THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Defendant Not Testifying
1. Jury Not To Consider
Defendant’s Failure To Testify; No Inference Of Guilt
2. Defendant Not
Testifying: Burden Of Proof
3. Jury May Draw No
Inference From Counsel's Decision Not To Call Defendant
To Testify
4. Defendant Not
Testifying: Reasons Innocent People Choose Not To Testify
5. Defendant Not
Testifying: Jury Not To Speculate On What Testimony Might Have Been
6. Decision To Testify Is
Defendant’s Upon Advice Of Attorney
7. Defendant’s Silence
Is Not A Direct Or Implied Concession
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Jury Not To Consider Defendant’s Failure To Testify; No Inference Of Guilt
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The defendant has an absolute right not to testify. The fact that the defendant did not testify [should not] [may not] be considered by you in any way in arriving at your verdict.
AUTHORITIES:
Federal Criminal Jury Instructions of the Seventh Circuit 3.01 [Failure of Defendant to Testify] [formerly 3.14 (1980) ("should not" modified to read "may not")].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985.
SAMPLE INSTRUCTION # 2:
Every person accused of a crime has an absolute right not to testify. You must not draw any inference of guilt against any defendant by reason of the fact that (he/she) did not testify.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
SAMPLE INSTRUCTION # 3:
A defendant in a criminal case has the absolute constitutional right not to testify.
The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Defendant Not Testifying: Burden Of Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Remember that a defendant has an absolute right not to testify. The fact that __________ (name of defendant) did not testify should not be considered by you in any way or even discussed in your deliberations. I remind you that it is up to the [state] [government] to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that (he/she) is not guilty.
AUTHORITY:
Pattern Criminal Jury Instructions – Federal Judicial Center (1988) 22 [Defendant's Election Not to Testify (Or Offer Evidence): Jury Not to Consider].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987).
SAMPLE INSTRUCTION # 2:
Remember that every person accused of a crime has an absolute right not to testify, under the Constitution of the United States of America. The fact that __________ (name of defendant) did not testify must not be considered by you in any way or even be discussed in your deliberations. I remind you that it is up to the government to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that (he/she) is not guilty.
AUTHORITIES:
7th Circuit Federal Instructions (1999) 3.01 [Failure of Defendant to Testify] [formerly Federal Criminal Jury Instructions of the Seventh Circuit § 3.14 (1980, modified).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987).
SAMPLE INSTRUCTION # 3:
The [state] [government] has the burden of proof beyond a reasonable doubt. As a corollary to that, a defendant has no duty to take the stand or to offer any evidence. You must never hold it against the defendant in any way, that he did not take the stand directly or through representatives.
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D.N.H. 1967).
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Jury May Draw No Inference From Counsel's Decision Not To Call Defendant To Testify
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Even though __________’s (name of defendant) counsel suggested in (his/her) opening statement that (his/her) client would testify, you may draw no inference of guilt whatsoever from counsel's decision not to call __________ (name of defendant) as a witness.
AUTHORITIES:
United States v. Lauchli, 724 F.2d 1279, 1282-83 (7th Cir. 1984); United States v. Bailey, 526 F.2d 139, 142 (7th Cir. 1975).
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8[Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Defendant Not Testifying: Reasons Innocent People Choose Not To Testify
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of defendant) and (his/her) lawyer may decide that (he/she) will not testify here. I cannot emphasize strongly enough that you should not and shall not consider a decision not to testify as any indication that __________ (name of defendant) may be guilty. There are many reasons why perfectly innocent persons decide not to testify at their own trial: the person may be frightened, a poor public speaker, handicapped in some way, trying to protect someone, or simply insistent that the state has not proved (him/her) guilty, just for example. In this country, we always permit a defendant to testify if (he/she) wishes, but we never punish (him/her) or question (his/her) innocence in any way merely for choosing not to do so. More than two hundred years' experience has proven that a wise, fair and necessary rule, and you will abide by it.
AUTHORITY:
U.S. Const., amend. V (1791).
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Defendant Not Testifying: Jury Not To Speculate On What Testimony Might Have Been
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Each defendant has an absolute right not to testify. The fact that [one or more of] the defendants did not testify should not be considered by you in any way in arriving at your verdict. You may not consider why a defendant made the decision not to testify, nor may you speculate what (his/her) testimony would have been.
As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
AUTHORITIES:
Federal Criminal Jury Instructions of the Seventh Circuit, 3.01 [Failure of Defendant to Testify] [formerly 3.14 Modified]; United States v. Vlasak, No. 75-184 (D.P.R. January, 1976).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Balistrieri, Case No. 81-CR-152 (E.D. Wis. 1983) [bracketed material deleted].
SAMPLE INSTRUCTION # 2:
No inference of guilt may be drawn from the defendant's decision not to testify in this case.
You may not consider why (he/she) made this decision, nor may you speculate what (his/sher) testimony would have been.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Heber, No. 81-CR-20 (W.D. Wis. 1981); United States v. Vlasak, No. 75-184 (D.P.R. 1976).
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Decision To Testify Is Defendant’s Upon Advice Of Attorney
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be discussed by you or enter into your deliberations in any way.
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Defendant’s Silence Is Not A Direct Or Implied Concession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government has to prove beyond a reasonable doubt each element of the charged crime. The defendant may keep quiet, and that silence is in no way to be used against the (him/her). It is not a direct or implied concession. It is merely a reliance upon the constitutional right to wait until the government offers something which seems to the defendant to be of any consequence.
It is up to the jury to decide whether the evidence offered in this case satisfies the government's duty to persuade you beyond a reasonable doubt.
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D.N.H. l967).
RELATED NCJIC MATERIALS:
See NCJIC 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].
See NCJIC 12.3.6 [Preliminary Instructions: The Defendant's Right Not To Testify].
See NCJIC 18.3 [Failure Of Defendant To Testify].
See NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].
See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].
See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].
See NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].