THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Basic Elements Of A Criminal Allegation: Criminal Intent
1. Specific And General
Intent, State Of Mind
2. State Of Mind Depends
On Defendant’s Impression of the Facts
3. Intent: Test Is
Subjective State Of Mind
4. Specific Intent: Mere
Knowledge And Association Insufficient
5. Specific Intent: Jury
Should Consider All Of The Circumstances In Evidence
6. Intent: Knowledge Must
Be Clear, Not Equivocal
7. Specific Intent:
Reasonable Person Standard
8. Specific Intent Defined
9. Determining Specific
Intent
10. Specific Intent: Knowledge And
Intent To Violate The Law; Defense Theory
11. Defendant Must Personally
Know/Intend
12. Participation Without Knowledge
Or Consent Insufficient To Establish Intent
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Specific And General Intent, State Of Mind
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Some criminal offenses require only a general intent. Where this is so and it is shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act. Other offenses, such as this one, require a specific intent. Specific intent requires more than a mere general intent to engage in certain conduct or to do certain acts. A person who knowingly does an act which the law forbids intending with bad purpose either to disobey or disregard the law, may be found to act with specific intent.
The main distinction between specific and general intent is the element of bad or evil purpose which is required for the former. This is not to say, however, that the accused must have known he was violating a specific statute, but only that he knew that he was acting wrongly or violating the law in general when he acted.
AUTHORITIES:
United States v. Haldeman, 559 F.2d 31, 113, 114 n.226, citing United States v. Feola, 420 U.S. 671, 686-96 (1975).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. State Of Mind Depends On Defendant’s Impression of the Facts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendant's state of mind depends on his impression of the facts. If according to the defendant's perception of the facts, his act is criminal, he has the criminal mind and should be punished. If, on the other hand, his act would be innocent provided the facts were as he perceived them to be, he does not have the criminal mind and consequently should not be punished for his act.
Because the defendant's guilt or innocence is determined by what he actually thought or perceived, if a person is mistaken in his perception of the facts and performs an act based on this misperception, he cannot be guilty of a crime because his mental impressions make it impossible to have formed a criminal intent.
Under ____________ (state, e.g., Wisconsin) law, it does not matter whether a person's mistake is reasonable, only that it is an honest mistake.
AUTHORITIES:
State v. Bougneit, 97 Wis. 2d 687, 691, 294 N.W.2d 675, 677-78 (Ct. App. 1980); Wis. Stat. §939.43(1).
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See also generally NCJIC Chapter 48: Objective Unreasonableness (Reasonable Person Standard).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Intent: Test Is Subjective State Of Mind
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering whether the government has proven beyond a reasonable doubt that __________ (name of defendant) acted knowingly and willfully on _________ (date), you must view the evidence from (his/her) perspective. The government has not proven its case if all that it has proven is that a reasonable person would have acted knowingly and willfully.
Another way of stating this is that the evidence must prove __________’s (name of defendant) subjective state of mind on _________ (date), and not merely the state of mind that you or some other reasonable person would have had on that date.
Because the test is the subjective state of mind of __________ (name of defendant), you are permitted to consider any evidence you may have heard bearing upon __________’s (name of defendant) mental state, including, but not limited to, ____________________ (factors).
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See also generally NCJIC Chapter 48: Objective Unreasonableness (Reasonable Person Standard).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Specific Intent: Mere Knowledge And Association Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Evidence which at best shows only association and knowledge of the illegal activities of another is insufficient to establish specific intent.
AUTHORITY:
United States v. Mendez, 496 F.2d l28, l30 (5th Cir. l974).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kehm, No. 84-3028 (7th Cir. 1986) [mere association not conspiracy]; United States v. Kramer, No. 8l-CR-l06 (E.D. Wis. l982); United States v. Matta, No. 82-CR-20 (E.D. Wis. l982); United States v. Umentum, No. 75-CR-l03 (E.D. Wis. l976).
SAMPLE INSTRUCTION # 2:
Constructive notice or knowledge of a circumstance, based upon the actual knowledge of a co-conspirator, has no tendency, circumstantial or otherwise, to prove criminal intent. The specific intent of one defendant is not ascertained by reference to the conduct or statements of another even though (he/she) has knowledge thereof.
AUTHORITIES:
lst sentence - Phillips v. United States, 356 F.2d 297, 303 (9th Cir. 1965); 2nd sentence - United States v. Spock, 416 F.2d 165 (lst Cir. 1969).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Accomplices – Accomplice: Presence And Knowledge Not Sufficient.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See also NCJIC 64.1 [Accomplice Liability: Intent And Knowledge Elements].
See also NCJIC 64.2 [Accomplice Liability: Mere Presence Insufficient].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Specific Intent: Jury Should Consider All Of The Circumstances In Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I have already explained in detail what specific intent means. However, let me remind you that you should consider all of the circumstances in evidence that you deem relevant in determining whether the [state] [government] [prosecution] has proved beyond a reasonable doubt that the defendant acted with the required intent.
