THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Defendant's Statements
1. Defendant’s Out Of Court
Statements: Cautionary Instruction
2. Defendant’s
Statements: Prior Investigation
3. Defendant’s
Statements: Repeating Third Party Statements
4. Defendant’s
Statements: Uncorroborated Confession
5. Defendant’s
Statements: Reliability & Voluntariness
6. Defendant's Oral
Statements Summarized In Writing
7. Defendant’s
Statements: Factors To Consider
8. Defendant’s
Statements: "Admission By Silence"
9. Statements Or
Admissions: Multiple Defendants
10. Defendant’s Statements:
Admissions/Statements To An Informant
11. Juvenile’s Statements:
Voluntariness
12. Defendant Under The Influence:
Trustworthiness Of Statement
13. Jury Should Determine If
Defendant Was Party To Telephone Conversations
THE SHELLOW COLLECTION
Jury Instructions By
James M. Shellow of Wisconsin
1. Defendant’s Out Of Court Statements: Cautionary Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence has been received concerning a statement said to have been made by the defendant. It is for you to determine whether the defendant did in fact make the statement. If you find that he did, then you must determine what weight, if any, you think the statement deserves. In determining what weight, if any, should be given the statement, you should consider all matters in evidence having to do with the statement, including those concerning the defendant's personal characteristics, the conditions under which the statement was made, and the personal characteristics of the person who said that the defendant made the statement.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Curley, No. 93-CR-86-S (W.D. Wis. 1994).
RELATED NCJIC MATERIALS:
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Statements: Prior Investigation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION :
You are instructed that, prior to the alleged statements by __________ (name of defendant) to the ___________ (name of law enforcement agency), there was no competent evidence against __________ (name of defendant) and the evidence you have heard of the investigation which was conducted prior to __________ (name of defendant) statements was offered merely for background information and to acquaint you with the nature of the investigation.
RELATED NCJIC MATERIALS:
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Defendant’s Statements: Repeating Third Party Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for you to consider the statements made by __________ (name of defendant) to the ___________ (name of law enforcement agency) and to the grand jury as evidence against him, the state must prove beyond a reasonable doubt that __________ (name of defendant) was not merely repeating or embellishing statements which he heard from ___________ (name of third party). If the state has not proven this, then you may not consider these statements as evidence against __________ (name of defendant).
RELATED NCJIC MATERIALS:
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Defendant’s Statements: Uncorroborated Confession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An accused may not be convicted on his own uncorroborated confession. There are at least three bases for this rule. First, confessions may be unreliable because they were coerced or induced. Second, even if a confession is not involuntary, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation –– whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past. Third, the experience of the courts, the police and the medical profession recounts a number of false confessions voluntarily made. If you find __________'s (name of defendant) statements to the ___________ (name of law enforcement agency) voluntary, but find no corroboration of them, you must return a not guilty verdict.
AUTHORITY:
Smith v. United States, 348 U.S. 147, 153 (1954).
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Defendant’s Statements: Reliability & Voluntariness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
I have permitted you to hear evidence of a statement that __________ (name of defendant) allegedly signed for a [police detective] [and] [an FBI] agent concerning the __________ (crime[s]) at issue in this case. You are left with the important job of deciding whether that statement is reliable, and whether it therefore should be considered, or whether it is unreliable and should not be considered. You alone must make this decision.
In weighing the reliability of the statement, the first question is whether the statement was voluntary. A statement is not voluntary under the law if it is the result of conduct by law enforcement officers that overrides the judgment of the defendant. If the law enforcement officers exerted no pressure, in the form of threats, promises, subtle coercion, choice of uncomfortable surroundings, or suggestions, then the statement is voluntary.
If, on the other hand, there was at least some pressure put on the defendant by law enforcement officers, you must decide whether that pressure was enough to overcome the power of __________ (name of defendant) to resist it at the time. You should consider factors like education, experience, age, sophistication, physical surroundings, intelligence, physical and emotional condition, and any other facts that you think made __________ (name of defendant) either more able or less able to resist police pressure, in deciding whether that pressure outweighed __________ ‘s (name of defendant) ability at the time to resist it. If the police pressure was greater than __________’s (name of defendant) ability to resist, in your opinion, then the statement was involuntary and you must disregard it entirely in deciding ultimately whether __________ (name of defendant) has been proven guilty or not. Keep in mind that you are not asked to judge the conduct of the law enforcement officers, good or bad; you are asked to judge the voluntariness of the statement.
