Instruction 2.120, Criminal Model Jury Instructions for Use in the District Court

FUNCTION OF THE JURY

WHAT IS EVIDENCE

CREDIBILITY OF WITNESSES

Your function as the jury is to determine the facts of this case.

You alone determine what evidence you believe, how important any

evidence is that you do believe, and what conclusions to draw from

that evidence. In making these determinations, you are to use your

common sense, life experience, and good judgment.

You are to decide what the facts are solely from the evidence

admitted in this case. In evaluating the evidence and determining the

facts, keep in mind that we all tend to perceive information and form

opinions based on our own personal experience and background.

This tendency may cause us to hold biases of which we may or may

not be conscious. As I previously instructed you, you must not allow

bias – whether held consciously or subconsciously – to interfere with

your ability to fairly evaluate the evidence, apply the law as I instruct

you, or render a fair and impartial verdict based on the evidence

before you.

The evidence consists of the testimony of witnesses, as you

recall it, (any documents or other things that were received into

evidence as exhibits) (and any fact on which the lawyers have agreed

or which I have told you that you may accept as proved).

[See Instruction 2.240 (Direct and Circumstantial Evidence) for additional instructions on direct and

circumstantial evidence].

The following instruction should not be given if a defendant is pursuing a Bowden

defense and the judge has decided not to issue the so-called Bowden instruction

(Instruction 3.740, Omissions in Police Investigation). In such a case, the following

instruction could have the effect of undermining the defendant’s Bowden defense

because it references concepts that could be relevant to a claim that there were

omissions in the police investigation. See Commonwealth v. Grier, 490 Mass. 455, 475

(2022); Commonwealth v. Alvarez, 480 Mass. 299, 318 (2018). The court retains

discretion to address with the defendant any objections to the instruction.

Otherwise, proceed with instruction as written.

Picture in your minds that all of the evidence –

[(testimony) (exhibits) (stipulations)] – went into a box. That

box is now closed. Your verdict(s) must be based on what

is in the box, together with any reasonable inferences you

choose to draw from it.

Your determination of the facts must not be based on

speculation or conjecture. During your deliberations one of

you might say, “what about this?” or “what about that?”

Well, if the “this” or the “that” is not in the box – if it is mere

guesswork – don’t consider it.

In short, base your verdict on the evidence and any

reasonable inferences you choose to draw from it, but do

not guess or speculate about things about which there is no

evidence.

Of course, the quality or strength of the proof is not determined

by the sheer volume of evidence or the number of witnesses. It is the

weight of the evidence that is important.

Some things that occur during a trial are not evidence and you

may not consider them as evidence in deciding the facts of this case.

The complaint itself is not evidence. A question put to a witness is

never evidence; only the answers are evidence. [(Also, you may not

consider any answer that I struck from the record and told you to

disregard. Do not consider such answers.) (You may not consider

any item that was marked for identification but was never received in

evidence as an exhibit.)] Anything that you may have seen or heard

when the court was not in session is not evidence.

The opening statements and the closing arguments of the

lawyers are not evidence. They are only intended to assist you in

understanding the evidence and the contentions of the parties. If

your memory of the testimony differs from the attorneys’, you are to

follow your own recollection. You should not consider anything I

have said or done during the trial as any indication of my opinion as

to what your verdict(s) should be.

In evaluating a witness’s testimony, you have to decide what

testimony to believe, and how much weight to give that testimony.

You should give the testimony of a witness whatever degree of belief

and importance that you judge it is fairly entitled to receive.

You are the sole judges of the credibility of a witness. You may

believe everything a witness says, part of it, or none of it. If there are

any conflicts, discrepancies, or inconsistencies in the testimony, you

should examine them carefully. You may consider whether a witness

was candid or guarded, responsive or evasive, and whether the

testimony is reasonable or unreasonable, probable or improbable.

You may take into account how good an opportunity a witness had to

observe the facts about which the witness testifies, and whether the

testimony seems accurate. You may also consider evidence, if any,

about a witness’s motive for testifying, whether a witness displays

any bias in testifying, and whether or not a witness has any interest in

the outcome of the case.

In deciding whether to believe a witness and how much

importance to give a witness’s testimony, you must look at all the

evidence, drawing on your own common sense, life experience, and

good judgment.

Consider the evidence as a whole. Do not make up your mind

about what the verdict should be until after you have gone to the jury

room to decide the case, and you and your fellow jurors have

discussed the evidence. Keep an open mind until then. Once you

have determined the facts, apply the law as I explain it to you to the

facts in order to decide the verdict(s).

