Kalodner, Freedman and Van Dusen, Circuit Judges.
Defendant, Evans, appeals from his conviction and sentence under 18 U.S.C. § 659 of theft from an interstate shipment.
Evans was indicted with two others, Andrzejewski and Harriston. Harriston pleaded guilty before trial. Evans and Andrzejewski were tried twice. The jury was unable to agree at their first trial and on retrial both were found guilty and sentenced to imprisonment. Evans alone has appealed.
Evans argues that the trial court committed plain error which requires reversal notwithstanding counsel's failure to object when the judge charged the jury that "Ordinarily, it is assumed that a witness will speak the truth. * * *"
We have recently condemned a jury instruction that a witness is " presumed " to speak the truth, because it derogates from the jury's right to determine the credibility of witnesses and in a criminal case conflicts with the presumption of the defendant's innocence. United States v. Meisch, 370 F.2d 768, 773-774 (3 Cir. 1966); United States v. Johnson, 371 F.2d 800, 804-805 (3 Cir. 1967).
The present case differs from Meisch and Johnson in a number of respects. In the first place, although the charge in the three cases was taken from a form book, the draftsmen altered the recommended charge, and it is the altered form which appears here for the first time. In Meisch and Johnson the charge was that a witness was "presumed" to speak the truth, whereas here "presumed" has been changed to "assumed" and is prefaced with "ordinarily".*fn1
We condemned as undesirable the charge in Meisch and Johnson not because it established a presumption in the technical legal sense, but rather because there was a substantial likelihood that it might mislead a jury of laymen. Their responsibility to determine the credibility of the witnesses was not to begin artificially at some initial starting point after an assumption or presumption*fn2 that the witnesses spoke the truth, but by a general application to the testimony of their everyday worldly knowledge regarding its inherent credibility and the effect of the witnesses' interest and demeanor as they observed it in the courtroom. See Government of the Virgin Islands v. Aquino, 378 F.2d 540, 548 (3 Cir. 1967).*fn3 We conclude therefore that substantially the same charge using an assumption rather than a presumption of the truthfulness of a witness is equally undesirable in a criminal case where it conflicts with the presumption of the defendant's innocence. The adverbial addition of "Ordinarily" does not effectually diminish the pervasiveness of the error. Nor is the error in such a charge overcome by a general discussion of the role of the jury in determining credibility or by an explanation of some of the factors which are relevant in determining credibility. The harm is not the product of what the charge says after it establishes the foundation of an original assumption or presumption, but lies in the creation of such a foundation in the first place. It is of course possible that a charge may so fully instruct the jury on the manner in which they are to determine the credibility of witnesses that the error in establishing this foundation might thereby be overcome,*fn4 but this is not accomplished by a charge which deals in generalities and fails to focus the jury's attention on the individual elements of the testimony of individual witnesses.
In the present case the trial judge correctly told the jury that they were the sole judges of the credibility of the witnesses, that each defendant was presumed to be innocent and that the government had the burden of establishing his guilt beyond a reasonable doubt. After reviewing briefly the testimony of the witnesses for the government the judge took up the witnesses for the defense. He mentioned the claim of Evans and Andrzejewski that they had not even been present at the freight terminal where the theft occurred and recalled that Patricia El Badihy had testified as an alibi witness for Evans. At this point the judge charged the jury that credibility was the "great issue" which the jury faced and that he would therefore go into it somewhat further. He then read from the form book of Mathes and Devitt*fn5 as follows:
"You as jurors are the sole judges of the credibility of the witnesses, of the weight their testimony deserves. Ordinarily, it is assumed that a witness will speak the truth, but this assumption may be dispelled by the appearance and conduct of the witness or by the manner in which the witness testifies or by the character of the testimony given or by evidence to the contrary of the testimony given.
"You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified and every matter in evidence which tends to indicate whether a witness is worthy of belief. Consider each witness's intelligence, motives and state of mind, and demeanor and manner while on the stand. Consider, also, any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict and the extent to which, if at all, each witness was either supported or contradicted by other evidence in the case."
The generalities which follow the assertion of the existence of an assumption of truthfulness are so broadly stated that they add virtually nothing to the common sense knowledge which jurors already possess. They cannot be said, therefore, to dissipate the charge that consideration of the question of credibility ordinarily begins with an assumption of the truthfulness of the testimony of the witnesses.
The error here therefore is in effect the same as that in Meisch and Johnson. Unlike Meisch and Johnson, however, the two defendants here testified on their own behalf and called witnesses to support their defense. Again, unlike Johnson, the defendants made no objection to the charge at trial.*fn6 There is, of course, a significant difference in the effect of a charge that an assumption or presumption of the truthfulness of witnesses exists if the defendant offered no testimony, for then the assumption or presumption runs exclusively in favor of the prosecution and is entirely in collision with the presumption of the defendant's innocence. If the defendant himself takes the stand and calls other witnesses on his behalf, however, it may in some cases appear that such a charge is of greater benefit to the defense than to the government, which may have called but a few witnesses ...