If you decide that the statement was voluntary, then you next must decide whether those and any other factors still make it unreliable, in whole or in part. All involuntary statements are assumed unreliable, which is the reason they are rejected entirely, but not all voluntary statements are necessarily reliable. If the statement was voluntary as a preliminary matter, consider that statement with all of the other evidence you have heard, and decide as you will whether the statement is in the end evidence that you are confident relying upon, and to what extent.
AUTHORITY:
Crane v. Kentucky, 476 U.S. 683 (1986) [defendant entitled to submit question of confession's reliability to jury, and issue of reliability overlaps factually with voluntariness]; United States v. Kampiles, 609 F.2d 1233, 1243 (7th Cir. 1979) [defendant entitled to have jury decide whether confession coerced]; 18 U.S.C. §3501(a); Colorado v. Connelley, 479 U.S. 157, 164-67 (1986) (requirement of some coercive police conduct); Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990) [explaining balancing of police threats or actions inducing fear against capacity for rational choice of confessor]; see generally Arizona v. Fulminante, 499 U.S. 279 (1991).
SAMPLE INSTRUCTION # 2:
I have permitted you to hear evidence of a statement that __________ (name of defendant) allegedly made to law enforcement officers concerning involvement with __________ (crime[s]). You are left with the important task of deciding whether that statement is reliable, and whether it therefore should be considered, or whether it is unreliable and should not be considered. You alone must make this decision.
In weighing the reliability of the statement, the first question is whether the statement was voluntary. A statement is not voluntary under the law if it is the result of conduct by law enforcement officers that overrides the judgment of the defendant. If the law enforcement officers exerted no pressure, in the form of threats, promises, subtle coercion, choice of uncomfortable surroundings, or suggestions, then the statement is voluntary.
If, on the other hand, there was at least some pressure put on the defendant by law enforcement officers, you must decide whether that pressure was enough to overcome the power of __________ (name of defendant) to resist it at the time. First, you should consider any inducements, promises, threats, or strategies used by the police officers to persuade __________ (name of defendant) to make a statement. [If you find that the police promised __________ (name of defendant) that (he/she) would be set free if (he/she) made a statement to the police, then any statements made by __________ (name of defendant) after the promise was made are involuntary and must not be given any weight whatsoever.] You also should consider whether the police used, displayed, or threatened __________ (name of defendant) with force or weapons at the time of his arrest or after.
You also should consider factors like education, experience, age, sophistication, physical surroundings, intelligence, physical and emotional condition, and any other facts that you think made __________ (name of defendant) either more able or less able to resist police pressure, in deciding whether that pressure outweighed __________’s (name of defendant) ability at the time to resist it. You may consider as well __________’s (name of defendant) previous contacts with police, or lack of contacts, in determining (his/her) ability to resist police pressures. If the police pressure was greater than __________’s (name of defendant)ability to resist, in your opinion, then the statement was involuntary and you must disregard it entirely in deciding ultimately whether __________ (name of defendant) has been proven guilty or not. Keep in mind that you are not asked to judge the conduct of the law enforcement officers, good or bad; you are asked to judge the voluntariness of the statement.
If you decide that the statement was voluntary, then you next must decide whether those and any other factors still make it unreliable, in whole or in part. All involuntary statements are assumed unreliable, which is the reason they are rejected entirely, but not all voluntary statements are necessarily reliable. If the statement was voluntary as a preliminary matter, consider that statement with all of the other evidence you have heard, and decide as you will whether the statement is in the end evidence that you are confident relying upon, and to what extent.
AUTHORITIES:
Crane v. Kentucky, 476 U.S. 683 (1986) (defendant entitled to submit question of confession's reliability to jury, and issue of reliability overlaps factually with voluntariness); United States v. Kampiles, 609 F.2d 1233, 1243 (7th Cir. 1979) (defendant entitled to have jury decide whether confession coerced); 18 U.S.C. §3501(a); Colorado v. Connelly, 479 U.S. 157, 164-67 (1986) (requirement of some coercive police conduct); Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990) (explaining balancing of police threats or actions inducing fear against capacity for rational choice of confessor); see generally Arizona v. Fulminante, 499 U.S. 279 (1991); United States v. Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990) ("[I]f the government feeds the defendant false information that seriously distorts his choice, by promising him that if he confesses he will be set free ... then the confession must go out"); Stein v. New York, 346 U.S. 156, 185-86 (1953) (past experience with police is relevant factor to be considered in determining voluntariness of statement).