The credibility of witnesses is always a jury question, Commonwealth v. Sabean, 275

Mass. 546, 550 (1931); Commonwealth v. Bishop, 9 Mass. App. Ct. 468, 471 (1980), and

no witness is incredible as a matter of law, Commonwealth v. Hill, 387 Mass. 619, 623-24

(1982); Commonwealth v. Haywood, 377 Mass. 755, 765 (1979). Inconsistencies in a

witness's testimony are a matter for the jury, Commonwealth v. Clary, 388 Mass. 583, 589

(1983); Commonwealth v. Dabrieo, 370 Mass. 728, 734 (1976), which is free to accept

testimony in whole or in part, Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978).

Disbelief of a witness is not affirmative evidence of the opposite proposition.

Commonwealth v. Swartz, 343 Mass. 709, 713 (1962).

In charging on credibility, the judge should avoid any suggestion that only credible

testimony constitutes evidence. See Commonwealth v. Gaeten, 15 Mass. App. Ct. 524,

531 (1983).

SUPPLEMENTAL INSTRUCTIONS

1. Stipulations of fact or stipulation to an element of the offense. The

Commonwealth and the defendant have agreed, or stipulated, that

______________. This means that they both agree that this is a fact.

You are therefore to treat this fact as undisputed and proved.

“[W]hen the defendant and the Commonwealth have agreed to stipulate to the existence

of an element in a case, the stipulation should be placed before the jury before the close

of the evidence. Such a rule is consistent with the acknowledged burdens of production

and proof that rest with the Commonwealth in a criminal case.” Commonwealth v. Ortiz,

466 Mass. 475, 484 (2013). It is incumbent on the prosecution to ensure that the stipulation

to the element is provided to the jury by some means, and failure to do so may result in a

substantial risk of a miscarriage of justice. See Commonwealth v. Kurko, 95 Mass. App.

Ct. 719, 721-722 (2019).

Under Mass. R. Crim. P. Rule 23, a stipulation to an element of the offense must be

memorialized in writing and must be signed by the Commonwealth, defense counsel, and

the defendant. It shall be read to the jury prior to the close of the Commonwealth’s case in

chief and may be introduced as an exhibit.

Where the evidence includes a stipulation to all of the facts, the defendant “in effect

relinquishes the same rights as one who pleads guilty,” and the judge must offer the

defendant “the same safeguards that surround the acceptance of a guilty plea”.

Commonwealth v. Hill, 20 Mass. App. Ct. 130, 132 (1985). See also Commonwealth v.

Castillo, 66 Mass. App. Ct. 34, 34-35 2006); Commonwealth v. Brown, 55 Mass. App. Ct.

440, 448-449 (2002). This must include an oral colloquy on the record, in which the trial

judge shall “question the defendant whether he recognizes that 1) he is entitled to confront

witnesses against him; 2) the Commonwealth has the burden of proving the offense

beyond a reasonable doubt; 3) he may be giving up the right not to incriminate himself; 4)

he is giving up the right to cross-examine; and 5) … he is acknowledging evidence likely

to lead to a finding of guilty.” Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289

(2009). “[T]he practice of judges allowing criminal trials to be conducted on stipulated

evidence has long been disfavored… .” Commonwealth v. Castillo, 66 Mass. App. Ct. 34,

34 (2006). See also Commonwealth v. Gomez, 480 Mass. 240, 248 (2018) (stipulated

evidence trials are disfavored).

2. Stipulated testimony. The Commonwealth and the defendant

have agreed, or stipulated, that if [name of witness] were called as a

witness, they would testify that ________________. Both parties have

agreed that [name of witness] would give that testimony if called as a

witness. You should consider that testimony in the same way as if it

had been given here in court. As with all witnesses, it is for you to

determine how believable and how significant that testimony is.

A stipulation of fact leaves that fact no longer at issue and must be accepted by the jury.

By contrast, a stipulation as to testimony does not compel the jury to accept as true all the

facts within the stipulated testimony, but permits the jury to accept the stipulated evidence

in whole, in part, or not at all. Commonwealth v. Triplett, 398 Mass. 561, 570 (1986).

It is not necessary that a stipulation of fact be formally entered as an exhibit. Sierra

Marketing, Inc. v. New England Wholesale Co., 14 Mass. App. Ct. 976, 978 (1982). The

defendant’s willingness to stipulate to a fact does not preclude the Commonwealth from

introducing evidence on that issue. Commonwealth v. Andrews, 403 Mass. 441, 451

(1988).

3. Judicial Notice. The law permits me to take notice of certain

facts that are not subject to reasonable dispute. I have decided to

accept as proved the fact that _________. Therefore, you may accept

this fact as true, even though no evidence has been introduced about

it. You are not required to do so, but you may.

