THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Drugs, Controlled Substances: Substance Testing/Identification Instructions
1. Weight Of Substance Identification
Testimony By Chemists: Factors To Consider
2. Weight To Be Given Initial
Screening Test
3. Screening/Field Test Insufficient To
Prove Substance Is Controlled Substance
4. Weight Re: Ex Parte Tests Of
Chemicals
5. Accuracy Of Scientific Testing Apparatus
6. Prosecution Must Prove Substance Is
Controlled Substance; Jury Not To Speculate
As To The Identity Of The Substance
7. Controlled Substance Testing: Burden Of
Proof
8. No Inference From Defendant’s Failure
To Have Private Laboratory Test Substance
9. Failure Of Prosecution Expert To Prove
Case
10. Prosecution Must Prove That Tests Are Specific For
Particular Substance
11. Tests For Particular Substance: Cocaine
12. Tests For Particular Substance: Heroin
13. Tests For Particular Substance: Amphetamine
14. Failure Of Prosecution To Perform Additional
Testing
15. No Speculation On Identity Of Substance
16. Defense Theory: Tests Not Properly Performed
17. Defense Theory: Expert Not Qualified
18. Suspicion That Substance Is Narcotic Drug
Insufficient To Convict; No
Speculation As To Identity Of Substance
19. "Narcotic Drug" Includes Any Derivative
Of Opium; Prosecution’s Burden
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Weight Of Substance Identification Testimony By Chemist: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the weight to be given to the identification testimony of chemists [who relied upon a standard], you may consider whether [testimony has been adduced] [you have heard testimony] concerning the manner in which the standards were stored and the precautions which were taken to assure these standards were not contaminated.
AUTHORITIES:
United States v. Friedland, 444 F.2d 710 (1st Cir. 1971); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 2:
In considering the weight you give to the testimony of the prosecution's forensic scientists, you may consider whether the method they used to identify __________ (controlled substance) is a method generally accepted and approved by the scientific community and whether these witnesses testified to the error rate of their methodology.
AUTHORITIES:
United States v. Orzechowski, 547 F.2d 978, 982 & nn. 3 & 4 (7th Cir. 1976); United States v. Umentum, 548 F.2d 987, 992-93 & n.3 (7th Cir. 1976).
SAMPLE INSTRUCTION # 3:
In considering the weight you give to the testimony of the prosecution's forensic scientists, you may consider whether they had available in their laboratories more precise methods of determining whether an unknown compound was __________ (controlled substance).
SAMPLE INSTRUCTION # 4:
The [complaint] [information] [indictment] charges __________ (name of defendant) with ___________ (crime charged, e.g., possessing cocaine base with intent to distribute it) In order for the prosecution to prove this offense it must prove beyond a reasonable doubt that the substance seized from __________ (name of defendant) was __________ (controlled substance) and not some other substance.
The state has offered the testimony of an employee of ________ (lab, e.g., the Wisconsin State Crime Laboratory) who testified that (he/she) analyzed [this] [these] substance(s) and, upon this analysis, formed the opinion that [it was] [they were] __________ (controlled substance). It is for you the jury to determine how much weight, if any, to give to this opinion.
In determining how much weight to give to this opinion you may consider whether the state has presented evidence concerning the following:
1. The falsifiability, refutability or testability of the scientific theory upon which the analytic methods used by its witness are based.
2. Whether the techniques utilized by the state's witness were subject to peer review and recognized during that review process as valid methodologies.
3. The known or potential rate of error of the scientific techniques utilized by the analyst to test the substances.
4. The general acceptance of the methodology utilized by the analyst.
Evidence of each of the foregoing factors should be considered by you in determining how much weight, if any, to be given to the opinion of the state's witness that the substance(s) (he/she) tested [is] [are] __________ (controlled substance).
AUTHORITIES:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2796-97 (1993); Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 613 (7th Cir. 1993).
SAMPLE INSTRUCTION # 5:
In considering how much weight, if any, to give to the opinion of the employee of ________ (lab, e.g., the Wisconsin State Crime Laboratory) who tested the substances seized from __________ (name of defendant), you may consider to what extent the witness understands the theory underlying the procedures (he/she) employed to test these substances.
AUTHORITIES:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2796-97 (1993).
SAMPLE INSTRUCTION # 6:
In considering the manner in which the standard chemicals were stored, you may consider whether evidence had been adduced that the temperature and moisture were controlled and whether the chemists tested other vials from the same batch and whether these batches were internally consistent.
AUTHORITIES:
United States v. Friedland, 444 F.2d 710 (1st Cir. 1971); United States v. Capocci, 433 F.2d 155, 157 (1st Cir. 1970); Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969).
SAMPLE INSTRUCTION # 7:
You are instructed that in considering whether or not analytical techniques were sufficient to identify a particular drug, you may consider whether other recognized techniques [should have been followed for the analysis of such drug] [are regularly followed for the analysis of this drug and whether the equipment was available to the chemist to perform these other tests].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum,, No. 75-CR-103 (E.D. Wis. 1976); United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975).
