THE SHELLOW COLLECTION
 Jury Instructions By James M. Shellow of Wisconsin
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Evidence: Hearsay Rule And Exceptions – Business Records

    1.    Weighing Business Records And Public Records
    2.    Weighing Business Records: Whether Record Was Generated For Examination By Third 
           Parties And Whether Author Of Record Expected They Would Rely On It
    3.    Weighing Business Records: Jury Should Consider Whether Record Was Prepared In 
           The Regular And Ordinary Course Of Business
    4.    Weighing Business Records: Jury May Consider Whether Preparer Testified
    5.    Absence Of Author Of Business Record
    6.    Weighing Business Records: Handwritten Entries
    7.    Weighing Business Records: Factors To Consider
    8.    Weighing Business Records: Care And Routine In Preparation Of Documents
    9.    Business Records: Trustworthiness
    10.  Business Records: Competency
    11.  Business Records: Authentication
    12.  Business Records: Authentication By Defendant
    13.  Personal Knowledge of Business Record's Author
    14.  Alleged Business Records
    15.  Defendant’s Personal Records
    16.  Business Records: Interoffice Memoranda
    17.  Rationale For Admitting Business Records
    18.  Business Records: Annotations And Marginalia
    19.  Business Records: Alterations Or Changes
    20.  Absence Of Business Records

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Weighing Business Records And Public Records

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The mere fact that the court has received in evidence a document as a [business record] [a public record] does not direct the jury to give it any particular weight or significance.

    [An] [Certain] Exhibit(s) have been admitted into evidence. It is for you to assess what weight should be given to [the] [these] exhibit(s).]

AUTHORITY:

Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1281 (E.D. Pa. 1981); Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1190, 1281 (E.D. Pa. 1980), aff'd in part, rev'd in part sub nom., In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

People v. Nechy, No. 85-4627-FH (Delta County, Michigan Circuit Court, 1985); United States v. Croft, No. 83-CR-11 (W.D. Wis. 1983).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Weighing Business Records: Whether Record Was Generated For Examination By Third Parties And Whether Author Of Record Expected They Would Rely On It

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    In considering what weight to give to business records, you may consider whether the record was generated by the business for examination by persons outside of that business, and whether the author of the record expected that outsiders would rely upon it.

SAMPLE INSTRUCTION # 2:

    I have admitted a number of documents as business records. I do not imply by this that I have found these records are entitled to any particular weight or credence, but only that they are admissible under the Rules of Evidence. In considering what weight to give to business records, you may consider whether the record was generated by the business for examination by persons outside of that business, and whether the author of the record expected that outsiders would rely upon it.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Croft, No. 83-CR-11 (W.D. Wis. 1983).

SAMPLE INSTRUCTION # 3:

    Merely because I have admitted a document as a business record does not imply that I have found that that record is entitled to any particular weight or credence but only that I have concluded that, as a matter of law, it may be considered by the jury along with the other evidence in the case. In considering what weight to give to such a business record you may consider whether the record was generated by the business for examination by persons outside of the employment of that particular business and whether the author of the record expected that these other persons would rely upon it or on the other hand whether it was merely an internal record or a form of shorthand which could be easily explained and discussed among the employees of the corporation which generated the record if there was any ambiguity to it. Ordinarily, greater weight should be accorded to business records which were generated for distribution outside the business which prepared them and which the preparer knew would be relied on by persons outside of the business in the conduct of their affairs.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Weighing Business Records: Jury Should Consider Whether Record Was Prepared In The Regular And Ordinary Course Of Business

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    I have admitted a number of documents as business records. By admitting them, I have not instructed the jury that any particular weight should be given to them. In determining what weight you should give to a business record, you should consider whether the record was prepared in the regular and ordinary course of the business which generated the record. It is the regularity and routine in the preparation of business records which lends to them credibility.

