THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Drugs, Controlled Substances: Chain Of Custody
1. Controlled
Substances: Chain Of Custody
2. Chain Of Custody And
Weight to Be Given Physical Evidence
3. Necessary Proof Of
Chain Of Custody
4. Chain Of Custody As
Only Evidence Of Possession
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Controlled Substances: Chain Of Custody
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In weighing the testimony of government chemists, you may consider whether a continuous chain of possession has been proven between the point of acquisition of the drug by the government and the tests performed by the chemist.
AUTHORITIES:
United States v. Keine, 424 F.2d 39, 40-41 (10th Cir. 1970); United States v. LePera, 443 F.2d 810, 812 (9th Cir. 1971).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976); United States v. Robinson, et al., No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 2:
In weighing the testimony of government chemists, you should consider whether a continuous and reliable chain of possession has been proven between the point of acquisition of the drug [by the government] [ by the police officers who searched the _______ [defendant, residence, vehicle, etc.]] and the tests performed by the chemist, or whether the possibility of tampering or switching substances remains. And in considering the weight to be given to the identification of the chemist, you may consider whether the testimony has been adduced concerning the manner in which the standards were stored and the precautions which were taken to assure that these standards were not contaminated. If you conclude the chain of possession is unreliable, you may conclude that the government has not proven the presence of _______ [cocaine, etc] beyond a reasonable doubt.
AUTHORITIES:
United States v. Lepera, 443 F.2d 810, 812 (9th Cir. 1971); United States v. Keine, 424 F.2d 39, 40-41 (10th Cir. 1970).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976).
SAMPLE INSTRUCTION # 3:
The question is never simply whether Exhibit _____ is ________ (controlled substance, e.g., cocaine), but rather the questions are whether the substance allegedly in the defendant's possession on ________ (date) was in fact ________ (controlled substance, e.g., cocaine), and whether this exhibit is that substance, substantially unaltered.
The process by which evidence seized at the scene of a crime gets to the courtroom is what lawyers call the "chain of custody," or "evidentiary chain." In deciding whether __________ (name of defendant) possessed ________ (controlled substance, e.g., cocaine) with intent to deliver on ________ (date), and in weighing the testimony of the chemist in this case, you should consider whether the government has proven a reliable chain of custody from the point of acquisition of the substance by the police, through testing, to the courtroom today.
If the government has not proven a reliable chain of custody to your satisfaction, and the possibility of tampering or switching substances remains, you may conclude that the government has not proven the presence of ________ (controlled substance, e.g., cocaine), an element of the crime charged in Count _____ , beyond a reasonable doubt. If you so conclude, you must find the defendant not guilty on Count ______.
AUTHORITIES:
State v. McCarty, 47 Wis. 2d 781, 177 N.W.2d 819, 822-23 (1970); 29 Am. Jur. 2d, Evidence §774.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 25.2.6 [Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized].
See also NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See NCJIC 96.3.3.4 [Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs Or Alcohol Into Jail Or Prison: Chain Of Custody As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Chain Of Custody And Weight to Be Given Physical Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In this case, the [State of __________] [United States government] alleges that the defendant, ___________ [name of defendant], possessed a controlled substance, namely __________ [cocaine, etc.], with intent to deliver the alleged cocaine to another person. You have heard testimony that ______ [cocaine, etc.] is __________ [a white powder, etc], and that one sample of __________ [cocaine, etc.] is indistinguishable from another sample to the naked human eye. Unlike an original oil painting by a famous artist, which would have unique characteristics that make that painting different from every other painting in the world, __________ [cocaine, etc] by its nature lacks unique characteristics that visibly separate or distinguish it from other samples of ______ [cocaine, etc], or from other white powders that are not controlled substances.
For this reason, the law places special emphasis on what is called "chain of custody." Chain of custody simply means testimony from those who participated in the series of events by which an item gets from the scene of original seizure by the police, through testing and storage, and to this courtroom. Proving chain of custody is the only way to establish that the substance actually seized by the police officers at the scene was not afterwards lost, destroyed in whole or in part, mislabeled, mistaken for something else, or tampered with in any way. Only by considering the reliability of the chain of custody can you be certain that the substance entered into evidence as an exhibit in this courtroom is the same substance that was taken from the defendant _________ [name]'s [person, residence, car, etc.] on __________ [date].