SAMPLE INSTRUCTION # 8:
In deciding whether or not the analytical techniques used here were sufficient to identify a particular drug, you may consider whether other recognized techniques are regularly followed for the analysis of this drug and whether the equipment was available to, or could have been obtained by, the government chemists to perform these other tests.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, Case No. 75-CR-83 (E.D. Wis. 1975) (suitably modified).
SAMPLE INSTRUCTION # 9:
In weighing the tests performed by any chemist, you may consider [whether they are recognized as valid tests in the scientific literature upon which the chemist relied] [the extent to which these tests are recognized in the scientific literature as appropriate tests to identify __________ (controlled substance,e.g., LSD, its salts, isomers, and salts of its isomers]. [And you may consider whether the testimony has been adduced concerning the calibration of the equipment.]
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975); United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976) [content of second bracket] United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979) [second sentence].
SAMPLE INSTRUCTION # 10:
In considering the results of the tests performed by_____ (alleged expert), you may consider whether he testified that (he/she) relied upon a standard against which (he/she) compared the results of the tests (he/she) performed.
If_____ (alleged expert) relied upon such a standard and the results obtained from performing tests upon it, you should consider whether you heard evidence by persons who had first-hand knowledge that such substance was standard __________ (controlled substance e.g., l-cocaine). Results of tests upon a purported standard are meaningless unless sufficient evidence has been heard to convince a jury that the standard was what it purported to be.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See also generally NCJIC 305.5.8 [Expert Testimony/Scientific Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Weight To Be Given Initial Screening Test
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering what weight and importance to give the initial screening test performed by __________ (name of law enforcement officer) on the substance allegedly taken from the defendant on _______ (date), you may consider that __________ (name of law enforcement officer) is not an expert in chemistry, and that the only expert chemist who testified in this case,__________ (name of expert), testified that (he/she) did not rely on the initial screening test performed by __________ (name of law enforcement officer) in forming (his/her) opinion that Exhibit ______ contains __________ (controlled substance). Allegation and proof of the particularities of the toxic nature of the alleged controlled substance is required in all cases.
AUTHORITIES:
Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38, 39 (1977); Hurst v. State, 72 Wis. 2d 188, 240 N.W.2d 392, 399 (1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also generally NCJIC 30.1 [Lay Or Nonexpert Opinion Testimony].
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Screening/Field Test Insufficient To Prove Substance Is Controlled Substance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that a screening test, or field test, like that which __________ (name of law enforcement officer) testified (he/she) performed, is not enough standing alone to establish that something is a controlled substance.
AUTHORITIES:
State v. Wind, 60 Wis. 2d 267, 272, 208 N.W.2d 357, 361 (1973); State ex rel. Huser v. Rasmussen, 85 Wis. 2d 441, 443, 270 N.W.2d 62, 63 (1978).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also generally NCJIC 30.1 [Lay Or Nonexpert Opinion Testimony].
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Weight Re: Ex Parte Tests Of Chemicals
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The jury should place little weight on ex parte demonstrations with regard to chemicals. Ex parte tests made solely for the purposes of litigation are given negligible probative value.
AUTHORITIES:
Hutzler Bros Co. v. Sales Affiliates, 163 F.2d 260, 265 (4th Cir. 1947); Donner v. Walgreen Co., 44 F.2d 637, 642 (D.C. Cir. 1930).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Accuracy Of Scientific Testing Apparatus
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In evaluating the accuracy of scientific testing apparatus, you may consider whether testimony has been adduced concerning the [calibration] [sensitivity] of the equipment.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976) [calibration]; United States v. Lamon, Case No. 89-CR-134 (E.D. Wis. 1989); United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976) [sensitivity].
SAMPLE INSTRUCTION # 2:
When test results require the operation of a micro-processor, or computer, the jury should consider whether it heard evidence of the computer program, its reliability, the means by which its inputs and outputs were verified and tested, and any testimony concerning the calibration of the computer and verification of its performance.
In weighing the results of such tests, you may consider the extent to which such evidence was presented concerning the operation and programming of the computer.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Prosecution Must Prove Substance Is Controlled Substance; Jury Not To Speculate As To The Identity Of The Substance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
One of the elements of these offenses is that the substance(s) tested by the government chemist [is] [are]__________ (controlled substance) as __________ (controlled substance) is defined in the Controlled Substances Act, Title 21.
There is only one way that the government could meet its burden of proving that the substance tested by its chemist falls within the statute: that is to prove beyond a reasonable doubt that the substance is __________ (controlled substance) in fact. You may not speculate as to the identity of the substance. [If you have a reasonable doubt that the substance tested by the government chemist could be something other than __________ (controlled substance), regardless of what that might be, you must find the defendant not guilty] [If you have a reasonable doubt that the substance tested by the government chemist is __________ (controlled substance), regardless of what you think the substance might be, you must find the defendant not guilty of Count ____].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Lamon, Case No. 89-CR-134 (E.D. Wis. 1989).