SAMPLE INSTRUCTION # 2:

    I have admitted a number of documents as business records. Merely because I have admitted them does not imply that you must give them any weight. In determining what weight you should give to a business record, you should consider whether the record was prepared in the regular and ordinary course of the business of the custodian through whom the record was introduced or whether the record was prepared for litigation or for some other unusual and extraordinary reason. Further, it is the regularity and routine in the preparation of business records which lends to them credibility and renders them admissible. If you find entries on business records which are unexplained or cryptic or which cannot be understood by you, then you should take all of these facts into consideration in determining what weight, if any, to give to such record.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Weighing Business Records: Jury May Consider Whether Preparer Testified

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    The Court has admitted a number of documents as business records through the testimony of the custodian of these documents. In some instances, the preparer of the record was called as a witness. In other instances, (he/she) was not. In considering the weight to be given to such documentary evidence, you may consider whether the preparer of the document was called as a witness and testified to the means of its preparation.

SAMPLE INSTRUCTION # 2:

    The Court has admitted a number of documents as business records through the testimony of the custodian of these documents. In some instances the preparer of the record was called as a witness by the government. In other instances the preparer was not called as a witness. The rules of evidence do not require that the preparer of a document be called as a witness in order to admit a document as a business record. However, it has long been held that the absence of the person who prepared the exhibits goes to the weight to be given to the evidence.

AUTHORITY:

United States v. Pfeiffer, 539 F.2d 668, 671 n.2 (8th Cir. 1976), citing other Eighth Circuit cases.

SAMPLE INSTRUCTION # 3:

    A number of records were introduced as business records by persons who had not been employed by the organizations which prepared the records, and were not custodians of those records. These records were admitted on the theory that by showing reliance on them a sufficient foundation for their admissibility had been laid. However, in determining the weight and credibility of such documentary evidence, you may consider whether the preparer of the record testified, whether any person testified who was familiar with the process by which such records were prepared, and whether there was any evidence that the persons who prepared those records had either personal knowledge of the matters which the records recited or had received that information from others who had personal knowledge of such matters.

    By admitting a document as a business record, I did not mean to instruct the jury that it was to be given any particular weight or credibility, but merely that it was evidence which could be considered by the jury if it wished.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    Absence Of Author Of Business Record

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The failure of the government to call as a witness the actual preparer of a document may be relevant to the weight or credibility of the document.

AUTHORITY:

United States v. Smith, 609 F.2d 1294, 1302 (9th Cir. 1979).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.    Weighing Business Records: Handwritten Entries

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    A number of documents which were admitted as business records have handwritten entries on them, which do not appear to have been placed on the record at the time the record was prepared. In considering the weight to be given to such records, you may consider whether there have been explanations for these hand-written entries.

SAMPLE INSTRUCTION # 2:

    I have admitted a number of documents as business records and some of these documents have handwritten entries on them which appear not to have been placed on the record at the time the original record was prepared. In some instances, there has been testimony explaining the circumstances under which these handwritten notations appear on the business records. Where such explanations have been offered, you may consider the explanations in conjunction with the business records and give to them such credibility and meaning as you feel they desire. If, on the other hand, these handwritten entries have not been explained, then you may not speculate as to their meaning. If you find that some understanding of the meaning of these handwritten entries must be had in order to understand the record in its entirety, then if you wish, you may ignore the entire record.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

7.    Weighing Business Records: Factors To Consider

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    __________ (name of witness) testified that (he/she) prepared bookkeeping records of some of the financial transactions in which (he/she), and __________ (name of defendant) engaged. The Court has admitted these papers in evidence so that you might have an opportunity to examine them for yourselves. Merely because the Court has admitted these papers and permitted you to examine them does not mean that you should give them any particular weight or significance. That is for you to decide.

    In determining how much weight or significance, if any, you should give to these papers you should consider the following:

    1.  Evidence concerning the completeness or incompleteness of these records.

    2.  Evidence concerning the accuracy of these records. 

    3.  Evidence concerning the source of the information used by __________ (name of witness) in compiling these records and the reliability of this source or sources.

