THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Defense Theory
1. Defense Theory:
Sample Instruction
2. Defense Theory
Instruction: Prosecution's Burden Of Proof
3. Defense Theory
Instruction: Good Faith Misunderstanding As To Consent
4. Defense Theory:
Reasonable Possibility Requires Verdict Of Not Guilty
5. Defense Theory: If
Defendant Reasonably Might Be Right Jury Must Acquit
6. Accidental Discharge Of
Weapon
7. Defense Theory:
Defendant Framed By Others
8. Defense Theory: Alibi
9. Defense Theory:
Discriminatory Enforcement
10. Defense Theory: Double Jeopardy
11. Defense Theory: Good Faith
12. No Good Faith Defense If Facts
Were Mistated Or Withheld From Person
Giving Advice
13. Honest Belief And Good Faith
Reliance On Others Negates Guilt Of Willful Wrongdoing
14. Defense Theory: Reliance on
Advice
15. Defense Theory – Intoxication
Re: Forming Intent
16. Defense Theory: Legal
Impossibility
17. Defense Theory: Provocation
18. Defense Theory: Reasonable
Reliance On Authority
19. Third Party Guilt; Burden Of
Proof
20. Third Party Guilt: Jury’s Job
Not To Solve Crime
21. Third Party Guilt: Jury May
Consider Whether Another Person Committed The Offense
22. Third Party Guilt: Jury Not To
Consider Whether Third Party Is Not On Trial
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Defense Theory: Sample Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The following is Defendant’s position on this case:
Mr. S, Mr. A, Mr. C and two unknown blacks planned a robbery of Mr. K and when he struggled during the course of the robbery, Mr. K was either hit or grabbed and then shot.
In the late evening hours of March 12, 1982 or the early morning hours of March 13, 1982, these persons met in the basement of Ms. B's house. Mr. C left the meeting driving his white over red Cadillac.
In the early morning hours of March 13, 1982, prior to the shooting, Mr. S along with the two blacks waited in Mr. A’s Ford van in the back of the Knights of Columbus Hall for Mr. K to return to his automobile. At about 1:50AM, when Mr. K had not returned, these three persons drove in Mr. A’s van to look for Mr. K and were observed driving the van in Nino's parking lot.
When Mr. K returned to the Knights of Columbus Hall at about 3:00AM, Mr. S and the two blacks followed him to the Mill Valley Salvage Company.
Mr. S was wearing a mask because Mr. K would have recognized him as a person with whom he had bet. The three assailants attempted to force Mr. K into the office of Mill Valley Salvage where he could be robbed and the office could be robbed. Mr. K fought back and was shot at three times. The person who actually shot Mr. K was relatively tall and held the gun somewhat over fifty-one inches off the ground.
Mr. K, after being shot, ran to the home of Mr. H. He told Mr. H that he had been shot and asked him to call an ambulance. He did not respond to Mr. H's repeated questions as to who had shot him. Finally, in response to repeated similar questions by a paramedic, Mr. K shouted that he had been shot by two blacks. Even though he may have recognized Mr. S as one of his assailants, he was unwilling to identify him. It is also possible that Mr. K honestly perceived his masked assailants to be black.
Mr. S and Mr. A worked at the truck and "chop shop" business of Mr. R on Milwaukee Avenue in Chicago, Illinois. Defendant lived just up the block on Willard and spent his time hanging around Mr. R's business. While there, and smoking cocaine with Mr. S, Mr. S confided to Defendant details of the murder Mr. S had committed in Waukesha, Wisconsin. Defendant had at least one further discussion with Mr. S concerning this murder when he was assisting Mr. S on a delivery for Mr. R. It is possible that Defendant had a third discussion with Mr. S on this subject.
When it appeared to Defendant that he would soon go to trial for armed robbery before Judge G., he contacted the organized crime section of the FBI in the hope that it would be able to help him on his pending robbery charges.