AUTHORITY:
United States v. Haldeman, 559 F.2d 31, 115 n.233 (D.C. Cir. 1976) [en banc] [per curiam].
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Intent: Knowledge Must Be Clear, Not Equivocal
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
To establish intent, the evidence of knowledge must be clear, not equivocal.
AUTHORITIES:
Direct Sales Company v. United States, 319 U.S. 703, 711 (1943).
SAMPLE INSTRUCTION # 2:
To establish the specific intent required to convict the defendant, the evidence of the defendant's knowledge of the unlawful acts must be clear, not equivocal.
AUTHORITY:
United States v. Mendez, 496 F.2d 128 (5th Cir. 1974).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Specific Intent: Reasonable Person Standard
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is not permissible for a jury to infer specific intent solely from the doing of a particular act, without regard to the totality of the circumstances. The question is never whether a reasonable person in similar circumstances would have had the intent. Rather, it is always whether the state has proven beyond a reasonable doubt that the accused actually had specific intent.
AUTHORITIES:
United States v. Moore, 435 F.2d 113, 115 n.3 (D.C. Cir. 1970) as modified by United States v. United States Gypsum Company, 438 U.S. 411, 435 (1978).
SAMPLE INSTRUCTION # 2:
It is not permissible for a jury to infer specific knowledge or intent solely from the doing of a particular act, without regard to the totality of the circumstances. The question is never whether a reasonable person in similar circumstances would have had the requisite knowledge or intent. Rather, it is always whether the state has proven beyond a reasonable doubt that the accused actually had knowledge and specific intent.
AUTHORITIES:
United States v. Moore, 435 F.2d 113, ll5 n.3 (D.C. Cir. l970) as modified by United States v. United States Gypsum Company, 438 U.S. 4ll, 435 (l978).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada l981).
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See also generally NCJIC Chapter 48: Objective Unreasonableness (Reasonable Person Standard).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Specific Intent Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
[The most important issue in this case is intent.] The intent distinguishes the offense charged from other crimes not requiring intent. To be convicted of the crime charged, one must have the specific intent to do wrong. (He/She) must be acting knowingly to defraud and meaning to participate in it. [(He/She) must be found beyond a reasonable doubt to have knowingly, willfully and intentionally done a wicked act.]
AUTHORITY:
New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir.), cert. denied, 393 U.S. 1036 (1968).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981) [bracketed areas deleted].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Determining Specific Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendant cannot be convicted of _________ (crime, e.g., delivery of cocaine) unless the prosecution has proven beyond a reasonable doubt that (he/she) had the specific intent to ________ (crime, e.g., deliver a controlled substance).
It is not sufficient for the prosecution to prove that a reasonable person in the defendant’s position would have had the specific intent or that the defendant should have had the specific intent. It must prove beyond a reasonable doubt that (he/she) actually had the specific intent to commit the crime.
Specific intent cannot be determined by direct testimony. It must be found, if it exists, by evidence of the defendant's acts and mental condition at the time of the commission of the offense. Any abnormal condition of the mind may be so severe that it forecloses a defendant from having specific intent to commit the crime. You should consider all of the evidence in the case, including the testimony of the defendant, in determining whether the defendant had the specific intent necessary for a finding of guilty.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Specific Intent: Knowledge And Intent To Violate The Law; Defense Theory
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The specific intent which the prosecution must prove beyond a reasonable doubt consists of two elements: the first is knowledge. The defendant must have known that ________ (fact e.g., that the substance which he delivered was a controlled substance) and that (he/she) was engaged in an act of __________ (act, e.g., delivery) rather than some other act. Secondly, the defendant must have intended that (his/her) conduct violate a law. It is not necessary that (he/she) know precisely what law (his/her) conduct violated, but (he/she) must have intended to violate some law by the __________ (act). If (he/she) believed (he/she) was privileged to __________ (act e.g., make the delivery) because (he/she) was acting on behalf of ________ (third party, e.g., a drug ring controlled by the police), you may find that this mental state is not consistent with the specific intent necessary for a conviction of this crime.
SAMPLE INSTRUCTION # 2:
One who __________ (act e.g., delivers drugs) upon the belief that (he/she) is acting for law enforcement and that their conduct is privileged does not have the specific intent to commit the crime of ________ (crime, e.g., delivery of drugs) and must be acquitted. The defendant does not have to prove that (he/she) lacked specific intent. The prosecution to secure (his/her) conviction must prove beyond a reasonable doubt that (he/she) possessed that intent.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Defendant Must Personally Know/Intend
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the knowledge or intent of __________ (name of defendant), you must look at what (he/she) personally knew or intended.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Participation Without Knowledge Or Consent Insufficient To Establish Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Individuals, [or corporations], participating without their knowledge or consent in the commission of offenses do not possess the requisite criminal intent to be guilty of an offense.
AUTHORITIES:
United States v. Sherpix, Inc., 5l2 F.2d l36l, l367-68 (D.C. Cir. l975).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.