Fill and Sign the Chapter 2 Instructions for Use during Trial Third Circuit Form

6.6 Impeachment Inconsistent Statement and Felony Conviction (Defendant Testifies With Felony Conviction)You should also ask yourself whether there was evidence tending to prove that a witness testified falsely concerning some important fact ;or, whether there was evidence that at some other time a witness said or did something, or failed to say or do something, which was different from the testimony he or she gave before you during the trial. The fact that a witness has been convicted of a felony offense, or a crime involving dishonesty or false statement, is another fact or you may consider in deciding whether you believe that witness. You should keep in mind, of course, that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people naturally tend to forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether it was simply an innocent lapse of memory or an intentional falsehood; and the significance of that may depend on whether it has to do with an important fact or with only an unimportant detail. A Defendant has a right not to testify. If a Defendant does testify, however, you should decide in the same way as that of any other witness whether you believe the Defendant's testimony. [Evidence of a Defendant' s previous conviction of a crime is to be considered by you only in deciding whether you believe or disbelieve the Defendant as a witness, and must never be considered as evidence of guilt of the crime(s) for which the Defendant is on trial.]ANNOTATIONS AND COMMENTSUnited States v. Lippner, 676 F.2d 456, 462 n.1 1 (11th Cir. 1982), it is plain error not to give a limiting instruction (such as the last sentence of this instruction) when a Defendant is impeached as a witness under Rule 6 09, F.R.E., by cross examination concerning a prior conviction) (citing United States v. Diaz, 58 5 F.2d 116 (5th Cir. 1978)). If, however, evidence of a Defendant's prior conviction is admitted for other purposes under Rule 404 (b), F.R.E., the last sentence of this instruction should not be given. See, instead, Trial Instruction 3 and Special Instruction 4. Similarly, the last sentence of this instruction should not be given if evidence of a Defendant's prior conviction is admitted because the existence of such a conviction is an essential element of the crime charged. See, for example, Offense Instruction 30.6, 18 USC § 92 2(g), and the Annotations and Comments following that instruction.