When Defendant met with Special Agent Jennings, he fabricated either his involvement or his personal knowledge of numerous federal crimes. Agent Jennings promised him that, if he would cooperate fully, the FBI would speak to the appropriate persons in the State of Illinois criminal justice system and either obtain a reduction of the robbery charges or get the cases continued until something could be worked out.
On May 17, 1983, Defendant was convicted before Judge G. and was immediately placed in the Cook County jail. Defendant contacted Agent Jennings daily after that in an attempt to get out of jail or be transferred to the federal facility. Finally, Agent Jenning told Defendant that he could only help him on the state charges if Defendant would give the state something. Defendant initially told Jennings that he had heard about this killing from Mr. W and when Agent Jennings told him that what was heard was hearsay and would not be of interest to the state, Defendant told Jennings that he was a participant and knew the facts from personal observation.
Defendant then told Agent Jennings and later testified before a grand jury about the details of Mr. K’s murder which he had learned from Mr. S. Where Mr. S had not furnished a particular detail, Defendant fabricated a plausible fact.
Defendant falsely implicated Mr. W and Mr. R out of revenge, because he believed that they had framed him as an actual participant in the robbery for which he was convicted and further because he was told that Mr. W had attempted to sexually assault Defendant’s girlfriend, Ms. M.
If the evidence you have heard in support of Defendant’s theory of defense creates in your mind a reasonable doubt of his guilt, then, as a matter of law, you must acquit him.
SAMPLE INSTRUCTION # 2:
It is Defendant’s theory of defense that Mr. S was responsible for the murder of Mr. K and that Defendant’s only knowledge of the crime came from several conversations concerning the murder that he had with Mr. S.
It is further his position that, after he was convicted of armed robbery before Judge G. in Chicago, he was told by Special Agent Jennings of the FBI that the FBI could only help him if he gave something to the state. In response to this statement, Defendant first told Agent Jennings that Mr. W had told Defendant about a murder in Wisconsin. When Agent Jennings replied that the state would not be interested in hearsay and was only interested in prosecuting the shooter, Defendant falsely told the agent that he was present at the shooting and repeated to agent Jennings what Defendant had learned from Mr. S.
Defendant also told Agent Jennings that Mr. W and Mr. R were involved in the shooting because he believed that they had caused his conviction for the armed robbery and because he had heard from his girl friend, Ms. M, that Mr. W had attempted to sexually assault her.
If the evidence you have heard in support of this position creates in your mind a reasonable doubt of Defendant’s, then, as a matter of law, you must find him not guilty.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Defense Theory Instruction: Prosecution’s Burden Of Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The burden of proof in a criminal case is always on the prosecution. When you are instructed by the Court on the defendant's position or theory of defense, this does not mean that the defendant must prove his position or theory. The government has the burden of disproving the theory of defense. If, after considering all of the evidence in the case, the defendant's theory causes you to have a reasonable doubt of a defendant's guilt, then you must find that defendant not guilty.
RELATED NCJIC MATERIALS:
See generally NCJIC 250.4 [Defenses And Defense Theories: Burden Of Proof On Prosecution].
See also NCJIC 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Defense Theory Instruction: Good Faith Misunderstanding As To Consent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________________ (name of accused) believes that his sexual encounter with __________________ (name of alleged victim) was the result of a good faith misunderstanding between the two of them, in which she willingly went ahead at the time but very shortly after began to wonder whether they should have become that intimate. If you do not find, based on all the evidence, that lack of consent was proven beyond a reasonable doubt, you must find __________________ (name of accused) not guilty.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 101.1.3 [Rape/Sex Crimes: Actual Consent As Defense Theory].
See also NCJIC 101.1.4 [Sex Crimes: Good Faith Belief In Consent As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Defense Theory: Reasonable Possibility Requires Verdict Of Not Guilty
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you believe, based on all the evidence, that __________________ (name of alleged victim) probably did not agree freely to have sexual intercourse with __________________ (name of accused), but still there remains a reasonable possibility that she did, you must find __________________ (name of accused) not guilty.