All factual issues should be submitted to the jury, including matters of which the judge may

take judicial notice. Commonwealth v. Kingsbury, 378 Mass. 751, 754-755 (1979) (time of

sunset); Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 923 (1998). See Mass. G.

Evid. § 201(e) (2024) (“In a criminal case, the court must instruct the jury that it may or may

not accept the noticed facts as conclusive”).

The general rule in Massachusetts is that courts do not take judicial notice of regulations;

they must be put in evidence. Shafnacker v. Raymond James & Assocs., Inc., 425 Mass.

724, 730 (1997). This rule has been overridden in part by G.L. c. 30A, § 6, which requires

judicial notice of regulations published in the Code of Massachusetts Regulations.

Shafnacker, supra, 425 Mass. at 730 n.7.

4. Depositions. A deposition is a transcript of testimony that

was given out of court by a witness under oath, in response to

questions asked by either of the attorneys. You are to treat a

deposition in the same way as if the testimony had been given here in

court. As with all witnesses, it is for you to determine how believable

and how significant that testimony is.

Mass. R. Crim. P. 35(g).

5. Discrepancies in testimony. In evaluating testimony, you may

find inconsistencies or discrepancies. They may or may not cause

you to discredit such testimony. Consider whether they involve

important facts or only minor details, and whether any

inconsistencies or discrepancies result from innocent lapses of

memory or intentional falsehoods.

6. Prejudice. It would be improper for you to allow any feelings

you might have about the nature of the crime to interfere with your

decision. Any person charged with any crime is entitled to the same

presumption of innocence, and the Commonwealth has the same

burden of proving the defendant’s guilt beyond a reasonable doubt.

The fact that the prosecution is brought in the name of the

Commonwealth entitles the prosecutor to no greater consideration

and no less consideration than any other litigant, since all parties are

entitled to equal treatment before the law.

The word “verdict” comes from two Latin words meaning “to

say the truth,” and that is what the law looks to your verdict(s) to do

based solely on the evidence in the case. Justice is done when a

verdict is returned based on the evidence and the law regardless of

whether that verdict is guilty or not guilty.

Commonwealth v. Smith, 387 Mass. 900, 909-10 (1982) (verdict must be based on

evidence and not sympathy); Commonwealth v. Fitzgerald, 376 Mass. 402, 424 (1978)

(verdict may not be based on sympathy for victim or general considerations);

Commonwealth v. Clark, 292 Mass. 409, 411 (1935) (jury should be both impartial and

courageous); Commonwealth v. Anthes, 5 Gray 185, 197-98 (1855) (jury’s judgment is

conclusive of facts in case); Commonwealth v. Carney, 31 Mass. App. Ct. 250, 254 (1991)

(approving charge not to use judge’s questions or statements to determine how judge feels

case should be decided, since judge has no right to interfere with jury’s duty to find the

facts and determine where the truth lies); Commonwealth v. Ward, 28 Mass. App. Ct. 292,

296 (1990).

7. Sympathy. In many criminal cases there is an element of

sympathy which surrounds the trial. You may not permit sympathy to

affect your verdict(s).

The model instruction is drawn from Commonwealth v. Harris, 28 Mass. App. Ct. 724, 733

n.5 (1990). It may be appropriate where the trial is for a particularly emotional offense,

such as vehicular homicide.

8. Juror equality. No juror is better qualified to determine

the truth of the facts in controversy or to deliberate upon a

verdict than any other juror (or solely because of that juror’s

occupation, education, experience, or any other characteristic).

G.L. c. 234A, § 70 provides that this instruction must be given upon motion of either party

or whenever the court deems it appropriate. Commonwealth v. Oram, 17 Mass. App. Ct.

941, 942-43 (1983).

9. Judge’s questions. I want to reemphasize my instruction that

you draw no conclusions from the fact that on occasion I asked

questions of some witnesses. I intended those questions only to

clarify or expedite matters. They were not intended to suggest any

opinions on my part about your verdict or about the credibility of any

witness. You should understand that I have no opinion as to the

verdict you should render in this case.

10. Interested witnesses. The fact that a witness may have some

interest in the outcome of this case doesn't mean that the witness

isn't trying to tell you the truth as that witness recalls it or believes it

to be. But the witness’s interest is a factor that you may consider

along with all the other factors.

11. Sentencing consequences. Your function as the jury is to find

the facts and to decide whether, on those facts, the defendant is

guilty or not guilty of the crime charged. By contrast, my function as

the judge is to impose sentence if the defendant is found guilty. You

are not to consider the sentencing consequences of your verdict at

all, so please put any issues about sentencing out of your mind.

