I took some time to work on the search boxes. I posted about them a
couple of weeks ago, but I have a problem.
The official, current, Ninth Circuit civil and criminal instructions are invisible to Google. Try searching for a bit of text from a Ninth Circuit instruction; you'll bring up older copies of the instructions that are on other sites, but not the current ones. Interestingly, they are not invisible to Bing or Yahoo.
I tried posting copies of them on this site, with a redirect to the Ninth Circuit site at the top of the page, but that did not work. I assume that the redirect prevented Google from reading them here, so they did not get picked up by the Google search engine.
There are no official pattern instructions, civil or criminal, posted on the First Circuit Web site. I believe that they used to post a set of criminal pattern instructions dated 1997, but not any more.
For some years Judge Brock Hornby (D. Maine) updated and posted the 1997 criminal instructions on the
Maine District Court Web site, labeled "DISTRICT OF MAINE INTERNET SITE EDITION." He is on senior status now, and Maine Chief District Judge Nancy Torresen has continued to update these instructions.
I am not aware of any official civil instructions, but a set of civil instructions authored by Judge Hornby is on the site as well. These instructions are no longer being updated.
Although not official, I think that these instructions would be of interest to litigators, especially in the First Circuit, so they are linked and indexed on trialdex.
The criminal instructions were last updated on October 24, 2018, to add a new instruction 4.18.157 ("Bankruptcy Fraud, Scheme or Artifice to Defraud, 18 U.S.C. § 157").
I intend to closely follow changes to federal jury instructions, and to detail each change. Some of those changes are described in blog entries that appear below. Note that the site also offers free jury instruction email alerts that will definitely keep you up-to-date on the federal side.
This is more difficult to do for state instructions, which differ greatly in how they update their instructions. Some sets are quite old, and have not been updated in years. In other cases you have to drill down to find the dates of revisions. I am not sure how reliable I will be in catching every change. We'll see how I do as the site matures.
I did a survey today, and found three states that have made changes in 2019. I have summarized and linked the changes, and in some cases have added links to archived versions of the changed instructions, so that you can see the precise changes.
In January 2019 New York deleted its “Certain Former Crimes” and distributed the contents to the folder of the pertinent crime. It also revised a number of its
criminal instructions. A description of the changes
appears here. The prior versions are
Vermont regularly updates its criminal instructions, and describes the changes on
Trialdex maintains a pretty complete list (the most comprehensive list on the Internet) of jury instruction sites. Please
let me know if I have missed any.
On January 24, 2019, the Eleventh Circuit approved changes to the following criminal instructions:
Mail fraid and wire fraud have similar elements; the only real difference is that mail fraud involves mailing, and wire fraud requires a wire transmission that passes in interstate commerce. Consequently, changes to
Instructions O50.1 ("Mail Fraud") and
051 ("Wire Fraud") are the same. A phrase was stricken from the first element of each offense: "(1) the Defendant knowingly devised or participated in a scheme to defraud someone, or obtain money or property, by using false or fraudulent pretenses, representations, or promises."
The definition of "scheme to defraud" in those instructions now begins:
"includes means any plan or course of action."
The definition of "intent to defraud" in O50.1 and O51 has been revised as follows:
To act with "intent to defraud" means to act knowingly and with the specific
intent to deceive use false or cheat someone, usually for personal financial gain fraudulent pretenses, representations, or promises to cause financial loss to someone
else or injury. Proving intent to deceive alone, without the intent to cause loss or injury, is not sufficient to prove intent to
A new paragraph has been added to the Annotations explaining that the revision was because of United States v. Takhalov, 827 F.3d 1307, 1315 (11th Cir. 2016), altered in part on denial of rehearing by United States v. Takhalov, 838 F.3d 1168 (11th Cir. 2016) ("A jury cannot convict a defendant of wire fraud, then, based on misrepresentations amounting only to a deceit." (internal quotation marks and citation omitted)).