RELATED NCJIC MATERIALS:
See generally NCJIC 270.5.3 [Proof Beyond A Reasonable Doubt Requires More Than "Strong And Convincing Belief"].
See also NCJIC 270.4.3 [If Jury Has Reasonable Doubt It "Must" Acquit].
See also NCJIC 270.6.1 [Comparison Of Reasonable Doubt With Clear And Convincing Evidence Standard].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Defense Theory: If Defendant Reasonably Might Be Right Jury Must Acquit
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________________ (name of accused) believes that __________________ (name of alleged victim) agreed at the time to have sexual intercourse with him. If you think he reasonably might be right, given the evidence, you must find him not guilty.
RELATED NCJIC MATERIALS:
See generally NCJIC 270.5.3 [Proof Beyond A Reasonable Doubt Requires More Than "Strong And Convincing Belief"].
See also NCJIC 270.4.3 [If Jury Has Reasonable Doubt It "Must" Acquit].
See also NCJIC 270.6.1 [Comparison Of Reasonable Doubt With Clear And Convincing Evidence Standard].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Accidental Discharge Of Weapon
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that the defense in this case is that the gun from which the shot was fired, accidentally discharged. The defendant asserts that the accidental discharge was due not only to the poor manufacture of the gun, of which you have heard scientific evidence, but also to the fact that the gun was jolted immediately prior to its discharge.
AUTHORITIES:
Turner v. State, 64 Wis. 2d 45, 218 N.W.2d 502 (1974); United States v. Vole, 435 F.2d 774, 776 (7th Cir. 1970); United States v. Grimes, 413 F.2d 1376 (7th Cir. 1969).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Sanders, Case No. J-4434 (Milwaukee County, 1979).
RELATED NCJIC MATERIALS:
See NCJIC 252.2 [Accident].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Defense Theory: Defendant Framed By Others
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that it is the defendant’s theory of this case that __________ (name of third party) conspired with other persons to frame (him/her) for _____________(crime, e.g., a cocaine conspiracy). If the facts adduced in support of the defendant __________’s (name of defendant) theory, create in your mind a reasonable doubt of his guilt of this charge, then you must find the defendant __________ (name of defendant) not guilty of this offense.
AUTHORITY:
United States v. Vole, 435 F.2d 774, 776 (7th Cir. 1970) [This instruction refused; conspiracy conviction reversed].
SAMPLE INSTRUCTION # 2:
It is __________’s (name of defendant) theory of defense that (he/she) did not know what was in the package (he/she) was given and was framed on this charge of attempted delivery of __________ (type of contraband).
If the evidence you have heard in support of this theory creates in your mind a reasonable doubt of __________’s (name of defendant) guilt, then, as a matter of law, you should find (him/her) not guilty.
AUTHORITY:
United States v. Vole, 435 F.2d 774, 776 (7th Cir. 1970).
SAMPLE INSTRUCTION # 3:
It is the defendant's theory of this case that __________ (name of third party) is attempting to frame (him/her) by accusing (him/her) of a crime which (he/she) did not commit. If the evidence which you have heard supports defendant's theory of this case, and creates in your mind a reasonable doubt of (his/her) guilt, then you must acquit (him/her).
AUTHORITIES:
United States v. Vole, 435 F.2d 774, 776 (7th Cir. 1970); United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969); United States v. Dana, 457 F. 2d 205, 208 (7th Cir. 1972); Turner v. State, 64 Wis.2d 45, 218 N.W.2d 502 (1974); State v. Matejka, 186 Neb. 454, 183 N.W.2d 197 (1971).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979) (modified); United States v. Staben, No. 78-CR-83 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 4:
It is __________’s (name of defendant) theory of defense that (he/she) was framed by __________ (name of third party) and others; that these witnesses communicated with each other before they testified so that their stories would be consistent and that these witnesses were motivated falsely to implicate __________ (name of defendant) because they believed that by doing so they would lessen their prison sentences or receive other benefits from the government.