SAMPLE INSTRUCTION # 2:
You may not speculate as to the identity of the substance. If you have a reasonable doubt that the substance tested by the government chemist is [a narcotic form of] __________ (controlled substance, e.g., heroin), as defined by the statute, you must find the defendants not guilty. Similarly, if all that the government has proven is that the substance is __________ (controlled substance) without proving that it is either a derivative of ________ (substance, e.g., opium), or a substance chemically identical to such derivative, then the government has not proven its case.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975).
SAMPLE INSTRUCTION # 3:
The government has introduced white powder in its case as well as testimony concerning other powder which has not been offered in evidence. You may not speculate on the chemical composition of this powder. If the government has not proven beyond a reasonable doubt that the powder is __________ (controlled substance, e.g., cocaine), you may not consider the powder as evidence of ___________ (crime, e.g., a conspiracy to possess and distribute cocaine).
AUTHORITIES:
United States v. Umentum, 547 F.2d 987, 993 n.2 (7th Cir. 1976); United States v. Orzechowski, 547 F.2d 978, 982-83 nn.3,4 (7th Cir. 1976).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
Cf. United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998) (approved by the Court but not given).
SAMPLE INSTRUCTION # 4:
The evidence in this case is that there are probably hundreds of isomers of heroin. The government has charged that the defendants engaged in transactions involving the narcotic drug heroin. In order for the government to prove these offenses, it must prove beyond a reasonable doubt that its tests were specific for only one of these isomers –– 1-heroin –– and that none of the other isomers of heroin would yield the same results.
Within the term 1-heroin, I include the term 1-heroin hydrochloride, which is the salt of that one isomer of heroin which is a narcotic drug as defined by the Controlled Substances Act.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Controlled Substance Testing: Burden Of Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In a criminal case, a defendant does not have a burden of proof. That is, it is not necessary that the defendant prove anything in order that the jury must acquit (him/her). If any evidence offered by a defendant creates in the mind of a juror a reasonable doubt that the government has proven one of the essential elements of an offense, then such juror is required to vote not guilty as to that offense.
For example, considerable testimony was heard by [you] [the jury] concerning tests which were performed by the government chemist and whether such tests were properly performed and, if so, whether they were specific for the substances charged in the indictment. In this connection, the defendant does not have the burden of proving that these substances were lawful. If the defendant's evidence, both in the cross-examination of the government expert, and the examination of (his/her) own expert, creates in your mind a reasonable doubt of the [specificity of these tests] [ identity of the substance], then you must find the defendant not guilty of those charges which require as an element of the offense that the substance be a controlled substance.
As I have stated before, merely because the defendant calls witnesses, whether they are expert witnesses or not, does not impose upon (him/her) any obligation to prove anything, and it would be a violation of your sworn oath as jurors to require that a defendant prove (his/her) innocence.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 2:
The prosecution has the burden of proving beyond a reasonable doubt that Exhibit(s) _____ [is] [are] __________ (controlled substance). The defendant does not have the burden of persuading you that Exhibit(s) [is] [are] not __________ (controlled substance).
In determining whether the prosecution has met its burden you should consider both the direct and cross examination of its chemist and any other evidence you have heard concerning the identity of these Exhibits.
SAMPLE INSTRUCTION # 3:
The defendant has no burden of proving that the substances (he/she) allegedly possessed were not __________ (controlled substance). If the evidence in the case raises in your mind a reasonable doubt that the tests performed by the government chemist identify __________ (controlled substance) beyond a reasonable doubt, then you must find the defendant not guilty on Count ______.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. No Inference From Defendant’s Failure To Have Private Laboratory Test Substance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The law of __________ (state) does not permit a defendant to have an independent private laboratory test a substance which the prosecution claims is an illegal drug. For this reason you should draw no inference from the failure of the defendant to have a private laboratory test Exhibit(s)______.
SAMPLE INSTRUCTION # 2:
The defendant has no burden of proving that the substance which (he/she) [delivered] [possessed] was ___________ (substance e.g., one of the lawful isomers of cocaine) and no inference may be drawn from the defendant's failure to have a chemist test the substance. The defendant had no duty to prove the substance lawful; at all times the burden remained on the State.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, 75-CR-83 (E.D. Wis. 1975); United States v. Umentum, 75-CR-103 (E.D. Wis. 1976).
SAMPLE INSTRUCTION # 3:
The defendants have no burden of proving that the substances involved in this case are not what the government alleges they are, and no inference may be drawn from the fact that the defendants' chemist did not test these substances [himself] [herself]. [Merely because defendants called a chemist as a witness does not impose upon them the duty of proving that the substances were something other than what the government alleges] [Merely because the defendant called a chemist as a witness does not impose upon (him/her) the duty of proving that the substances were lawful]. At all times the burden remains on the government.
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); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975); United States v. Umentum, No. 75-CR-103 (E.D. Wis., January, 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See also generally NCJIC Chapter 270: Burdens And Standards Of Proof.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Failure Of Prosecution Expert To Prove Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is the defendant's position that the prosecution did not prove beyond a reasonable doubt that Exhibit(s)_____ [is] [are] __________ (controlled substance).