The definition of "intent to defraud" in
Instructions O50.2 ("Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§  and 1346"),
O50.3 ("Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§  and 1346, Private Employee"), and
O50.4 ("Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§  and 1346 Independent Contractor or Other Private Sector Contractual Relationship Besides Employer/Employee") has been revised as follows:
To act with "intent to defraud" means to act knowingly and with the specific
intent to use false or fraudulent pretenses, representations, or promises to cause loss of honest services. Proving intent to deceive
someone, usually for personal financial gain or alone, without the intent to cause financial loss to someone else
of honest services, is not sufficient to prove intent to
Once again, the Annotation attributes the change to Takhalov. A discussion of Skilling and Aunspagh that formerly appeared in O50.4 now appears in O50.3 as well.
A new paragraph has been added below the elements list in
Instruction O98 ("Controlled Substances - Possession with Intent to Distribute 21 U.S.C. § 841(a)(1)"):
The Defendant "knowingly" possessed the controlled substance if (1) the Defendant knew [he][she] possessed a substance listed on the federal schedules of
controlled substances, even if the Defendant did not know the identity of the substance, or (2) the Defendant knew the identity of the substance [he][she] possessed, even if the Defendant did not know the substance was listed on the federal schedules of controlled substances.
The Annotation explains:
McFadden v. United States, 135 S. Ct. 2298 (2015), the U.S. Supreme Court
pronounced that there are two ways to satisfy the knowledge requirement under
§ 841(a)(1). "Th[e] knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was." Id. at 2304. "The knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed," even if the defendant did not know that the drug is "listed on the schedules" as a controlled substance. Id. (citation omitted).
The first element in
Instruction O106.1 ("Possession of Unregistered Firearm 26 U.S.C. § 5861(d)") has been revised to read: "(1) the Defendant
knowingly possessed a firearm." The Annotation, which used to be an analysis of the knowledge element in light of
Staples v. United States, 511 U.S. 600 (1994), now simply reads: "No annotation is associated with this instruction."
On January 24, 2019, the Eleventh Circuit approved changes to the following instructions:
Instructions 4.1 ("Public Employee—First Amendment Claim—Discharge or Failure to Promote—Free Speech on Matter of Public Concern") and
4.2 ("Public Employee—First Amendment Claim—Discharge or Failure to Promote - Political Disloyalty or Key Employee") have been modified to cover circumstances where a public employer takes action against a public employee because of a mistaken belief that the employee had exercised First Amendment rights by speaking on a matter of public concern. The changes were made to conform the instructions to
Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412 (2016).
The Third and Ninth Circuit have also noted Heffernan in their current instruction sets.
Instructions 4.6 ("Title VII—Civil Rights Act—Workplace Harassment by Supervisor—No Tangible Employment Action Taken (with Affirmative Defense by Employer)") and
4.7 ("Title VII—Civil Rights Act—Workplace Harassment by Co-Worker or Third Party—No Tangible Employment Action Taken") used to reference discrimination against employees in the "terms and conditions" of employment. Those references have been changed to "terms or conditions."
The Circuit also revised its criminal instructions. We will look at those changes tomorrow.
Ninth Circuit made extensive revisions to its criminal instructions in January 2019. I have posted a redline/strikeoutpdf file showing the changes. A close look, however, reveals that most of the changes had to do with the issue of attempt. These changes were not substantive.
Explanation: Federal crimes may only be charged as attempts if the statute so specifies. In the former version of the instructions, some of these crimes had their own instructions, e.g., Attempted Kidnapping, Attempted Murder, and so on. The comment to these instructions included language from United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007), supporting the instructions' definition of "substantial step." The Goetzke language was (and is) in the prior version of
instruction 5.3 (Attempt).
In the new edition, instructions for other crimes that can be prosecuted as attempts were retitled to make that status clear; e.g.,
instruction 8.28 has been renamed from PASSING COUNTERFEIT OBLIGATIONS to PASSING OR ATTEMPTING TO PASS COUNTERFEIT OBLIGATIONS. Where this was done the accompanying comment was revised to include the Goetzke language.
There are other changes in the comment sections discussing attempt, but these changes just involve moving sentences from one place to another without any change to the content or substance of the guidance.
There were other changes to the instructions, mostly minor, but some substantive:
A new paragraph added to the end of the comment to
instruction 3.5 tells courts to make sure that "language used in a verdict form does not require the jury to find the defendant not guilty beyond a reasonable doubt in order to acquit," an issue that arose in United
States v. Espino, 892 F.3d 1048, 1053 (9th Cir. 2018).