If the evidence you have heard in support of __________’s (name of defendant) theory of defense creates in your mind a reasonable doubt that (he/she) was a member of the conspiracy charged in the indictment, then, as a matter of law, you must find (him/her) not guilty.
AUTHORITIES:
United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970); United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976).
SAMPLE INSTRUCTION # 5:
If you find that [either] __________ (name of defendant[s]) were framed on these charges, then, regardless of other evidence against them, you should find them not guilty.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Defense Theory: Alibi
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Now __________ (name of defendant) has introduced testimony that (he/she) was not at __________ (location) at the time that the government contends that the offense charged in Count _____ was committed. It is not necessary for __________ (name of defendant) to prove that he was elsewhere in order to be acquitted. If the evidence you have heard from __________ (name of defendant) [and from __________ (name of third party)] creates in your mind a reasonable doubt that __________ (name of defendant) was at __________ (location) at approximately __________ (time/date), then you must find (him/her) not guilty of Count _____ of this indictment.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See generally NCJIC 251.2 [Alibi].
See also NCJIC 305.1.10 [Alibi].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Defense Theory: Discriminatory Enforcement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is the law in __________ (state) that the state is not permitted to enforce its laws in a discriminatory fashion. That is, the state may not choose to enforce provisions of law against only certain persons and not against other persons, who may have committed the same or similar types of acts. If you find that the state has not proven to you beyond a reasonable doubt that it has not engaged in a persistent and intentional discrimination in the enforcement of ________________ (statute) in the absence of a valid exercise of prosecutorial discretion, then you must return a verdict of acquittal.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Defense Theory: Double Jeopardy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Substances identified as _________ (name of substance e.g., cocaine and marijuana) were on the defendant's person when (he/she) was arrested on _________ (date). I have judicially noticed that the defendant has admitted (his/her) guilt to charges of possession of those substances, and he has been convicted of those crimes.
Under the laws of this state and the United States Constitution, a person may be convicted only once for a particular crime without violating (his/her) right to be free from what is known as "double jeopardy." Accordingly, if you are unable to find beyond a reasonable doubt that the source of the substances in Exhibits _______ is different from the source of the substances in the offenses of which defendant has already been convicted, you must acquit (him/her).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 257.2 [Double Jeopardy, Former Jeopardy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Defense Theory: Good Faith
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If the defendant believed in good faith that (he/she) was acting within the law, even if (he/she) was mistaken in that belief, there would be no crime. The burden of establishing lack of good faith and criminal intent rests upon the prosecution. A defendant is under no burden to prove his good faith; rather, the prosecution must prove bad faith or knowledge of falsity beyond a reasonable doubt.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Gavran and Ehrlich, No. 85-CR-77 (E.D. Wis. 1986).
SAMPLE INSTRUCTION # 2:
A person who acts on a belief or an opinion honestly held is not punishable under the statutes relating to these counts merely because the belief or opinion turns out to be inaccurate. An honest mistake in judgment or an error in management does not rise to the level of willfulness.
SAMPLE INSTRUCTION # 4 [Theft/fraud cases]:
Good faith is an absolute defense to the charge in this case since good faith on the part of the defendant is inconsistent with criminal intent or knowledge which are required elements of the charged offense.
If the defendant believed in good faith that (he/she) was acting properly, even if (he/she) was mistaken in that belief, and even if others were injured by (his/her) conduct, there would be no crime. This is true even if you determine that the defendant's good faith belief is objectively unreasonable.
The burden of establishing criminal intent and knowledge, as well as lack of good faith, rests upon the prosecution. A defendant is under no burden to prove (his/her) good faith; rather, the prosecution must prove unlawful intent, knowledge, and consequent lack of good faith beyond a reasonable doubt.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 252.10.2 [Good Faith].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. No Good Faith Defense If Facts Were Mistated Or Withheld From Person Giving Advice
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If an attorney or an accountant has a full account of the facts of what you are doing and what you intend to do and then says it is proper, it is lawful, your proceeding on that basis might serve as a strong indication that you were acting in good faith and not in bad faith.