It is the defendant's position that the prosecution must rely upon the results generated by the ___________ (testing device, e.g., Fourier Transform Infrared Spectrometer) and that the employee of the ____________ (lab, e.g., Wisconsin Crime Laboratory) called by the prosecution neither understood the theory nor the practical application of this instrument.
SAMPLE INSTRUCTION # 2:
In Count(s) _________ of the [complaint] [information] [indictment], the defendants are charged with ___________ (crime, e.g., conspiracies to engage in transactions involving heroin). Although the government need not prove the identity of government Exhibits _______ as part of its proof of Count(s) ________, it is necessary to the proof of these counts that the government establish that each of the defendants intended to ___________ (crime, e.g., conspire to engage in transactions involving heroin, a Schedule I narcotic drug controlled substance), and to that extent the proof or lack of proof of identity of government Exhibits _______ may be considered by you.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, No. 75-CR-103 (E.D. Wis. January, 1976).
SAMPLE INSTRUCTION # 3:
In response to the charge in the state's information, __________ (name of defendant) contends that the state has wholly failed to prove that Exhibit _____, tested by __________ (name of expert), contains _______ (item, e.g., the powder that was taken from the car), and that therefore there is absolutely no reliable evidence that there was in fact __________ (controlled substance) in _________ (location e.g., the car).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See also generally NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Prosecution Must Prove That Tests Are Specific For Particular Substance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In order for the defendant to be convicted of [this] [these] offense(s), the prosecution must prove beyond a reasonable doubt that Exhibit(s) _______ [is] [are] __________ (controlled substance).
Where in attempting to prove the identity of a substance the prosecution relies entirely upon the results of chemical tests and the testimony of the person who performed these tests, the prosecution must prove beyond a reasonable doubt that these tests are specific for that substance.
That is, the prosecution must prove that no substance other __________ (controlled substance) will give the same results on these tests as are given by ____________.
SAMPLE INSTRUCTION # 2:
If you are confused as to whether the tests performed by the government chemist are specific for __________ (controlled substance), you must acquit the defendant. [In other words, if you believe that a substance other than __________ (controlled substance) [or any of its salts or isomers] will give positive results on the tests that were used, then you must acquit the defendant.] The defendant may be found guilty of the offense charged in Count ______ only if you believe beyond a reasonable doubt that __________ (controlled substance) alone gives positive results under these tests.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Reigh, No. 76-CR-7 (W.D. Wis. 1976) [bracketed paragraph].
SAMPLE INSTRUCTION # 3:
The defendant may be found guilty only if you believe beyond a reasonable doubt that the tests performed by the witness _______ are specific for __________ (controlled substance) [or any of its salts or isomers] and that only __________ (controlled substance) [or any of its salts or isomers] gives the results which were obtained in the performance of these tests.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Reigh, No. 76-CR-7 (W.D. Wis. 1976).
SAMPLE INSTRUCTION # 4:
If you are confused as to whether the tests performed by the government chemist are specific for __________ (controlled substance), then, as to such counts which involve transactions in such substances, you must find the defendant not guilty. As to any count involving __________ (controlled substance), the defendant must be acquitted unless the government has proven beyond a reasonable doubt that its tests give positive results on and only on __________ (controlled substance). It is in part the defendant's theory of this case that the government has failed to prove that the tests which it performed upon the substances allegedly involved are specific for the controlled substance alleged in the indictment.
If the evidence you have heard in support of this facet of the defendant's theory creates in your mind a reasonable doubt that the tests performed by the government chemist are specific for __________ (controlled substance), then you must find the defendant not guilty of such counts in which there has been a failure of the government's proof.
SAMPLE INSTRUCTION # 5:
In considering whether the government has met its burden of proof as to the identity of the substances allegedly [possessed by the defendant] [imported , sold, or distributed by the defendant], you may consider approaching the problem in the following fashion:
At the outset, you have already been instructed that the defendants in a criminal case have no burden. The burden never shifts from the government to establish its case beyond a reasonable doubt. [You may draw no inference whatsoever from the failure of the defendant to call a chemist as a witness or to test the substance in question.]
You should consider whether the government has proven beyond a reasonable doubt that each substance tested was what it was charged in the indictment. [In arriving at this decision, you may consider whether or not or to what degree, the test performed by the government chemist were specific for __________ (controlled substance)] [In order to make such a finding, you must first find that the tests, as they were performed by the government chemist, were specific for that form of __________ (controlled substance) and that no other substance would yield the same results].
[If you conclude that the government has not proven beyond a reasonable doubt that its tests specific for that form of __________ (controlled substance) , then you must find the defendant not guilty of the substantive charges.]
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, Case No. 75-CR-103 (E.D. Wis. 1975); United States v. Orzechowski, Case No. 75-CR-83 (E.D. Wis. 1975) [suitably modified].
