THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Defendant Character Evidence

    1.    Extravagance Not Evidence Of Bad Character
    2.    Defendant: Presumption Of Good Character And Reputation
    3.    Evidence As To Defendant's Character For Honesty
    4.    Opinion Evidence As To Truthfulness Of Defendant In Perjury Prosecution
    5.    Evidence Of Character For Truthfulness As Factor In Weighing Innocent Explanation
    6.    Good Character Evidence Alone Can Leave Jury With A Reasonable Doubt
    7.    Failure To Discuss Or Question Evidence Of Defendant’s Good Character May 
           Warrant Inference Of Defendant’s Good Character
    8.    Defendant’s Good Character: Defendant Has No Burden Of Proof
    9.    Defendant's Character For Peacefulness
    10.  Character Evidence Re: Identification Of Defendant – Limiting Instruction
    11.  Defendant’s Association With Reputed Gang Members May Not Be Considered
    12.  Jury To Disregard Any Testimony Regarding Defendant’s Prior Criminal Conduct 
           Made By Witness

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Extravagance Not Evidence Of Bad Character

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Evidence of _____________'s lavish expenditures [extravagant lifestyle] cannot be considered by the jury as evidence of his bad character.

AUTHORITIES:

United States v. Ewings, 936 F.2d 903, 905-908 (7th Cir. 1991).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

    The defendant upon this trial is not only presumed to be innocent, but is also presumed to be of good character.

AUTHORITIES:

United States v. Stallings, 437 F.2d 1057, 1060 (5^th Cir. 1971).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Evidence As To Defendant's Character For Honesty

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Testimony has been received regarding the character of the defendant for honesty.

    Consider this evidence along with all the other evidence in the case, and if after this consideration you have a reasonable doubt as to the guilt of the defendant, you must return a verdict of not guilty.

    But, if upon all the evidence in the case, including the testimony as to the character of the defendant, you are satisfied of guilt beyond a reasonable doubt, you should find the defendant guilty.

RELATED NCJIC MATERIALS:

    See THE SHELLOW COLLECTION: Truthful Character As A Factor In Weighing Witness Testimony.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The defendant has introduced evidence of his character, more specifically, the defendant has introduced opinion evidence about a character trait for truthfulness and honesty. You should consider character evidence together with and in the same manner as all the other evidence in the case. Because the crime of perjury involves truthfulness, you should consider the evidence not only in deciding the weight you will give to _________ [defendant]'s testimony, but also on the issue of whether a person with these traits likely would commit the offenses with which ___________ [defendant] is charged.

AUTHORITIES:

7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.12 [Character of a Witness] (1999); United States v. Burke, 781 F.2d 1234, 1238-40 (7th Cir. 1985); United States v. Cylkouski, 556 F.2d 799 (6th Cir. 1977); United States v. Hewitt, 634 F.2d 277 (5th Cir. 1981); United States v. Angelini, 678 F.2d 380 (1st Cir. 1982) [disapproved on other grounds].

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    In considering the evidence you have heard concerning _____________ [name of defendant]'s character, you may use this evidence to help evaluate the truthfulness of the defendant's testimony and to help evaluate the credibility of the innocent explanation he offers for his acts.

AUTHORITIES:

United States v. Burke, 781 F.2d 1234, 1240 (7th Cir. 1985).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

    See generally NCJIC 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

    See generally NCJIC 251.4.2.2 [Whether Jury Should Be Instructed That Good Character Of Defendant – "Standing Alone" -- Is Sufficient To Raise A Reasonable Doubt].

SAMPLE INSTRUCTION # 1:

    Evidence that the defendant is a person of good character, by itself, may sometimes be enough to create a reasonable doubt in your minds and lead you to find the defendant not guilty.

AUTHORITIES:

Michigan Criminal Jury Instructions 2d (CJI 2d) 5.8a (92/93 Supp.); Michelson v. United States, 335 U.S. 469 (1948).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Croft, No. 83-CR-11 (W.D. Wis. 1983); People v. Hays, No. 90-589-1-FY (Michigan-Newaygo County Circuit Court, August 1990). 

SAMPLE INSTRUCTION # 2:

    [Defendant] has introduced evidence of his character. Evidence of a defendant's good character may be sufficient to create a reasonable doubt of his guilt.

AUTHORITY:

 Michelson v. United States, 335 U.S. 469 (1948).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Croft, No. 83-CR-11 (W.D. Wis. 1983).