On the other hand, you will realize that if some of the important facts are misstated to the accountant or lawyer or if some of the important information is withheld and not disclosed, the advice that the accountant or lawyer then gives can hardly be deemed to constitute a basis for claiming good faith in going ahead and acting on the basis of that uninformed and insufficiently implemented advice.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 252.10.2 [Good Faith].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Honest Belief And Good Faith Reliance On Others Negates Guilt Of Willful Wrongdoing
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Part of the basis for the defendant's claim that (he/she) is not guilty of willful wrongdoing is that he relied in good faith on his bookkeepers and accountant. If the defendant entrusted the duties of keeping (his/her) records and preparing (his/her) returns to (his/her) bookkeeping staff and (his/her) accountant, and if, in doing so, (he/she) honestly believed that they were qualified to perform the duties entrusted to them, and if (he/she) in good faith actually relied on them, then the defendant would not be guilty of willful wrongdoing with respect to any item or items of income which (he/she) fully disclosed to (his/her) bookkeepers or accountant, as the case may be.
SAMPLE INSTRUCTION # 2:
If a person honestly and in good faith seeks advice from an attorney as to what (he/she) may do in a matter, and in good faith honestly follows such advice, relying upon it and believing it to be correct, and only intends that (his/her) acts shall be lawful, (he/she) does not possess the specific intent required, even if such advice were an inaccurate construction of the law.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 252.10.2 [Good Faith].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Defense Theory: Reliance On Advice
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendants have claimed that they acted in good faith because they relied on the advice of that they were not violating the law. To decide whether or not the defendants acted in good faith, you may consider among other things the following factors:
1.Whether or not the defendants sought the advice of a competent .
2.Whether or not the defendants gave their all of the relevant facts known to them at the time;
3.Whether or not the defendants received an opinion from ;
4.Whether or not the defendants believed the opinion was given in good faith; and
5.Whether or not the defendants reasonably followed the opinion.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 252.10.2.2 [Defenses: Good Faith Reliance Upon Attorney Or Other Professional Advice].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Defense Theory – Intoxication Re: Forming Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you find that the defendants or any of them were intoxicated at the time of the events alleged in the indictment, then the government has the burden of proving that they were sufficiently sober to form the specific intent necessary to commit the crimes charged in the indictment.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 256.6 [Intoxication, Voluntary].
See also NCJIC 256.6.1.2 [Availability Of Voluntary Intoxication As Defense: Specific/General Intent Analysis].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Defense Theory: Legal Impossibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The jury is instructed that legal impossibility is a defense to the crime charged in the indictment. Thus, if the evidence shows that the acts of the defendant could not, as a matter of law or logic, have ________ (crime[s]) e.g., defrauded the government), then the defendants must be acquitted regardless of their intent or their acts.
AUTHORITY:
United States v. Berrigan, 482 F.2d 171, 186 (3d Cir. 1973).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 66.3 [Attempt: Defense Of Impossibility].
See also NCJIC 83.3.1.1 [Conspiracy: Impossibility As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Defense Theory: Provocation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering whether any defendant is guilty of an offense with which (he/she) is charged, you may consider whether the alleged victims provoked the defendants' conduct. If you find that the defendants' conduct was provoked in any fashion, and that their response to this provocation was reasonable, then no defendant can be convicted of any of the offenses with which (he/she) is charged.
SAMPLE INSTRUCTION # 2:
If the evidence shows that the defendants or any of them merely insulted or acted in a derogatory fashion toward the complainants and that as a result the complainants started the fight, then the defendants' conduct may have been provoked by the actions of the complainants and may have been undertaken to protect either themselves or others. If the evidence shows that the defendants were provoked in any fashion, then the burden is on the government to prove beyond a reasonable doubt that the defendants did not act in self defense.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 253.4.1.18 [Instruction On Heat Of Passion/Hot Blooded Reaction To Provocation Not Precluded By Self Defense].