    4.  Evidence concerning whether these records were made on approximately the date of the transactions which they supposedly describe.

    5.  Evidence concerning the regularity or routine with which these records were prepared.

    6.  Evidence concerning any motivation either of the person preparing the records or the person providing the preparer with information to falsify these entries.

AUTHORITY:

United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993); United States v. Lawrence, 934 F.2d 868, 870-71 (7th Cir. 1991); United States v. Wables, 731 F.2d 440, 449 (7th Cir. 1984); Datamatic Services, Inc. v. United States, 909 F.2d 1029, 1032 (7th Cir. 1990); United States v. Franco, 874 F.2d 1136, 1138-41 (7th Cir. 1989); Fed. R. Evid. 803(6).

SAMPLE INSTRUCTION # 2:

    The Court has admitted certain documents as business records. These documents were admitted because the Court found that they fell within the provisions of the business records exception to the hearsay rule as codified in the Federal Rules of Evidence. The mere fact that the Court has admitted a document as a business record, however, does not require the jury to give it any particular weight.

    In considering the weight to be given to a document which has been admitted as a business record, you may consider whether there has been evidence of the routine of the business which supposedly made the record and whose business record the document purports to be. Further, you may consider the extent to which the business verified the information which is contained in the document, and the extent to which the document was relied on by persons inside the business which created it[, as well as by persons in other businesses]. [You also may consider any other factor that bears on the likely reliability of the document.] All of these factors may be considered by you in determining what weight, if any, to be given to a document which has been admitted by the Court as a business record.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Croft, No. 83-CR-11 (W.D. Wis. 1983).

SAMPLE INSTRUCTION # 3: 

    In determining the weight to be given to documents which the Court has admitted as business records, the jury may consider whether the entries were made pursuant to a systematic and routine procedure for the conduct of a business, one characterized by careful checking, and habits of precision and regularity, such as will justify confidence in the reliability of the record keeping. Where there is a detailed showing of the nature of the business practice creating the document, the method of record-keeping, the source of the information, and the author's reliance on it, then the jury may consider the document as a reliable one and a document to which it may give credit.

    Even though the Court has admitted a document as a business record, the proponent of the document must show either (1) that the author of the document had personal knowledge of the matters reported, or (2) that the information he or she reported was transmitted by another person who had personal knowledge, acting in the course of a regularly conducted activity, or (3) that it was the author's regular practice to record information transmitted by persons who had personal knowledge. The jury may consider each of these three factors in determining what weight, if any, to give to a document which this Court has admitted as a business record.

AUTHORITIES:

Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1237 (E.D. Pa. 1980).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

8.    Weighing Business Records: Care And Routine In Preparation Of Documents

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The weight to be given to a document which has been admitted as a business record through the testimony of a custodian is determined by evidence of the care and routine in the preparation of such document.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

9.    Business Records: Trustworthiness

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Merely because a document is created and maintained by a corporation does not make it sufficiently trustworthy to make it admissible as a corporate statement.

AUTHORITY:

Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1306.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

10.    Business Records: Competency

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    The books and records of a corporation do not constitute competent evidence against the defendant merely because he is connected with the company.

AUTHORITY:

Gradsky v. United States, 342 F.2d 147, 153 (5th Cir. l965).

SAMPLE INSTRUCTION # 2:

    Corporate books of account are not competent against a stranger merely because they are the books of the company whose dealings they purport to record.

AUTHORITY:

United States v. Feinberg, 140 F.2d 592, 596 (2d Cir. l944).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

11.    Business Records: Authentication

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    The mere fact that documents are obtained from a corporation's files does not make those documents the records of the corporation. These documents must be authenticated. That is, the government, or the proponent of the document, must introduce evidence that the document is what it purports to be. The fact that it was produced from the files of a corporation is evidence which you may consider in determining whether the document is authenticated, but is not in and of itself determinative on this issue.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Linton, No. CR-R-80-24-ECR (D. Nev. l981).