The comment to Instruction 6.4 (Insanity) was revised to note that a "special verdict is required to resolve an insanity defense. if requested by the government or the defendant, or on the court's own motion. See 18 U.S.C. § 4242(b)." Suggested language for that special verdict appears at the end of the instruction.
The comment to Instruction 6.8 (Self-Defense) now concludes: "For self-defense claims involving excessive force, see United States v. Ornelas, 906 F.3d 1138, 1147-48 (9th Cir. 2018)."
Instruction 6.9 has been renamed from "INTOXICATION-DIMINISHED CAPACITY" to "DIMINISHED CAPACITY," and specifies that the intoxication can be from drugs or alcohol. The comment notes that, while the defense is generally unavailable to general intent crimes, that it can apply to attempts to commit those crimes, because attempts require specific intent. Regarding mental diminished capacity, the comment now notes that "there must be some evidence (however weak) of a link between the defendant's mental illness and his ability to form a specific intent."
A new paragraph appears at the end of the comments to
Instructions 8.3 and 8.4 noting new case law regarding the definition of "official duties."
The comment to Instruction 8.20 (conspiracy-elements) now cites United States v. Gonzalez, 906 F.3d 784, 792 (9th Cir. 2018), which notes that a tacit agreement is sufficient for conspiracy conviction, and holds that proof of overt act is not
necessary for conspiracy to violate civil rights.
Gonzalez is also cited in the comment to
(obstruction of justice), noting that reports prepared by law enforcement officers qualify as "records" or "documents" under 18 U.S.C. § 1519, and that the government does not have to prove that the matter in question falls within the jurisdiction of a federal department or agency.
In United States v. Smith, 831 F.3d 1207, 1217-18 (9th Cir. 2016),
the Ninth Circuit considered whether it was error for the lower court to
state that the purpose "must be more than merely incidental." The Smith
Court noted this phrasing could imply the standard was too low, which
could result in error. Id. at 1219. The Court noted, however, that the
instruction should not use the word dominant because it "has a flavor"
"suggest[ing] that the standard is very high." Id. Ultimately the court
declined to weigh on which word should be used but said "substantial"
"would convey the idea with more precision." Id.
The comment to
used to begin with "If there is an issue whether there were two racketeering activities within ten years, the instruction should be modified by inserting 'within a period of ten years' after 'acts of racketeering were committed' at the
end of the first element." That sentence has been deleted, and the ten years language simply inserted into the instructions.
now ends with "See Reves v. Ernst & Young, 507 U.S. 170, 184 (1993) (holding that liability under section 1962 may also extend to lower rung participants
who are under the direction of upper management)."
The comments to
and 8.169 now reference
United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003), which
defines "sexual act" as "skin-to-skin touching," not touching over clothes.
(SEXUAL ABUSE-INCAPACITY OF VICTIM) now asserts that a "person need not be physically helpless to be physically incapable of declining participation in or communicating unwillingness to engage in sexual act," citing United States v. James, 810 F.3d 674, 679 (9th Cir. 2016).
The comment at the end of
Instruction 8.188—"For example, if a stolen item is concealed so that it may 'cool off,' the concealment is an integral part of the movement in interstate commerce rather than a break in it"—has been deleted.
The elements lists for
and 8.195 have been edited to specify the Bail Reform Act. This is explained in the first paragraph of the comment to 8.194, which now reads:
If the defendant becomes a fugitive prior to the hearing, the defendant’s release is no
longer pursuant to the Bail Reform Act, and the defendant thus may not be convicted under
§ 3146(a).United States v. Castaldo,
636 F.2d 1169, 1172 (9th Cir. 1980). Vacating a hearing prior to its occurrence precludes satisfaction of the second element because the defendant is no longer “under . . . order to appear on any date certain”; this rule applies even where the hearing is vacated because the defendant has failed to appear at prior hearings. United States v. Fisher,
137 F.3d 1158, 1163 (9th Cir. 1998).
As indicated below, most of the work in creating this site went into the
federal jury instruction index. But the index is limited in two respects; it does not include every single word, and it is limited to federal instructions. So I have added the ability to do full text searches for both federal and state jury instructions.