SAMPLE INSTRUCTION # 3:

    Where a defendant has offered evidence of good general reputation for truth and veracity, or honesty and integrity, or as a law-abiding citizen, the jury should consider such evidence along with all the other evidence in the case.

    Evidence of a defendant's reputation, inconsistent with those traits of character ordinarily involved in the commission of the crime charged may give rise to a reasonable doubt, such as to warrant acquittal, since the jury may think it improbable that a person of good character in respect to those traits would commit such a crime.

    Character testimony may be such that it alone may create a reasonable doubt, such as to warrant acquittal, although without it the other evidence would be convincing of guilt.

AUTHORITIES:

Devitt, Blackmar, Wolff, and O'Malley, Federal Jury Practice and Instructions, §15.15 (5th Ed. 2000) (paragraph 1 and 2).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Staben, No. 78-CR-83 (E.D. Wis. 1979); United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982).

SAMPLE INSTRUCTION # 4:

    The defendant has introduced evidence of his good reputation in his community prior to the indictment in this case. Such evidence may indicate to the jury that it is improbable that a person of good character would commit the crime charged. Therefore, the jury should consider this evidence along with all the other evidence in the case in determining the guilt or innocence of the defendant.

    The circumstances may be such that evidence of good character may alone create a reasonable doubt of the defendant's guilt, although without it the other evidence would be convincing. However, evidence of good reputation should not constitute an excuse to acquit the defendant if the jury, after weighing all the evidence, including the evidence of good character, is convinced beyond a reasonable doubt that the defendant is guilty of the crime charged in the indictment.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Hestnes, Case No. 77-CR-23 (W.D. Wis. 1977).

SAMPLE INSTRUCTION # 5:

    You have heard the testimony of witnesses who said that the defendant, ______________, in their opinion, is an honest, law-abiding, and responsible citizen. Along with all the other evidence you have heard, you may take into consideration what you believe about the defendant's character for honesty, [law-abidingness], [responsible behavior], [sexual morality], [decency], [peaceableness], [non-aggressiveness] when you decide whether the prosecution has proved, beyond a reasonable doubt, that the defendant committed the offense charged. Evidence of the defendant's good character alone may create sufficient doubt as to whether the prosecution has proved that the defendant committed the offense charged.

AUTHORITIES:

Federal Judicial Center Pattern Criminal Jury Instructions, Instruction No. 51 (1987), quoted in 2 Weinstein's Evidence ¶404[06] at 404-40 (1992); Michelson v. United States, 335 U.S. 469, 476 (1948).

SAMPLE INSTRUCTION # 6:

    Defendant __________ (name of defendant) has introduced evidence of (his/her) character. More specifically the defendant has introduced evidence about (his/her) character trait for truthfulness and honesty.

    You should consider character evidence together with and in the same manner as all the other evidence in the case. Character evidence alone may create a reasonable doubt of the defendant's guilt.

Federal Criminal Jury Instructions of the Seventh Circuit 3.06 [Character and Reputation of Defendant] [formerly § 3.15 (1980) [consistent with the committee comment, the second paragraph is omitted because the government offered no character evidence to controvert the defendant's].]

    Evidence of a defendant's reputation for truthfulness and honesty may in itself be sufficient to create a reasonable doubt of the defendant's guilt, if it is unlikely that a person of such reputation would commit the acts with which the defendant is charged. Accordingly, if the evidence you have heard of __________’s (name of defendant) reputation creates in your mind a reasonable doubt that (he/she) committed the offenses charged in the information, then you should find (him/her) not guilty.

    You have heard the testimony of                 , and                         , who said that the defendant,__________ (name of defendant), in their opinion, is an honest, law-abiding citizen possessing character traits of non-aggressiveness and decency. Along with all the other evidence you have heard, you may take into consideration what you believe about the defendant's honesty, law-abidingness and decency, when you decide whether the state has proved, beyond a reasonable doubt, that the defendant committed the crime charged. Evidence of the defendant's good character alone may create a reasonable doubt whether the state has proved that the defendant committed the crime charged.

AUTHORITY:

Federal Judicial Center Pattern Criminal Jury Instructions, Instruction No. 51 (1987), quoted in 2 Weinstein's Evidence ¶404[06] at 404-40 (1992); Michelson v. United States, 335 U.S. 469, 476 (1948).

You have heard the testimony of ___________________, who said that the defendant,__________ (name of defendant), in their opinion, is an honest, law-abiding citizen possessing character traits of sexual morality and decency. Along with all the other evidence you have heard, you may take into consideration what you believe about the defendant's honesty, law-abidingness, sexual morality and decency, when you decide whether the state has proved, beyond a reasonable doubt, that the defendant committed the crimes charged. Evidence of the defendant's good character alone may create a reasonable doubt whether the state has proved that the defendant committed the crimes charged.