See also NCJIC 255.3 [Heat Of Passion/Hot Blood, Provocation].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Defense Theory: Reasonable Reliance On Authority
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The government must prove beyond a reasonable doubt, in addition to the other elements of [the] [each] count, that it did not mislead the defendant into believing that (his/her) conduct was lawful. If a government agent actively misleads the defendant into believing that (his/her) conduct was lawful, and if the defendant actually and reasonably relied on the government agent's misrepresentation, then the defendant is not guilty of that offense.
AUTHORITIES:
United States v. P.I.C.C.O., 411 U.S. 655, 670-75 (1973); United States v. Hiland, 909 F.2d 1114, 1126 n.15 (8th Cir. 1990).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Third Party Guilt; Burden Of Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defense does not have the burden of solving this crime for you. Merely because the defense offers evidence that other persons may be responsible does not impose upon the defense any burden of proving these possibilities. The state always retains the burden of disproving all reasonable possibilities that the defendant is not guilty.
AUTHORITY:
Holland v. United States, 348 U.S. 121, 135-36 (1954).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 251.9 [Third Party Guilt].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Third Party Guilt: Jury’s Job Not To Solve Crime
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of defendant) has urged that (he/she) is innocent of this crime because (he/she) had no part in __________ (crime, e.g., killing the victim). If the evidence you have heard leaves you with a reasonable doubt about whether __________ (name of defendant) did __________ (crime, e.g., kill the victim), you must find (him/her) not guilty. In other words, if there is any reasonable possibility that someone else __________ (act, e.g., killed the victim), your duty is to find __________ (name of defendant) not guilty. __________ (name of defendant) has no obligation to prove who did __________ (crime, e.g., kill the victim). You are here to decide the narrow question of whether the defendant is guilty or not guilty; you are not here more generally to solve a crime.
AUTHORITIES:
Turner v. State, 64 Wis. 2d 45, 218 N.W.2d 502, 505 (1974); State v. Pruitt, 95 Wis. 2d 69, 289 N.W.2d 343, 348 (Ct. App. 1979); State v. Hess, 99 Wis. 2d 22, 298 N.W.2d 111, 116-17 (Ct. App. 1980) [all cases simply noting a defendant's general right to a theory of defense instruction in Wisconsin].
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 251.9 [Third Party Guilt].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Third Party Guilt: Jury May Consider Whether Another Person Committed The Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Count ____ charges that the defendant on or about __________ (date), __________ (crime, e.g., possessed with intent to distribute and did distribute approximately 1,000 pounds of marijuana). In considering the government's evidence on this count and whether it has proven beyond a reasonable doubt that the defendant committed the offense, you may consider whether you have heard testimony that another person committed such offense on or about that date. You may not speculate whether it was the defendant who committed this crime or whether it was another that committed this crime. The defendant may not be found guilty of Count ____ unless you are convinced beyond a reasonable doubt that it was (he/she) and not another person who __________ (crime, e.g., possessed 1,000 pounds of marijuana on or about September 20, 1977 and possessed it with intent to distribute it and did distribute it).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 251.9 [Third Party Guilt].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Third Party Guilt: Jury Not To Consider Whether Third Party Is Not On Trial
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There has been evidence in this case which, if believed, indicates that a person or persons other than __________ (name of defendant) may have committed the offense charged. The fact that the other person or persons are not on trial does not matter; that is, your concern is to decide whether __________ (name of defendant) is guilty or not guilty and it is the state's concern to charge the other person or persons if __________ (name of defendant) is not guilty.
AUTHORITY:
Wis JI-Criminal 247, modified by to apply factually to this case.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].
See also NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].
See also NCJIC 251.9 [Third Party Guilt].