Folks who use Google a lot are familiar with the "site:" search query operator. This tells Google to search a particular folder on the Web (and its child folders). Consequently, if you wanted to limit a search to, say, Illinois murder jury instructions, you could limit the query to the folder where Illinois keeps its criminal jury instructions (which happens to be illinoiscourts.gov/circuitcourt/criminaljuryinstructions), and search using this query: murder site:illinoiscourts.gov/circuitcourt/criminaljuryinstructions.
This is not that useful, but some of you will see where I am going with this.
You can embed a Google query on a Web page using simple html; something like
That only gets you one site. To get all the sites, just add a bunch of "OR site:" terms to the end of the value (the OR has to be capitalized).
Courts are somewhat undisciplined about their folder use, and some of these folders likely have documents in them that have nothing to do with jury instructions. I add the word "instructions" at the beginning, which narrows things acceptably.
So you could write html that looks like this:
<form action="http://www.google.com/search" method="get">
<input type="text" name="q"/>
<input type="submit" value="state" />
<input type="hidden" name="query" value= "instruction site:public.courts.alaska.gov/web/cvpji/docs/ OR site:public.courts.alaska.gov/web/crpji/docs/ OR site:azbar.org/media/ OR
and so on ....
Unfortunately, Google limits the query size to 32 words, which in turn limits the number of sites that can be searched simultaneously. So I broke the queries into three parts using "radio buttons": federal; state (AL-LA)(Alabama-Louisiana); and state (MA-WA) (Massachusetts-Washington).
This is an imprecise tool, but, I think, a helpful one.
Anyway, that is how I did it. Coding it was the easy part. The hard part was finding all the jury instructions, and then keeping track when the folders get renamed or moved. Which is the reason you use this site instead of making your
I learned many years ago that pattern jury instructions and their annotations are the best shortcut for just about any legal research project
(explanation here). The federal instructions are particularly authoritative and well done.
The chief impediment to using them efficiently is that they are on many different sites. I used to search the sites one at a time, looking for answers to particular legal questions. So it seemed like a useful idea to index them.
Go ahead and give the index a spin. The index entries are more robust than typical index entries. They list the court and title, and sometimes include italicized text showing how the term is used in context.
I limited the index to federal instructions; it would have taken forever to include the state instructions as well. Indexing just the federal instructions was a daunting task. There are over 4,000 instructions in all, which, when you include the annotations, comes to about 10,000 pages of text.
So, I took these steps in creating the index.
I read all of the instructions and annotations, and extracted every significant word or phrase, every reference to the U.S.C. or C.F.R., and every reference to a U.S. Supreme Court decision.
I used a database program to sort all the terms alphabetically, and delete all of the duplicates. I ended up with over 25,000 terms.
I wrote a computer program that would put the terms up on the screen one at a time, and display each occurence in context. I would then either accept or reject the occurance. If I accepted the term, the computer would generate the index entry. I ended up with more than 100,000 entries.
This took the better part of a year. The final result badly needs an edit, which will take months. I decided, however, that this first draft is actually a pretty useful tool, even in its current state, and so I posted it on this "beta" edition of the site.
Remember that this is just one way to look up instructions. The site has
up-to-date links to all of the federal and state instructions, with full text search boxes (I'll talk about the search boxes tomorrow). Use the index, the links, and the search boxes to make sure you find the instruction or annotation you need.
In another post-Castro decision, the Ninth Circuit rejected a municipality's "argument that we must also apply a 'shocks the conscience' standard to [a parent's] Fourteenth Amendment substantive due process claim under Monell." Mann v. Cnty. of S.D., 907 F.3d 1154 (9th Cir. 2018) (distinguishing "direct" Monell claim based on municipality's policy or practice from "indirect" Monell claim based on constitutional violation resulting from omission and which requires showing of "deliberate indifference").
The comment to instruction 9.9 replaced a citation to a 2008 case with a citation to Barone v. City of Springfield, 902 F.3d 1091, 1099, 1101-06 (9th Cir. 2018) ("Whether an individual speaks as a public employee is a mixed question of fact and law .... First, a factual determination must be made as to the scope and content of a plaintiff’s job responsibilities .... Second, the ultimate constitutional significance of those facts must be determined as a matter of law.”) (citations and quotation marks omitted). This was just an updated cite, not a change in the circuit's position. Another reference to Barone was tacked on at the end:
This instruction also should be modified when a public employee alleges an adverse employment action based on the employee's refusal to enter into an unconstitutional prior restraint, limiting the public employee's right to speak as a private citizen on a matter of public concern. See Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018).