SAMPLE INSTRUCTION # 6:
It is part of the defendants' theory of this case, that as far as Count(s) _______are concerned, the government has failed to prove that the tests which it performed upon the substances allegedly involved in those counts are specific for the controlled substances alleged in the indictment. Now, if the evidence you have heard in support of this facet of the defendants' theory creates in your mind a reasonable doubt that the tests performed by the government chemist are specific for __________ (controlled substance e.g., 1-cocaine and heroin), then you must find the defendants not guilty of such counts in which there has been a failure of the government's proof.
It is further the defendants' theory that, prior to performing the tests in this case, the government chemist had no experience in performing a mixed melting point test on the free base on substances suspected of being __________ (controlled substance e.g., 1-cocaine) and further, that (he/she) had no prior experience in running nuclear magnetic resonance spectroscopy on such substances. And it is further the defendants' theory that the government chemist relied neither on standard reference spectra nor recognized scientific treatises in the field of analytic chemistry and that he did not compare (his/her) test results with any identifiable reference spectra in the scientific literature.
AUTHORITIES:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Tests For Particular Substance: Cocaine
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering whether the government has met its burden of proof as to the identity of the substances allegedly sold by the defendant, you may consider approaching the problem in the following fashion:
At the outset, you have already been instructed that the defendant in a criminal case has no burden. The burden never shifts from the government to establish its case beyond a reasonable doubt. You may draw no inference whatsoever from the failure of the defendant's chemist to test the substances in question.
You may first consider whether the government has proven beyond a reasonable doubt that the substances tested were coca leaves or any salt, compound, derivative, or preparation of coca leaves, or any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical to any of these substances.
The testimony in the case has revealed that cocaine is an alkaloid with a variety of isomers. It is not disputed that the only isomer which is naturally derived from the coca plant is l-cocaine. L-Cocaine can be synthetically constructed from non-coca leaf origins. L-Cocaine is clearly covered by the statute. Therefore, you may first consider whether or not the substances tested were proven to be l-cocaine. If you find beyond a reasonable doubt that the substances tested were l-cocaine, then you have found that these substances are Schedule II controlled substances.
In arriving at this decision, you may consider whether or not, or to what degree, the tests performed by the government chemist were specific for l-cocaine.
SAMPLE INSTRUCTION # 2:
There are eight substances which are closely related. Each of them has cocaine in its name and is a form of cocaine. Only one of these, l-cocaine, is a derivative of cocoa leaves or a substance chemically identical or equivalent to such a derivative. The State cannot prove its case against __________ (name of defendant) unless it has proven beyond a reasonable doubt that the kind of cocaine which was delivered by (him/her) was the unlawful kind, l-cocaine.
SAMPLE INSTRUCTION # 3:
One of the elements of these offenses is that the substances tested by the government chemist are cocaine as cocaine is defined in the Controlled Substances Act, Title 21, Section 841(a)(1), Schedule II(a)(4). I have previously read to you the language of that statute. That statute only covers those forms of cocaine which are derivatives of coca leaves or which are chemically equivalent or identical to such derivatives. The defendant cannot be convicted unless the government has proven beyond a reasonable doubt that the substances tested by the government chemist are those forms of cocaine that are either derivatives of coca leaves or substances chemically equivalent or identical to such derivatives.
There are only two ways that the government could meet its burden of proving that the substances tested by its chemist fall within the statute.
The first is to prove beyond a reasonable doubt that the substances are derivatives of coca leaves. The second is to prove beyond a reasonable doubt that the substances are chemically equivalent or identical to a derivative of coca leaves. You may not speculate as to the identity of the substances. if you have a reasonable doubt that the substances tested by the government chemist are those forms of cocaine covered by the statute, you must find the defendant not guilty. Similarly, if all that the government has proven is that the substances are cocaine without proving that they are either derivatives of coca leaves or substances chemically equivalent or identical to such derivatives, then the government has not proven its case.
The defendant has no burden of proving that the substances involved are lawful and no inference may be drawn from the fact that the defendant's chemist did not test these substances (himself/herself). Merely because the defendant called a chemist as a witness does not impose upon (him/her) the duty of proving that the substances were lawful. At all times the burden remains on the government.
AUTHORITY:
United States v. Umentum, 547 F.2d 987 (7th Cir. 1976).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975).
SAMPLE INSTRUCTION # 4:
If the evidence you have heard in support of the defendant's theory creates in your mind a reasonable doubt that the tests he performed in this case are specific for a derivative of coca leaves or a substance which is chemically equivalent or identical to such a substance, then you must find the defendant not guilty.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, 547 F.2d 987 (7th Cir. 1976).
SAMPLE INSTRUCTION # 5:
It is the defendant's theory of this case that lcocaine is a derivative of coca leaves and that d-cocaine is neither a derivative of coca leaves, nor a substance which is chemically identical or equivalent to a derivative of coca leaves; that d-cocaine and l-cocaine react differently with the chiral reagents and have different physiological effects; and that the only substance which is chemically identical or equivalent to the l-cocaine which is a derivative of coca leaves is synthetically produced 1-cocaine.