SAMPLE INSTRUCTION # 3:
I have permitted evidence of certain statements that the defendant, __________ (name of defendant), made to law enforcement concerning involvement in the __________ (crime[s]). If those statements by __________ (name of defendant) were voluntary –– that is, the product of a free and unrestrained will and deliberate choice –– you may consider those statements, and give them such weight as you believe they deserve. If, on the other hand, you conclude that a statement was involuntary, you must give it no weight, and exclude it from your mind entirely. A defendant's involuntary statement to law enforcement authorities may not be used against (him/her) in any way.
You alone must decide whether __________’s (name of defendant) statements were voluntary or involuntary. In making that determination, you should consider all of the circumstances, as the evidence here has shown them to be. Specifically, you should consider the personal characteristics of the defendant, including (his/her) education and intelligence, (his/her) physical and emotional condition, and (his/her) prior experience with the police. You should also consider any inducements, methods or strategies used by law enforcement officers to persuade __________ (name of defendant) to make a statement. Any promise to the defendant by law enforcement authorities, express or implied, however slight, will render a statement involuntary. You may also consider the fact that the defendant was in custody when (he/she) made these statements, for the effect that custody may have had on (his/her) mental or emotional condition.
The burden is on the state to prove the defendant's statements were voluntary beyond a reasonable doubt.
AUTHORITIES:
Crane v. Kentucky, 476 U.S. 683 (1986); Barrera v. State, 99 Wis. 2d 269, 298 N.W.2d 820 (1980), cert. denied, 451 U.S. 972 (1981); State v. Verhasselt, 83 Wis. 2d 647, 266 N.W.2d 342 (1978); Norwood v. State, 74 Wis. 2d 343, 363-65, 246 N.W.2d 801 (1976); State v. Hunt, 53 Wis. 2d 734, 193 N.W.2d 858 (1972); State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 265, 133 N.W.2d 753 (1965); Barth v. State, 26 Wis. 2d 466, 132 N.W.2d 578 (1965); Bram v. United States, 168 U.S. 532, 542-43 (1897).
SAMPLE INSTRUCTION # 4:
In weighing __________’s (name of defendant) statements to __________ (law enforcement agency), if you find them voluntary beyond a reasonable doubt, you may then consider, if you wish, the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the confession will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.
AUTHORITIES:
Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Defendant's Oral Statements Summarized In Writing
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard testimony from witnesses that __________ (name of defendant) made oral statements to them on __________ (date), which they later summarized in writing. Before you may consider such a statement, you must decide whether __________ (name of defendant) actually made the statement attributed to (him/her). Keep in mind in deciding that question any factors that may have affected either __________’s (name of defendant) understanding, thinking, and memory, or the police officers' understanding, thinking, and memory at the time of the conversation or later when they wrote notes. Such factors might include stress, emotion, haste, intimidation, or distraction.
In deciding whether __________ (name of defendant) actually made the statements attributed to (him/her), you also should consider the following factors: whether __________ (name of defendant) hand wrote a statement in (his/her) own words; whether the officer questioning __________ (name of defendant) transcribed __________’s (name of defendant) statement verbatim; whether __________ (name of defendant) signed the alleged statement, whether __________ (name of defendant) had the opportunity to read the statement and make corrections; and whether the statements attributed to __________ (name of defendant) actually reflect the questions asked by the officer, rather than any statements made by __________ (name of defendant) .
If you find that __________ (name of defendant) actually made the statement in issue, and that the witnesses recounted it accurately, you may consider the same factors, and any others you think important, in deciding what weight to give the statement.
AUTHORITIES:
Crane v. Kentucky, 476 U.S. 683 (1986) [jury final arbiter of voluntariness]; State v. Miller, 35 Wis. 2d 454, 465, 151 N.W.2d 157 (1967) [jury should consider accuracy of witness' recounting of statement]; Wis. JI-Crim 180.
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Defendant’s Statements: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The State has introduced evidence of statements which it claims were made by the defendant. It is for you, the jury, to determine how much weight, if any, to give to each statement.