Another citation to Barone appears at the end of
"Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018) (holding that prior restraint prohibiting police officer from speaking or writing 'anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees' violated First Amendment)."
A sentence was added at the end of the comment to
"In addition, 'while the traditional Fourth Amendment analysis 'is predominantly an objective inquiry,' the 'actual motivations' of officers may be considered when applying the special needs doctrine.' Scott v. City. of San Bernardino, 903 F.3d 943, 949 (9th Cir. 2018) (affirming summary judgment in favor of plaintiff middle school students unreasonably arrested without probable cause)."
For a case that may blur the distinction between procedural and substantive due process, see Mann v. Cnty. of S. D., 907 F.3d 1154 (9th Cir. 2018) (holding that county violated parents' Fourteenth Amendment substantive due process rights by performing medical examinations on parents' children without notifying parents and without obtaining either parents' consent or judicial authorization).
9.33A PARTICULAR RIGHTS-FOURTEENETH AMENDMENT-
DUE PROCESS-DELIBERATE OR RECKLESS SUPPRESSION OF EVIDENCE
As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. The Fourteenth Amendment protects against a person being subjected to a criminal trial when favorable evidence has been deliberately or recklessly withheld from the prosecutor. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff's claim].
For the plaintiff to prevail on [his][her] claim of deliberate or reckless suppression of evidence, the plaintiff must prove the following elements by a preponderance of the evidence:
The defendant [name] suppressed evidence that was favorable to the accused [plaintiff's name] from the prosecutor and the defense;
The suppression harmed the accused [plaintiff's name]; and
The defendant [name] acted with deliberate indifference to an accused's rights or for the truth in suppressing the evidence.
"Deliberate indifference" is the conscious or reckless disregard of the consequences of one's acts or omissions.
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3-9.9. See Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018); Tennison v. City & Cnty. of S.F., 570 F.3d 1078, 1087, 1089 (9th Cir. 2009);
see also Carrillo v. Cnty. of L.A., 798 F.3d 1210, 1219 (9th Cir. 2015) ("The law in 1984 clearly established that police officers were bound to disclose material, exculpatory evidence.").
"Because a substantial majority of the reported Supreme Court and Ninth Circuit decisions arise under the employment provisions of the ADA, these instructions are intended to cover focus on employment claims under the ADA.
Added before "In Chevron U.S.A.": "For a case involving a pre-employment claim under the ADA, see E.E.O.C. v. BNSF Rwy. Co., 902 F.3d 916 (9th Cir. 2018)."
Instruction 12.1 is renumbered as 12.1A, and the elements paragraphs are edited as follows:
the plaintiff has a disability as that term is defined later in these instructions
physical or mental impairment;
such physical or mental impairment substantially limited one or more major life activities;
the plaintiff was a qualified individual as that term is
later defined later in these instructions; and
the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]]] because of the plaintiff's disability [his/her] physical or mental impairment.
A paragraph (that formerly appeared in 12.2) was added at the end of the instruction:
Major life activities are the normal activities of living that a nondisabled person can do with little or no difficulty, such as [specify applicable major life activities].
The comment now begins with two new paragraphs (which formerly appeared in instruction 12.2):
Major life activites are defined in § 12102(2)(A)-(B) and include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The Ninth Circuit has recognized interacting with others as a major life activity. Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014).
The term "substantially limits" must be interpreted consistently with the ADAA. Id. § 12102(4)(B). "'An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.'" Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)).
The plaintiff claims that [his] [her] record of disability was the reason for the defendant's decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:
the plaintiff has a record of a physical or mental impairment;
such physical or mental impairment substantially limited one or more major life activities;
the plaintiff was a qualified individual as that term is later defined in these instructions; and
the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his/her] record of a physical or mental impairment].
If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
See Comment to Instruction 12.1A (ADA Employment Action-Actual Disability-Elements).