Shannon v. United States, 512 U.S. 573, 579 (1994); Rogers v. United States, 422 U.S.

35, 40 (1975).

12. Prosecution witnesses with plea agreement. In this case, you heard

the testimony of [prosecution witness] , and you heard that they are

testifying under an agreement. You should examine that witness’s

testimony with particular care. In evaluating their credibility, along

with all of the other factors I have already mentioned, you may

consider that agreement and any hopes that they may have about

receiving future benefits.

[Do not read the next two paragraphs unless evidence that the witness has agreed to

provide “truthful” testimony has been admitted.]

You are the sole judges of the credibility of a witness. The

prosecutor is not in a position to have any specialized

knowledge about whether the witness’s testimony is

truthful or not. You must disregard any suggestion that

the government or prosecutor believes or doesn’t believe

any part of their testimony.

It is up to you to determine whether the witness’s

testimony has been affected by their interest in the

outcome of the case or by any benefits that they have

received or hope to receive.

When a prosecution witness testifies under a plea agreement that is disclosed to the jury

and which makes the prosecution’s promises contingent on the witness’s testifying

truthfully, the judge must “specifically and forcefully” charge the jury to use particular care

in evaluating such testimony, in order to dissipate the vouching inherent in such an

agreement. “We do not prescribe particular words that a judge should use. We do expect,

however, that a judge will focus the jury’s attention on the particular care they must give in

evaluating testimony given pursuant to a plea agreement that is contingent on the witness's

telling the truth.” Commonwealth v. Ciampa, 406 Mass. 257, 266 (1989). “’When a

prosecution witness testifies pursuant to a plea agreement containing a promise to tell the

truth, and the jury are aware of the promise, the judge should warn the jury that the

government does not know whether the witness is telling the truth.’” See also

Commonwealth v. Shepherd, 493 Mass. 512, 530 (2024), quoting Commonwealth v.

Meuse, 423 Mass. 831, 832 (1996).

The Ciampa rule is not triggered where the prosecution’s promises were already fully

performed prior to the testimony, and there is nothing before the jury suggesting that the

plea agreement was contingent on the witness’s veracity or the Commonwealth’s

satisfaction. Commonwealth v. James, 424 Mass. 770, 785-87 (1997).

13. Incarcerated informant testimony. A witness testified in this case as

an incarcerated informant. An incarcerated informant is a witness

who was incarcerated either at the time they offered to testify, or at

the time they provided testimony, about a defendant's inculpatory

statements or actions, regardless of where or when those inculpatory

statements or actions took place.

Although the Commonwealth is permitted to present the

testimony of an incarcerated informant, you should examine the

testimony of such a witness who provides evidence against

a defendant with greater care and caution than the testimony of an

ordinary witness.

You should keep in mind that they may be looking or hoping for

some favorable treatment in the sentence, supervision, or disposition

of their own matters, and therefore their testimony may have been

influenced by their expectation of or hope for favorable treatment in

the sentence, supervision, or disposition of their own matters.

You should also keep in mind that in presenting the incarcerated

informant as a witness, the Commonwealth does not know whether

they are telling the truth. The witness's truthfulness is solely a

question for you to decide.

The factors you may consider, among others, when evaluating

the credibility of such a witness include:

• the extent to which the witness's testimony is confirmed by

other evidence;

• the extent to which the testimony contains details known only

by the perpetrator of the alleged offense;

• the extent to which the details of the testimony could be

obtained from a source other than the defendant, such as

pretrial discovery in the possession of the defendant that may

have been accessed by the witness or media coverage of the

alleged offense;

• the circumstances under which the witness initially provided

information supporting such testimony to law enforcement or a

prosecutorial official;

• whether the witness has received a benefit, or expects to receive

a benefit (including immunity from prosecution, leniency in

prosecution, leniency in sentencing, or personal advantage) in

exchange for testimony;

• any other case in which the witness testified or offered

statements and whether the witness received any promise,

inducement, or benefit in exchange for that testimony or

statement; and

• whether the witness has ever changed their testimony.

You should carefully scrutinize the testimony of such a witness

before you accept it. However, you are not required to disbelieve a

witness simply because they are an incarcerated informant. Like all

other questions of credibility, this is an issue for you to determine

based on all the evidence presented to you.

This instruction was set forth by the Supreme Judicial Court in Commonwealth v. Lacrosse,

494 Mass. 475, 495-497 (2024). It is intended to “apply to witnesses who

are incarcerated either at the time they offer to testify or at the time they provide testimony,

regardless of whether the witness has entered into a cooperation agreement.” Id. at 498.

This instruction is mandatory, unless waived by the defendant.