In deciding what weight or importance to attach to the alleged ______ [cocaine, etc] that has been offered into evidence here, you must consider the chain of custody. In considering the chain of custody, you may consider the following factors: any variations in physical weight not attributable to the accuracy of the measuring instruments; the seeming identical appearance of one white powdery substance with another white powdery substance; the resemblance of many legal white powdery substances to __________ [cocaine, etc]; the size of the item and ease with which it might be lost or misplaced; the passage of time; the number and identity of the persons who handled the item; the care or lack of care which persons in the chain of custody exercised in handling the item; and the timing and reliability of tests that were done as part of the chain of custody.
If, after considering all of the evidence, there remains a possibility that the substance taken from __________ [name]’s _______ [person, residence, car, etc.] was materially altered, tampered with, lost, destroyed or misplaced, so that there is doubt whether Exhibit _____ is the item taken from ____________ [name]’s ________ [person, residence, car, etc.], or whether that Exhibit is different in some material way, you must disregard [that] [those] exhibit(s) entirely and find the defendant not guilty. Only if you find it improbable that the substance taken from defendant's ________ [person, residence, car, etc.] has been exchanged, contaminated or tampered with in any way may you consider that substance as evidence at all.
If, on the other hand, you believe beyond a reasonable doubt on the basis of all of the evidence that the item marked as Exhibit ______ is _______ [cocaine, etc.] and is the same substance removed from the defendant's ________ [person, residence, car, etc.] on _________ [date], and if you also believe beyond a reasonable doubt based on all the evidence that the defendant possessed the substance on _________ [date], and had intent to deliver the substance to another person, then you should find the defendant guilty.
AUTHORITIES:
State v. McCarty, 47 Wis. 2d 781, 177 N.W.2d 819, 822-23 (1970); State v. Simmons, 57 Wis. 2d 285, 203 N.W.2d 887, 893-94 (1973); In re Paternity of J.S.C., 135 Wis. 2d 280, 400 N.W.2d 48, 52-53 (Ct. App. 1986); Wis. Stat. §904.01; FRE 401, 901; 29 Am. Jur. 2d, Evidence §774.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 25.2.6 [Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized].
See also NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See NCJIC 96.3.3.4 [Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs Or Alcohol Into Jail Or Prison: Chain Of Custody As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Necessary Proof Of Chain Of Custody
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The state has offered into evidence certain exhibits of white powder, which it tested and determined to be _______ [cocaine, etc.]. In order for those exhibits of alleged _______ [cocaine, etc.] to merit your consideration, the state's proof of chain of custody must be sufficiently complete so as to render it improbable that the original item has been changed, contaminated or tampered with.
AUTHORITIES:
In re Paternity of J.S.C., 135 Wis. 2d 280, 400 N.W.2d 48, 53 (Ct. App. 1986).
SAMPLE INSTRUCTION # 2:
You have received evidence of chemical test results performed by ___________, a state chemist. The weight you should give to these test results in part should be based upon your consideration of whether the prosecution has proven that it is improbable that the substances seized from the defendant’s residence were exchanged, contaminated or substituted prior to the tests performed by __________ (chemist). In making this determination whether the substances tested were those seized during the search of the defendant’s residence, you should consider whether a continuous chain of custody has been proven between the point of acquisition of the alleged ___________ (controlled substance) by and the tests performed by __________ (chemist).
AUTHORITIES:
In Re The Paternity of J.S.C., 135 Wis. 2d 280, 400 N.W.2d 48 (Ct. App. 1986).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 25.2.6 [Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized].
See also NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See NCJIC 96.3.3.4 [Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs Or Alcohol Into Jail Or Prison: Chain Of Custody As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Chain Of Custody As Only Evidence Of Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In deciding whether __________ (name of defendant) possessed __________ (controlled substance) [with intent to deliver] on ________ (date), as (he/she) is charged, you should consider that the evidence concerning the chain of custody of the __________ (item, e.g., white powdery substance) taken from ___________ (location) that day is the only evidence you have that Exhibit(s) ________ are in fact the items that were found at the time of __________’s (name of defendant) arrest.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 25.2.6 [Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized].
See also NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See NCJIC 96.3.3.4 [Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs Or Alcohol Into Jail Or Prison: Chain Of Custody As Defense Theory].