The plaintiff claims that because the defendant regarded [him] [her] as disabled, the
defendant [discharged] [did not hire] [did not promote] [demoted] [state other adverse action]
[him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:
the plaintiff was regarded as having a physical or mental impairment;
the plaintiff was a qualified individual as that term is later defined in these
the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other
adverse action] because [he] [she] was regarded as having a physical or mental
If you find that the plaintiff has proved all of these elements, your verdict should be for
the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
See Comment to Instruction 12.1A (ADA Employment Action—Actual
This instruction is intended to address the ADA Amendments Act of 2008, which
clarified two points about “regarded as” disability claims:
A plaintiff meets the requirements of being “regarded as” having a disability if he
establishes that he has been discriminated against “because of an actual or
perceived impairment whether or not the impairment limits or is perceived to limit
a major life activity.” (emphasis added). 42 U.S.C. § 12102(3)(A).
A plaintiff cannot be “regarded” as having a disability if the actual or perceived
impairment is “transitory and minor.” 42 U.S.C. § 12102(3)(B). A “transitory”
impairment is defined as one “with an actual or expected duration of 6 months or
The “transitory and minor” exception is an affirmative defense, and as such, the employer
bears the burden of establishing the defense. Nunies v. HIE Holdings, Inc., 908 F.3d 428, 435 (9th Cir. 2018).
The last paragraph of instruction 12.2 was moved to instruction 12.1. A new paragraph appears at the beginning of the comment:
Some form of this instruction should be given when a claim involves a theory of actual or record disability. Whether this instruction or a modified version should be given when a claim involves only a theory that the plaintiff was "regarded as" having a disability may require further analysis. See Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018).
The last six paragraphs of the comment were removed or moved elsewhere.
In Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit worded the elements slightly differently. The Ninth Circuit stated: "In order to prove copyright infringement, a plaintiff must show (1) that he owns a valid copyright in his work, and (2) that the defendants copied protected aspects of the work's expression." Skidmore, 905 F.3d at 1125 (citation, quotation marks, and brackets omitted). The Ninth Circuit added: "Whether Defendants copied protected expression contains two separate and distinct components: 'copying' and 'unlawful appropriation.'" Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
Another paragraph about Skidmore was added at the end of the comment to
In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-30 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of "originality" in the context of a case involving the alleged copyright infringement of a musical composition. Among other things, the Ninth Circuit explained: "To prove 'unlawful appropriation,' a higher showing of substantial similarity is needed. The works must share substantial similarities and those similarities must involve parts of the plaintiff's work that are original and therefore protected by copyright." Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
Another paragraph about Skidmore was added at the end of the comment to
In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1130-31 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of the "inverse ratio rule" in the context of a case involving the alleged copyright infringement of a musical composition.
In addition, in Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-27 (9th Cir. 2018), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit found reversible error in the district court's failure to instruct on "selection and arrangement" in considering extrinsic substantial similarity.
A string of case citations was added at the end of the first paragraph of the comment to
A new paragraph was added to the introduction to
In Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018), the Ninth Circuit thoroughly discussed and applied many of the key concepts that appear in securities cases, such as falsity, omissions, and materiality. The case also clarifies the circumstances for correctly applying the doctrine of
A principal goal of this site is to be a complete and up-to-date collection of state and federal pattern jury instructions on the Internet. Nobody else does this. When jury instructions are added or revised, the changes will be analyzed on the trialdex jury instruction blog, using redline/strikeout quotations to clarify the changes.
To get started, I have some notes to share regarding 2019 instruction amendments. Let's start with the
Sixth Circuit, which replaced their December 2017 instructions with a revised set dated January 1, 2019.
(1) You are to consider only the evidence in the case. You should use your common sense in weighing the evidence. Consider itthe evidence in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.
(2) In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this an "inference." A jury is allowed to make reasonable inferences, unless otherwise instructed. Any inferences you make must be reasonable and must be based on the evidence in the case.
(3) The existence of an inference does not change or shift the burden of proof from the government to the defendant.
The commentary indicates that the new first sentence was derived from treatises, and that "[p]aragraphs (2) and (3) were added in 2018, not to reflect a change in the law but to provide some additional plain-English explanation of permitted inferences."
The extended discussion of the inference of guilty knowledge that may be drawn from the fact of unexplained possession of stolen goods has been removed from the commentary to
instruction 7.16, and replaced with a citation to relevant cases. The instruction itself is unchanged.
