R. Evid. 105, see Huddleston v. United States, 485 U.S. 681, 691–92 (1988), and in closing instructions. The government bears the burden of demonstrating how the prof- fered evidence is relevant to an issue in the case. In demonstrating the relevance of proffered other acts evidence, ‘‘ ‘[t]he Government must ar- ticulate precisely the evidentiary hypothesis by which a fact of conse- quence may be inferred from the evidence of other acts.’ ’’ Cuch, 842 F.2d at 1176 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985)). Before such evidence is admitted “it must tend to es- tablish intent, knowledge, motive or one of the enumerated exceptions; must have real probative value, not just possible worth; and must be reasonably close in time to the crime charged.” Id.
1.30
PATTERN CRIMINAL JURY INSTRUCTIONS
48
1.30
SIMILAR ACTS
You have heard evidence of other [crimes] [acts]
[wrongs] engaged in by the defendant. You may consider that
evidence only as it bears on the defendant’s [e.g., mo- tive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident] and for no other purpose. Of
course, the fact that the defendant may have previously
committed an act similar to the one charged in this case does
not mean that the defendant necessarily com- mitted the act
charged in this case.
Comment
This instruction is based on the Ninth Circuit’s Model Jury Instruc-
tion (criminal) 4.3. It follows Tenth Circuit precedent. See, e.g., United
States v. Cuch, 842 F.2d 1173, 1177 (10th Cir. 1988). It respects the four
factors of proper limited purpose, relevance, prejudice analysis, and the
right to a limiting instruction mentioned in Huddleston v. United States,
485 U.S. 681, 69192 (1988).
Use Note
Merely reading the text of Federal Rule of Evidence 404(b) is not the
best way to instruct the jury. United States v. Doran, 882 F.2d
1511,
1524 (10th Cir. 1989). This instruction should be given during trial when
requested under Fed. R. Evid. 105, see Huddleston v. United States, 485
U.S. 681, 69192 (1988), and in closing instructions.
The government bears the burden of demonstrating how the prof-
fered evidence is relevant to an issue in the case. In demonstrating the
relevance of proffered other acts evidence, ‘‘ ‘[t]he Government must ar-
ticulate precisely the evidentiary hypothesis by which a fact of conse-
quence may be inferred from the evidence of other acts.’ ’’ Cuch, 842 F.2d
at 1176 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.
1985)). Before such evidence is admitted “it must tend to es- tablish
intent, knowledge, motive or one of the enumerated exceptions; must
have real probative value, not just possible worth; and must be
reasonably close in time to the crime charged.” Id.

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