AUTHORITY:

Federal Judicial Center Pattern Criminal Jury Instruc tions, Instruction No. 51 (1987), quoted in 2 Weinstein's Evidence ¶404[06] at 404-40 (1992); Michelson v. United States, 335 U.S. 469, 476 (1948).

See generally NCJIC 251.4 [Good Character Of Defendant].

See NCJIC 251.4.3 [Good Character Defense: Strategic Concerns].

See NCJIC 305.4.3 [Defendant's Character].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Where a defendant has offered evidence of good general reputation for truth and veracity, or honesty and integrity, or as a law-abiding citizen, the jury should consider such evidence along with all the other evidence in the case.

    Evidence that a defendant's reputation for truth and veracity, or honesty and integrity, or as a law-abiding citizen, has not been discussed or, if discussed, those traits of the defendant's character have not been questioned, may be sufficient to warrant an inference of good reputation as to those traits of character.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Evidence of defendant's reputation, as to those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt, since the jury may think it improbable that a person of good character in respect to those traits would commit such a crime.

    The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

    Paragraph 1, see generally NCJIC 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions]; NCJIC 251.4.2.2 [Whether Jury Should Be Instructed That Good Character Of Defendant – "Standing Alone" -- Is Sufficient To Raise A Reasonable Doubt]; see also THE SHELLOW COLLECTION: Good Character Evidence Alone Can Leave Jury With A Reasonable Doubt. 

    Paragraph 2, see generally  NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

State v. Gissel, No. 2-224869, Circuit Court Milwaukee County (January, 1979) - Third paragraph only.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    You have heard evidence that the defendant, _____________, has a reputation as a peaceful, non-violent man, and that some of those who know him hold the opinion that he is a peaceful, non-violent man. You may give this evidence such weight as you think it deserves, keeping in mind that this sort of character evidence alone may raise in your mind a reasonable doubt about whether [defendant] is guilty of the charged crimes and that this evidence may carry much weight when the other evidence is circumstantial.

AUTHORITY:

King v. State, 75 Wis. 2d 26, 38-39, 248 N.W.2d 458, 464-65 (1977) (in first-degree murder case, defendant "entitled to place into evidence not only opinion testimony but expert opinion testimony concerning his general character trait of nonhostility and nonaggressiveness"); State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96, 106 (1988); Gerke v. State, 151 Wis. 495, 503, 139 N.W. 404 (1913) (discussing defendant's evidence of his good character: "It is true that this fact does not prove innocence, but a reputation of this kind carries much weight, especially when the proof is doubtful and circumstantial").

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin 

10.     Character Evidence Re: Identification Of Defendant – Limiting Instruction

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    You have heard evidence concerning conduct of __________ (name of defendant) in __________ (date) relating to ________ (what evidence relates to e.g., an incident with third party). You may not consider this as evidence of __________’s (name of defendant) bad character or criminal disposition. It was admitted solely as it relates to the identification of the defendant.

RELATED NCJIC MATERIALS:

See generally NCJIC 251.4 [Good Character Of Defendant].

See NCJIC 251.4.3 [Good Character Defense: Strategic Concerns].

See NCJIC 305.4.3 [Defendant's Character].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin 

11.    Defendant’s Association With Reputed Gang Members May Not Be Considered

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The evidence that __________ (name of defendant) was [seen] [photographed] with persons who have a reputation for gang membership is not evidence the jury can consider in making its determination whether the prosecution has proven its case against __________ (name of defendant).

United States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996).

See generally NCJIC 251.4 [Good Character Of Defendant].

See NCJIC 251.4.3 [Good Character Defense: Strategic Concerns].

See NCJIC 305.4.3 [Defendant's Character].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin 

12.    Jury To Disregard Any Testimony Regarding Defendant’s Prior Criminal Conduct Made By Witness

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The court advises that __________ (name of defendant) is not only presumed to be innocent of the charges in this indictment, but that as a matter of fact (he/she) has never been convicted of any crime in any court. Any inference which you may have gained to the contrary from the testimony of __________ (name of witness) is wrong and should be completely disregarded.

See generally NCJIC 251.4 [Good Character Of Defendant].

See NCJIC 251.4.3 [Good Character Defense: Strategic Concerns].

See NCJIC 305.4.3 [Defendant's Character].