2.11 Statements by Defendant

You have heard evidence that [defendant] made a statement in which the government claims [he/she] admitted certain facts.

It is for you to decide (1) whether [defendant] made the statement, and (2) if so, how much weight to give it. In making those decisions, you should consider all of the evidence about the statement, including the circumstances under which the statement may have been made [and any facts or circumstances tending to corroborate or contradict the version of events described in the statement].

Comment(s)

(1) The instruction uses the word “statement” to avoid the more pejorative term “confession.”

(2) A judge is required to give this instruction if the defendant has raised “a genuine factual issue concerning the voluntariness of such statements . . ., whether through his own or the Government’s witnesses[.]” United States v. Fera, 616 F.2d 590, 594 (1st Cir. 1980). Under 18 U.S.C. § 3501(a), “[i]f the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.” (Dickerson v. United States, 530 U.S. 428 (2000), held that 18 U.S.C. § 3501 did not displace the constitutional requirements of Miranda v. Arizona, 384 U.S. 436 (1966), but Dickerson did not say that section 3501 has no effect at all. It seems safer, therefore, to charge in light of section 3501 even if Miranda requirements are satisfied.) See also Crane v. Kentucky, 476 U.S. 683, 687-91 (1986) (holding exclusion of testimony about circumstances of confession deprived defendant of a fair opportunity to present a defense). The First Circuit has held that, “[o]nce the judge makes the preliminary finding of voluntariness, the jury does not make another independent finding on that issue. Under this procedure, the jury only hears evidence on the circumstances surrounding the confession to aid it in determining the weight or credibility of the confession.” United States v. Campusano, 947 F.2d 1, 6 (1st Cir. 1991) (quoting United States v. Nash, 910 F.2d 749, 756 (11th Cir. 1990) (quoting United States v. Robinson, 439 F.2d 553, 575 (D.C. Cir. 1970) (McGowan, J., dissenting))).

(3) In addition to determining whether a defendant’s statement was voluntarily made, the court must “make[] a preliminary determination as to whether testimony about the confession is sufficiently trustworthy for the jury to consider the confession as evidence of guilt.” United States v. Singleterry, 29 F.3d 733, 737 (1st Cir. 1994) (citations omitted). “The general rule is that a jury cannot rely on an extrajudicial, post-offense confession, even when voluntary, in the absence of ‘substantial independent evidence which would tend to establish the trustworthiness of [the] statement.’” Id. (alteration in original) (quoting Opper v. United States, 348 U.S. 84, 93 (1954)). If evidence of the statement is admitted, “the court has the discretion to determine that the question of trustworthiness is such a close one that it would be appropriate to instruct the jury to conduct its own corroboration analysis.” Id. at 739. That is the purpose of the bracketed language in the instruction. “[A] judge has wide latitude to select appropriate, legally correct instructions to ensure that the jury weighs the evidence without thoughtlessly crediting an out-of-court confession.” Id.