In evaluating each statement, you should consider three things.
First, you must determine whether the statement was actually made by the defendant. Only so much of a statement as was actually made by a person may be considered as evidence.
Second, you must determine whether the statement was accurately restated here at trial.
Finally, if you find that the statement was made by the defendant and accurately restated here at trial, you must determine whether the statement is trustworthy. "Trustworthy" simply means whether the statement ought to be believed.
You should consider the facts and circumstances surrounding the making of each statement, along with all the other evidence in the case, in determining how much weight, if any, the statement deserves.
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Defendant’s Statements: "Admission By Silence"
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In the law there is a doctrine known as "admission by silence." The government seeks to invoke this doctrine in this case.
The doctrine holds that when an accusatory or incriminatory statement is made in the presence of one who is accused or incriminated by the statement, and the person who is accused or incriminated remains silent, then (his/her) silence is evidence that the accusation or incriminating statement is true.
In order to be able to invoke this doctrine it is necessary for the government to prove four matters:
(1)that the statement was made;
(2)that the defendant was present when the statement was made;
(3)that the defendant heard and understood the statement;
(4)that a normal and prudent person, upon hearing such a statement, would immediately react to it and deny the accusation.
Insofar as such statements are concerned, the defendant has no burden of proof. The defendant need not disprove any one of these facts. If the government has not proven each of these facts to your satisfaction, then the silence of the defendant is of no probative value and cannot be considered as evidence against (him/her).
In weighing whether a defendant heard such an incriminating or accusatory statement, you may consider whether there has been proof by the government of the following:
(1)the distance between the defendant and the speaker;
(2)whether the defendant was included in the conversation being held by the speaker;
(3)whether the incriminating statement or accusation was directed to the defendant;
(4)whether the defendant reacted in any way to show that (he/she) heard and understood the statement;
(5)the loudness of the speaker's voice;
(6)whether there were any obstructions between the speaker and the defendant.
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Statements Or Admissions: Multiple Defendants
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A statement may not be considered by you as evidence against any defendant other than the one who made it.
AUTHORITIES:
Former Seventh Circuit Pattern Instructions 3.10.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Vitek Supply Corp., Case No. 95-CR-221 (E.D. Wis. 1996).
SAMPLE INSTRUCTION # 2:
Any testimony concerning a statement supposedly made by a defendant to the police before or after being arrested cannot be considered by the jury as evidence against any other defendant. It would be a violation of a defendant's rights under the United States Constitution for a jury to consider as evidence against him any statement made by someone else while the defendant was not present.
Accordingly, you may consider statements supposedly made by a defendant to law enforcement authorities only against that defendant and against no one else.
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Defendant’s Statements: Admissions/Statements To An Informant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If [admissions] [statements] to an informant are not corroborated, the evidence is not sufficient to convict.
AUTHORITIES:
United States v. Roth, 777 F.2d 1200, 1206 (7th Cir. 1985), citing United States v. Trombley, 733 F.2d 35, 37-38 (6th Cir. 1984) (per curiam).
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Juvenile’s Statements: Voluntariness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Juveniles are especially susceptible to the pressures, subtle and otherwise, inherent in custodial interrogation. Therefore, you are instructed to consider any custodial statements by juveniles with the greatest caution and care and to not place any weight in a custodial statement by a juvenile unless you are convinced that the statement was voluntary, not only in the sense that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.
AUTHORITY:
In re Gault, 387 U.S. 1, 55 (1967).
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Defendant Under The Influence: Trustworthiness Of Statement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the trustworthiness of the [oral statements] [and] [written confession] given by the defendant in this case, you may consider whether or not the defendant was in a [drugged condition] [under the influence of ________] at the time these statements were made and this confession was given.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Loveday, No. H-7717 (Circuit Court, Milwaukee County, 1973).
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Jury Should Determine If Defendant Was Party To Telephone Conversations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence has been received concerning telephone conversations said to have been engaged in by the defendant. It is for you to determine whether the defendant was a party to those conversations.
AUTHORITY:
Former Federal Criminal Jury Instructions of the Seventh Circuit, Sec. 3.09 (as modified) at 30.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987).
RELATED NCJIC MATERIALS:
See generally Chapter 28: Out Of Court Statements By Defendant.
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].