Can a jury substitute the word "would" for "could"?

10 To the extent that there was any variation in the instruction resulting from the substitution of the word "would" for "could," that variation was, in this particular context, not significant. See United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir.1989) (holding that "[t]he trial judge has substantial latitude in tailoring the instructions" so long as they are not misleading or inadequate to guide the jury's deliberations). Moreover, the instruction could have been interpreted by the jury to afford the defendants an even more favorable qualified immunity instruction than the law allows. While, in qualified immunity cases, "the burden is on the defendant to establish the reasonableness of his or her actions," Pierce v. Multnomah County, 76 F.3d 1032, 1038 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 506, 136 L.Ed.2d 397 (1996), the district court never instructed the jury that the defendants had to carry the burden on this issue.