SAMPLE INSTRUCTION # 2:

    In considering whether corporate records have been authenticated, proof that the book was kept by the corporation as a record of its proceedings is not a sufficient authentication without further evidence to show that the entries were made by the proper officer.

AUTHORITY:

Bruce v. McClure, 220 F.2d 330, 336 (5th Cir. l955).

SAMPLE INSTRUCTION # 3:

    The Court has admitted certain documents that the government contends are the business records of __________ (name of company), or statements of one or more of the defendants. It is for you to decide what those documents really are. In order to consider a document as evidence at all, you must first find that the document is what the party offering it claims it is. In making that determination, you may consider any testimony by a person who claims knowledge of the document, and any other evidence that helps you decide whether the document is or is not what the party offering it claims it is.

    If but only if you find that a document is what the party offering it claims it is, then you may decide exactly what weight, if any, to give that document. If you do not find that a document is what the offering party claims it is, you must disregard that document entirely.

AUTHORITIES:

FRE 901(a); see generally United States v. Hadley, 671 F.2d 1112, 1116 (8th Cir. 1982) ("Authentication by testimony of a witness with personal knowledge is sufficient to support a finding that the documents in question are what the proponent claims;" citing Fed. R. Evid. 901, 803(6)); United States v. Coohey, 11 F.3d 97, 99-100 (8th Cir. 1993); Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1131-32 (8th Cir. 1994).

SAMPLE INSTRUCTION # 4:

    The Court has admitted certain documents that the government contends are the business records of __________ (name of company), or statements of one or more of the defendants. It is for you to decide what those documents really are. In order to consider a document as evidence at all, you must first find that the document is what the party offering it claims it is.

AUTHORITIES:

FRE 901; see generally United States v. Hadley, 671 F.2d 1112, 1116 (8th Cir. 1982) ("Authentication by testimony of a witness with personal knowledge is sufficient to support a finding that the documents in question are what the proponent claims;" citing Fed. R. Evid. 901, 803(6)); United States v. Coohey, 11 F.3d 97, 99-100 (8th Cir. 1993); Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1131-32 (8th Cir. 1994).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

12.    Business Records: Authentication By Defendant

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    You are instructed that the government sought to authenticate certain records as being those of __________ (name of company). There was evidence that both __________ (name of defendant) and __________ (name of third party) were executives or employees of this corporation. The evidence is undisputed that __________ (name of third party) is dead. In considering whether the government authenticated these records as those of __________ (name of company), you are instructed that it could have called __________ (name of defendant) to the stand to authenticate these documents even though (he/she) is a defendant. Its failure to call (him/her) may be considered by you in weighing the sufficiency of its evidence in this case.

AUTHORITIES:

Carolene Products Co. v. United States, 140 F.2d 61, 66 (4th Cir. 1944), but see United States v. Austin-Bagley Corp., 31 F.2d 229, 233-34 (2d Cir. 1929), cited in Curcio v. United States, 354 U.S. 118, 125 n.4 (1957).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

13.    Personal Knowledge of Business Record's Author

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    A business record must be made by a person with knowledge or from information transmitted by a person with knowledge. In determining the weight to be given to a business record the jury may consider the evidence it has heard concerning the knowledge of the author and his or her sources of knowledge.

AUTHORITIES:

Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1190, 1273 (E.D. Pa. l980), aff'd in part, rev'd in part sub nom., In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986).

SAMPLE INSTRUCTION # 2:

    In considering the weight to be given to the various records which have been introduced in evidence as business records, you may consider the circumstances of the making of such writings or records, including the personal knowledge or lack of personal knowledge by the maker of the record.

AUTHORITIES:

See instructions submitted in Hanley v. United States, 416 F.2d 1160, 1166 n.13 (5th Cir. 1969).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

People v. Nechy, No. 85-4627-FH (Delta County, Michigan Circuit Court, 1985).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

14.    Alleged Business Records

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The Court has admitted certain documents in this case that the government contends were the business records of the __________ (name of company). The fact that I have admitted those records does not mean that they are what the government says they are, or that they should be given any particular weight. Both are for you to decide.