Instruction 7.16 now refers to "recorded conversations" rather than "tape recordings." A new paragraph has been added at the end of the commentary"
If the case involves recordings in a foreign language and English transcripts are provided to the jury, see United States v. Garcia, 20 F.3d 670, 672-73 (6th Cir. 1994),
citing United States v. Moreno, 933 F.2d 362, 375 (6th Cir. 1991) and United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985).
The general rule is that a defendant cannot stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it. Old Chief v. United States, 117 S. Ct. 644, 653 (1997); United States v. Luck, 852 F.3d 615, 624 (6th Cir. 2017). In Old Chief, the Court carved out an exception to this rule, holding that the government cannot refuse a defendant's offer to stipulate to felon status in felon-in-possession prosecutions under 18 U.S.C. § 922(g)(1).Old Chief, 117 S. Ct. at 654-55. The Supreme Court limited this exception to cases involving proof of felon status, see 117 S. Ct. at 651 note 7, and the Sixth Circuit has rejected attempts to expand the exception. Luck, 852 F.3d at 625.
(1) The defendant is charged in Count _____ of the indictment with conspiracy to [insert object(s) of conspiracy]. If you find the defendant guilty of this charge, you will then be asked to determine the quantity of the controlled substance involved in the conspiracy as a whole that was attributable to him as the result of his own conduct and the conduct of other co-conspirators that was reasonably foreseeable to him. You will be provided with a special verdict form for this purpose.
(2) If you find by unanimous agreement that the government has proved beyond a reasonable doubt that the conspiracy as a whole involved a quantity of at least ______ of a mixture or substance containing a detectable amount of [name controlled substance] was attributable to defendant as the result of his own conduct and the conduct of other co conspirators that was reasonably foreseeable to him, then please indicate this finding on the special verdict form.
[(3) If you do not so find, you will then be asked to determine whether the government has proved a lesser quantity. If you unanimously find that the government has proved beyond a reasonable doubt that the conspiracy as a whole involved a quantity of at least _______ of a mixture or substance containing a detectable amount of [name controlled substance] was attributable to defendant as the result of his own conduct and the conduct of other co conspirators that was reasonably foreseeable to him, then please indicate that finding on the special verdict form.]
(4) In determining the quantity of the controlled substance involved in the conspiracy as a whole, you need not find that the defendant knew thethat his offense involved this quantity involved in the offense of drugs.
The revised commentary notes that courts have been inconsistent in addressing whether mandatory minimum sentences for § 846 drug conspiracy offenses are determined by "conspiracy wide" or "defendant specific" drug quantities, and encourages courts to take the approach outlined in United States v. Swiney, 203 F.3d 397, 405-06 (6th Cir. 2000).
Check for and fix broken links. I used an online free links checker at
https://www.brokenlinkcheck.com/broken-links.php. No particular reason to use that one; it was the first one I tried, and it worked. It found 25 broken links; not too bad (the site probably has hundreds of thousands of links).
Checked the stats. As noted below, I have not actively promoted the site, so I did not expect much. My hosting service, x10hosting, has something called a "cpanel" for common site maintenance tasks. If you scroll down, there is a "metrics" section, with something called "Awstats." It has these numbers:
Nothing startling here. Looks like there was a spike in January, and, of course, March is incomplete. I'll check back later to see if I am building any momentum.
I have reached a bit of a milestone in the project. The
federal jury instruction index is working now. It is a little rough, so I'm not going to start promoting it yet. But I think the basic functionality is there, so I posted it today.
I am going to start posting on the blog now. I have not checked the numbers lately, but I assume that I am getting minimal page views at this point, so this blog is really a collection of progress notes about the site, mostly for my own benefit.
I am calling this a "jury instruction blog," and hope to post regularly about new or amended jury instructions. I'll also take some time to explain how to use this Web site, and how it was put together.
I think some of you might be interested in the nuts and bolts of creating a Web site, how it is hosted and updated, and how it is promoted and monetized. I am not an expert in those things, but I'll post what I learn as I go along. The "monetizing" part is very speculative at this point, but I have some ideas.
This site has not been officially launched yet. I am still working on the
federal jury instruction index, a very large work that will take several more months to complete. So for the coming months there will not be new blog entries here (I hope to keep this page very active once the site is completed).