It is further his theory that, prior to performing the tests in this case, the government chemist had no experience in performing a mixed melting point test on substances suspected of being l-cocaine; that he was not present when the supposed standard of l-cocaine was received in the laboratory and never tested the supposed standard; that the mixed melting point which he obtained was substantially higher than what he would have obtained had the substance which he tested been cocaine chloroplatinate; and that if the substances which he tested by the mixed melting point were not pure, then the mixed melting point of the pure substance would have been even higher than the temperature which he measured.
It is further his theory that the government chemist relied neither on standard reference spectra nor recognized scientific treatises in the field of analytic chemistry and that he did not compare his test results with that which appears in the scientific literature.
If the evidence you have heard in support of the defendant's theory creates in your mind a reasonable doubt that the tests performed in this case are specific for a derivative of coca leaves or a substance which is chemically equivalent or identical to such a substance, then you must find the defendant not guilty.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, 75-CR-83 (E.D. Wis. 1975).
SAMPLE INSTRUCTION # 6:
It is the defendant's theory of this case that there are a number of stereoisomers of cocaine and that the only stereoisomer of cocaine which is unlawful is l-cocaine; that is, only l-cocaine is a derivative of coca leaves or a substance which is chemically equivalent or identical to a derivative of coca leaves; that d-cocaine, d-pseudo-cocaine, l-pseudo-cocaine, d-allo-cocaine, l-allo-cocaine, d-allo-pseudo-cocaine, and l-allo-pseudo-cocaine are neither derivatives of coca leaves nor substances which are chemically equivalent or identical to such derivatives; that these other stereoisomers react differently with the chiral reagents and have different physiological effects.
It is further his theory that, prior to performing the tests in this case, the government chemists had limited experience in performing a mixed melting point and polarimeter test on substances suspected of being l-cocaine; that the values which he obtained on these tests were not sufficiently checked against recognized scientific reference treatises; that he never compared the results he obtained on these tests with the results he would have obtained on stereoisomers other than l-cocaine.
It is further his theory that the government chemist relied neither on standard reference spectra nor recognized scientific treatises in the field of analytic chemistry and that he did not compare most of his test results with that which appears in recognized scientific literature.
It is further his theory that the government chemist is unable to distinguish between the stereoisomers of cocaine because his infra-red spectrum of the substance which he tested is not identical with the infra-red spectrum of his supposed standard; that he does not know whether his infra-red spectrophotometer was calibrated before or after the test which he performed in this case; and that no other test which he performed would distinguish between the various stereoisomers of cocaine.
SAMPLE INSTRUCTION # 7:
If you find that the substances tested were not proven to be l-cocaine then, having heard the testimony of the expert witnesses with regard to the degree of specificity and certainty associated with the various tests, you must determine whether or not the substances tested were "chemically equivalent or identical" with coca leaves, or any salt, compound, derivative, or preparation of coca leaves. If you find beyond a reasonable doubt that the substances tested were "chemically equivalent or identical" then you have found that these substances are Schedule II controlled substances.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Vlasak, No. 75-184 (D.P.R. 1976); United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975).
SAMPLE INSTRUCTION # 8:
You are instructed, that as a matter of law, that 1-cocaine hydrochloride is a controlled substance. You must ascertain whether or not the government has proven beyond a reasonable doubt that the substances in question were 1-cocaine hydrochloride. In so doing, you may consider all the evidence in the case which may aid the determination of that issue, including the testimony of any expert or other witness who may testify either to support or to dispute the proposition that the government's tests were specific for 1-cocaine hydrochloride.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 9:
The evidence in this case is that there are a number of isomers of cocaine. The State has charged __________ (name of defendant) with delivering that form of cocaine which is either a derivative of coca leaves or chemically equivalent to such a derivative. This isomer is called "l-cocaine."
In order for the State to prove its case, it must prove beyond a reasonable doubt that its tests were specific for l-cocaine and that none of the other isomers of cocaine would yield the same results.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, 78-CR-106 (E.D. Wis. 1979); United States v. Bastanipour, 80-CR-24 (N.D. Ill. 1981).
SAMPLE INSTRUCTION # 10:
The evidence in the case indicates that there are probably hundreds of isomers of cocaine. The government has charged in Count(s) _____ of this indictment that certain defendants engaged in transactions involving cocaine. In order for the government to prove that these offenses, it must proved beyond a reasonable doubt that its tests were specific for only one of the isomers 1-cocaine and that none of the other isomers of cocaine would yield the same results as are obtained on exhibit(s) _______.
AUTHORITIES:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 11:
-cocaine is a controlled substance and it is unlawful to possess it and import it. If you find that there is a substance d-cocaine, then you must determine whether the government has proven beyond a reasonable doubt that it is chemically identical or equivalent to l-cocaine as I have defined the phrase "chemically equivalent." If the government has not proven this beyond a reasonable doubt, then you must acquit the defendant on both counts.L
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Vlasak, 75-184 (D.P.R. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Tests For Particular Substance: Heroin
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In part it is the defendant's theory of this case that only l-heroin is a narcotic drug covered by the Controlled Substances Act and that thus, the government must prove that its tests were properly performed and, if properly performed, would be specific for this form of heroin.
