10th Cir. Crim. Pattern Jury Instr. 1.08

I remind you that it is your job to decide whether the

government has proved the guilt of the defendant beyond a

reasonable doubt. In doing so, you must consider all of the

evidence. This does not mean, however, that you must 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 the witness’s testimony.

An important part of your job will be making judgments about the

testimony of the witnesses [including the defendant] who testified

in this case. You should think about the testimony of each witness

you have heard and decide whether you believe all or any part of

what each witness had to say, and how important that testimony

was. In making that decision, I suggest that you ask yourself a few

questions: Did the witness impress you as honest? Did the witness

have any particular reason not to tell the truth? Did the witness

have a personal interest in the outcome in this case? Did the

witness have any relationship with either the government or the

defense? Did the witness seem to have a good memory? Did the

witness clearly see or hear the things about which he/she testified?

Did the witness have the opportunity and ability to understand

the questions clearly and answer them directly? Did the witness’s

testimony differ from the testimony of other witnesses? When

weighing the conflicting testimony, you should consider whether

the discrepancy has to do with a material fact or with an

unimportant detail. And you should keep in mind that innocent

misrecollection—like failure of recollection—is not uncommon.

[The testimony of the defendant should be weighed and his

credibility evaluated in the same way as that of any other

witness.]

[The defendant did not testify and I remind you that you

cannot consider his decision not to testify as evidence of guilt. I

want you to clearly understand, please, that the Constitution of

the United States grants to a defendant the right to remain silent.

That means the right not to testify or call any witnesses. That is a

constitutional right in this country, it is v ery carefully guarded,

and you should understand that no presumption of guilt may be

raised and no inference of any kind may be drawn from t he fact

that a defendant does not take the witness stand and testify or

call any witnesses.]

PATTERN CRIMINAL JURY INSTRUCTIONS

15

In reaching a conclusion on particular point, or ultimately in

reaching a verdict in this case, do not make any decisions simply

because there were more witnesses on one side than on the other.