Biggs, Kalodner and Van Dusen, Circuit Judges. Biggs, Circuit Judge (dissenting).
VAN DUSEN, Circuit Judge.
Artis Jackson appeals from a judgment of conviction for bank robbery following a jury verdict on each count of a three-count indictment.*fn1 Appellant, Boone, Howard and Loffa were arrested for the March 9, 1966, robbery of the federally-insured Union County Trust Company in Elizabeth, New Jersey. Jackson pleaded not guilty, whereas each of the other defendants pleaded guilty. His first trial resulted in disagreement of the jury; the second, here under consideration, resulted in a guilty verdict. Defendant Howard and defendant Loffa, who voluntarily confessed to his part in the crime, testified against the appellant. Defendant Boone, who also had confessed and thereby implicated Jackson, recanted that part of his confession implicating Jackson and appeared on the appellant's behalf, testifying that the appellant was not one of the robbers and alleging that one "Ricky," not Jackson, was the fourth man. The appellant did not take the stand but, in addition to Boone, called his sisters, Marcella Jackson and Eleanor Graham, both of whom testified that appellant was with them for the period during which the robbery was committed.*fn2
The principal issue relied on by appellant is whether the trial judge erred in instructing the jury that a witness is presumed to tell the truth.*fn3 Subsequent to the second trial in this case, we have disapproved instructions almost identical to the one involved here,*fn4 but the presentation by the defendant of testimony and the trial judge's full instructions to the jury on the manner in which they were to determine the credibility of witnesses make any error in the use of the word "presumption" harmless on this record.*fn5
Ordinarily, an instruction on the presumption of truth is replete with danger in a criminal case because of the possible conflict between the presumption of truth and the superior presumption of innocence. In United States v. Meisch, 370 F.2d 768 (3rd Cir. 1966), and in United States v. Johnson, 371 F.2d 800 (3rd Cir. 1967), the only evidence was that presented by the Government. In both of those cases we held that an instruction on the presumption of truth*fn6 constituted reversible error because the presumption operated exclusively in favor of the Government. Where the prosecution alone introduces testimony and the charge states that sworn witnesses are presumed to testify truthfully, the defendant is exposed to the danger that the jury may feel compelled to accept the uncontradicted testimony of prosecution witnesses at face value. This one-sided effect of the presumption language was not present here because Boone, both of Jackson's sisters, and eight other witnesses testified on his behalf. The testimony of these defense witnesses was, of course, equally subject to the presumption of truth contained in the charge. Also, the danger that the jury might feel obligated to accept uncontradicted testimony of Government witnesses at face value to overcome the presumption of innocence is absent here because the testimony of those witnesses was directly contradicted by the defendant's sworn witnesses. Since there was obvious contradiction in the testimony of the opposing parties' witnesses, the jury's ultimate conclusion could only be based upon their evaluation of the relative credibility of prosecution and defense witnesses. Therefore, the instruction on the presumption of truth could not have derogated from the jury's sole right to determine the credibility of witnesses in this instance.
When only prosecution witnesses have testified, the presumption of truth may be tantamount to an assumption of guilt in the jury's mind, and thus conflict with the presumption of a defendant's innocence. Where, as here, both parties have produced witnesses, neither is favored by the presumption of truth, particularly in light of the careful qualifications contained in the District Judge's charge, as hereinafter discussed.
While reversing appellant's conviction in United States v. Evans, 398 F.2d 159 (3rd Cir., No. 16751, 6/27/68), partially on the ground that the instructions to the jury included the affirmation that a witness is assumed to tell the truth,*fn7 we recognized that "If the defendant himself takes the stand and calls other witnesses on his behalf * * * it may in some cases appear that such a charge is of [equal or] greater benefit to the defense * * *." In Evans, the defendants took the stand and called witnesses on their behalf. We reversed because the assertion of an assumption of truth was not sufficiently qualified to enable the jury to understand the criteria necessary to make an accurate determination of credibility; not because of any danger from uncontradicted prosecution testimony.*fn8 In the present case, however, the trial court took great care to explain that the jury is the sole judge of credibility; that they should scrutinize the testimony and the circumstances under which each witness testified; that they should consider the intelligence, motive, state of mind, and demeanor of the witnesses; that the jury should consider the interest of each witness in the outcome of the case; they should treat the testimony of accomplices with care and caution; and they should consider the relationship of each witness to the parties.*fn9 These instructions have sufficiently explained the jury's function and duly qualified the presumption to enable them to determine satisfactorily the credibility of each witness.*fn10
We reaffirm the rule laid down in Meisch, Johnson, and Evans, but we find that it should not be applied retroactively*fn11 to the present factual situation. Even though there was an objection by counsel for defendant after the charge to "any statement of any presumption * * * that witnesses tell the truth", the Meisch rule would have to be retroactively applied to affect this trial, and the following language in McMillen v. United States, 386 F.2d 29, 33 (1st Cir. 1967), is applicable in our view to the situation presented by this record:
"All that we have said indicates that a trial judge in a criminal case ought not to refer to a 'presumption of truthfulness.' It does not indicate that, in the absence of objection, this instruction is 'plain error.' Nor have the cases we have cited so held. As is always so, the particular circumstances of each case must be carefully surveyed before such an unusual step is taken."
The trial court did not err in charging the jury that the defendant had conceded that a federally-insured bank had been subject to an armed robbery wherein the lives of bank employees were placed in jeopardy with dangerous weapons.
The prosecution introduced Union County Trust Company's Certificate of Insurance with the Federal Deposit Insurance Corporation without objection, and testimony was produced showing that the robbers were armed. Thereafter, counsel for the defendant in his summation stated: "There was a robbery of the Union County Trust Company on March 9, 1966; nobody denies that." Following the charge, defense counsel stated to the court: "* * * Your Honor, in indicating that the robbery of the bank was conceded, your Honor stated that sometime on March 9, between dawn and noon, the bank was robbed. Now the statement is a true statement." Defense counsel did not except to that portion of the charge describing the defendant's concessions. Defense counsel also stated in his summation that the only issue for the jury's determination was "who done it."
Appellant complains that he was prejudiced because Boone's statement implicating the appellant was brought to the jury's attention during cross-examination and was read during the Government's rebuttal in direct examination of an F.B.I. Special Agent. The defendant himself called Boone and offered his testimony, which was contrary to his previous statement. The trial court limited the jury's consideration of Boone's confession to the effect it had on their determination of the credibility of his sworn testimony and instructed them that the confession of an accomplice has no bearing on the determination of a defendant's guilt or innocence.*fn12 Having opened the door, the defendant cannot justifiably claim he has been prejudiced when his witness is impeached by a prior inconsistent statement either on cross-examination or in rebuttal.*fn13 To hold otherwise would ...