It is further the defendant's theory that the government chemist relied neither on standard reference spectra nor recognized scientific treatises in the field of analytic chemistry, and that (he/she) did not compare his test results with any identifiable reference spectra in scientific literature.
If the evidence you have heard in support of the defendant's theory creates in your mind a reasonable doubt that the tests the chemist performed in this case are specific for l-heroin, then you must find the defendants not guilty of those counts in the indictment which have as an element the identity of the substance.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975).
SAMPLE INSTRUCTION # 2:
The government has alleged in Count(s) _______that certain of the defendants are engaged in transactions involving heroin. In order for the government to prove these counts, it is necessary that it prove beyond a reasonable doubt that its tests were specific for heroin, and none of the other isomers of heroin would yield the same results as are obtained by the government chemist on its exhibit(s) ______ .
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 3:
One of the elements of the offenses charged in Count(s) _____is that the substances tested by the government chemist is heroin or heroin hydrochloride as defined herein. I have previously read to you the language of that statute. You must ascertain whether or not the material in question was in fact heroin. In so doing, you may consider all the evidence in the case which may aid you in determining -- in the determination of that issue, including the testimony of any expert or other witness who may have testified that the substances in question were heroin. If the government has proven beyond a reasonable doubt that government's exhibit four and five are heroin or any of its salts, then it has met its burden of proof in that the substances involved in Count(s) ______heroin as defined by the statute.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 4:
The defendants are charged with offenses involving "heroin, a Schedule I narcotic drug controlled substance." It is the defendants' theory of this case that only l-heroin is a derivative of opium and that therefore only l-heroin is a form of heroin which is defined as a narcotic drug controlled substance. It is further the defendant's theory that the tests performed by the government in this case are not sufficiently specific to distinguish l-heroin from the other forms of heroin. If the evidence you have heard in this case creates in your mind a reasonable doubt that the tests performed by the government's chemist are specific for that form of heroin which is a "Schedule I narcotic drug controlled substance," then, you must find each of the defendants not guilty of the substantive offenses in this indictment.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Tests For Particular Substance: Amphetamine
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is the defendant's theory of this case that the tests performed by the government chemist will not distinguish between amphetamine and the non-optical isomers of amphetamine. If the evidence you have heard in support of the defendant's theories of this case create in your mind a reasonable doubt of (his/her) guilt, then you must find (him/her) not guilty.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Reigh, No. 76-CR-7 (W.D. Wis. 1976).
SAMPLE INSTRUCTION # 2:
The defendant has no burden of proving that the substance involved is not amphetamine or any of its salts or isomers.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Reigh, No. 76-CR-7 (W.D. Wis. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Failure Of Prosecution To Perform Additional Testing
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you find that the prosecution did not ask the Crime Laboratory to perform a test on Exhibit(s)_______, that the laboratory had the ability and equipment necessary to perform it, and that the results of this test would have been important to you and would not duplicate other tests which were performed, then you may, if you wish, infer that the reason the test was not performed was that the results of the test, if it had been performed, would not support the prosecution's case.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. No Speculation On Identity Of Substance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is your duty not to resort to imagination or suspicion.
You may not speculate as to the identity of the substance in __________’s (name of defendant) __________ (location, house, car) on __________ (date). If you have a reasonable doubt whether the substance was __________ (controlled substance), then you must find __________ (name of defendant) not guilty.
AUTHORITIES:
People v. Granados, 49 Cal. 2d 490, 496, 319 P.2d 346 (1957).
SAMPLE INSTRUCTION # 2:
You may not speculate as to the identity of the substances. If you have a reasonable doubt that the substances tested by the government are __________ (controlled substance) then as to those counts which require such a finding as an element you must find the defendants not guilty.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Defense Theory: Tests Not Properly Performed
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is the defendant's theory of this case that the tests performed by the government chemist were not properly performed and, as a consequence, the government has not proven that exhibit 1 is __________ (controlled substance) as previously defined.
If the evidence you have heard in support of the defendant's theory of this case, creates in your mind a reasonable doubt of (his/her) guilt, then you must acquit (him/her).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Defense Theory: Expert Not Qualified
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering whether the State has met its burden of proof, you may consider the testimony of all witnesses including the chemists called by the State. ___________ (first alleged expert) gave (his/her) opinion that the substance which (he/she) tested was __________ (controlled substance), but you may not consider that as the opinion of an expert. I concluded, after hearing the voir dire examination of ___________ (first alleged expert) , that (his/her) understanding of the principles underlying the tests which (he/her) performed was not sufficient to permit (him/her) to testify as an expert witness.
The other chemist called by the State,___________ (second alleged expert), was permitted to testify as an expert; however, you should recall that (he/she) never tested the substance, but merely testified to the principles underlying the tests which had been performed by ___________ (first alleged expert).
If the State has not proven beyond a reasonable doubt that the substance ___________ (first alleged expert) tested was __________ (controlled substance), then, regardless of its other evidence, __________ (name of defendant) must be found not guilty.
SAMPLE INSTRUCTION # 2:
___________ (first alleged expert) testified that in performing an analysis using an infrared spectrophotometer (he/she)compared the spectrum of the unknown sample submitted by the ________ (agency, e.g., Wisconsin Department of Justice) with the spectrum of known __________ (controlled substance e.g., l-cocaine). ___________ (second alleged expert) testified that a chemist in making such a comparison must rely upon his understanding of the theory of spectrophotometry in making a judgment call concerning whether observed differences in the spectra were significant or not; and whether such differences were minor variations or indicated that the substances were in fact different substances.
In considering the conclusion in ___________’s (first alleged expert) notes, you may consider whether (he/she) had a sufficient understanding of the basic principles of the instrument to recognize whether differences between spectra were significant.
SAMPLE INSTRUCTION # 3:
It is in part the defendant's theory of this case that the tests performed by the government chemist were not specific for __________ (controlled substance e.g., the narcotic drug heroin), and that the government has not proved beyond a reasonable doubt that other isomers would yield results different from those it obtained. In support of this theory, the defendant invites the attention of the jury to the failure of the government chemist to identify any recognized literature containing standard reference spectra which (he/she) used to compare the results (he/she) obtained in this case.
The defendant also notes and asks the jury to consider such testimony as has been received concerning the previous experience of the government chemist with the tests which (he/she) performed on these substances and (his/her) familiarity with the scientific theories underlying these tests and the interpretation of their results.
If the evidence you have heard in support of the defendant's theory creates in your mind a reasonable doubt of the specificity of government tests, then, as to Count ______, you must find each defendant not guilty.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See also NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Suspicion That Substance Is Narcotic Drug Insufficient To Convict; No Speculation As To Identity Of Substance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
One of the elements of this offense is that the substance allegedly [possessed] [delivered] by the defendant was __________ (controlled substance) as __________ (controlled substance) is defined in the Controlled Substances Act. It is not sufficient that the defendant and others may have acted as though they believed the substance was __________ (controlled substance). A suspicion on your part that the substance was __________ (controlled substance) is not sufficient to find the defendant guilty of [possession] [the offense], either. You may not speculate as to the identity of the substance. Before the defendant may be found guilty of this offense, it is necessary that the government prove beyond a reasonable doubt that the substance allegedly [possessed] [delivered] by the defendant was (controlled substance). If you have a reasonable doubt that the substance was __________ (controlled substance), as it is defined by law, you must find the defendant not guilty.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976).
SAMPLE INSTRUCTION # 2:
It is not sufficient that the defendant and others acted as though they believed the substance __________ (controlled substance) [or any of its salts or isomers]. A suspicion on your part that the substance was __________ (controlled substance) [or any of its salts or isomers] is not sufficient. You may not speculate as to the identity of the substance.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Reigh, No. 76-CR-7 (W.D. Wis. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. "Narcotic Drug" Includes Any Derivative Of Opium; Prosecution’s Burden
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The indictment in Count(s) _____ charges the defendants with conspiracies to engage in transactions involving that form of heroin which is a Schedule I narcotic drug controlled substance. If you find from the evidence in this case that there are a number of forms of heroin, then you must consider whether any or all of these forms constitute a narcotic drug controlled substance as that is defined in the Controlled Substances Act. In making this determination, you are instructed that the term "narcotic drug" includes any derivative of opium, as well as any substance which is chemically identical to a derivative of opium. It also includes any drug which has an "addiction-forming or addiction-sustaining liability similar to morphine." Thus, in order for the government to prove that the substances involved in this case are those charged in the indictment, it is necessary that it prove either that they are derived from opium, are chemically identical to a substance which is derived from opium, or that they have an addiction-forming or addiction-sustaining liability similar to morphine. There is no other way that the government can prove that these substances are those charged in the indictment.
SAMPLE INSTRUCTION # 2:
One of the elements of these offenses is that the substances tested by the government chemist are the narcotic form of heroin as heroin and narcotic drugs are defined in the Controlled Substances Act. I have previously read to you the language of that statute. That statute only covers those forms of heroin which are derivatives of opium, or which are chemically identical to such derivatives, or which have an addiction-forming or addiction sustaining liability similar to morphine. A defendant cannot be convicted unless the government has proven beyond a reasonable doubt that the substances tested by the government chemist are that form of heroin that is either a derivative of opium or a substance chemically identical to such a derivative.
There are only two ways that the government could prove that the substances tested by its chemist fall within the statute.
The first is to prove beyond a reasonable doubt that the substances are a derivative of opium. The second is to prove beyond a reasonable doubt that the substances are chemically identical to a derivative of opium. You may not speculate as to the identity of the substances. If you have a reasonable doubt that substances tested by the government chemist are that form of heroin covered by the statute, you must find the defendants not guilty. Similarly, if all that the government has proven is that the substance is heroin without proving that it is either a derivative of opium or a substance chemically identical to such a derivative, then the government has not proven its case.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Controlled Substances: Specific Substance Instructions.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 88.1.1 [Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven].
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].