    If the only basis you have for deciding what these documents are is the out-of-court explanation of __________ (name of defendant # 1) to __________ (name of third party), then you may not consider any such documents as evidence relating to __________ (name of other defendant(s)). You must disregard those documents entirely as to those defendants. You may consider those documents as evidence against __________ (name of defendant # 1) if you find that he gave the explanation to which __________ (name of third party) testified.

    If, on the other hand, you conclude that the government has shown by evidence other than __________’s (name of defendant # 1) words that these documents were (1) records of events or acts of __________ (name of company), (2) made at or near the time of their occurrence, (3) made by or from information given by a person with knowledge of the events or acts, and that it was the regular practice of __________ (name of company) both (4) to make the record and (5) to keep it in the course of its regularly conducted business, then you may consider those documents as evidence relating to any or all of the defendants. In that event, you may give the documents such weight as you think they deserve.

AUTHORITIES:

FRE 104(e), 803(6), 901(a); contra In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 287-88 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

15.    Defendant’s Personal Records

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Documents prepared by a defendant that relate only to the personal dealings or banking transactions of __________ (name of defendant), not to the business of __________ (name of company), and are casual, sporadic, and vague at that, are not business records and may not be considered as evidence relating to any defendant other than the defendant who prepared them, and any defendant who is shown to have adopted them as his or her own statement.

AUTHORITIES:

FRE 803(6), 801(d)(2)(B); see Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 365 & 365 n.14 (7th Cir.), cert. denied, 484 U.S. 820 (1987).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

16.    Business Records: Interoffice Memoranda

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    A memorandum or record cannot be considered as having been made in the regular course of business unless it was made pursuant to established company procedures for the systematic or routine and timely making and preserving of company records.

    Items consisting of interoffice memoranda and letters, for which there was no evidence of any such company procedure, may be weighed by the jury in this light. If they were patently intended as communications between employees and not as records of company activity, then, even though the Court has admitted these documents as business records, the jury should give them little weight. Particularly is this so where such documents were casual and informant in nature, seeking or providing information of a kind where could be and perhaps was often communicated by telephone or in conference.

AUTHORITIES:

Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F.Supp. 1190, 1232 (E.D. Pa. 1980), aff'd in part, rev'd in part sub nom., In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986), citing Standard Oil Company of California v. Moore, 251 F.2d 188, 215 (9th Cir. 1957), cert. denied, 356 U.S. 975 (1958).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

17.    Rationale For Admitting Business Records

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The legislative history of the Business Records Act clearly shows that it was not the intent of the draftsmen to make admissible all evidence, no matter how incompetent or irrelevant, merely by virtue of the fact that it appeared in a record made in the regular course of business. Rather it was Congress' purpose to admit into evidence entries of a purely clerical or routine nature not dependent upon speculation, conjecture or opinion, where accuracy is substantially guaranteed by the fact that the record is an automatic reflection of observations, without the necessity of calling the various writers to identify the entries as their own.

AUTHORITIES:

Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1190, 1232 (E.D. Pa. 1980), aff'd in part, rev'd in part sub nom., In re Japanese Electronic Products Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986), citing Gordon v. Robinson, 210 F.2d 192, 196 (3d Cir. 1954).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

18.    Business Records: Annotations And Marginalia

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    In considering the records which were admitted into evidence as business records, you may consider whether there are any unexplained notations on such records. If such appear, they may be disregarded altogether or they may be considered by you to affect the weight and credibility of the evidence.

AUTHORITIES:

Juneau Square Corp. v. First Wisconsin Nat. Bank of Milwaukee, 475 F. Supp. 451, 463 (E.D. Wis. 1979) (Warren, J.) (holding that handwritten notations on documents properly excluded, where no evidence concerning identity of writer and no evidence that annotations were within regular practice of business); United States v. Bernard, 287 F.2d 715, 721 (7th Cir. 1961), citing Bodnar v. United States, 248 F.2d 481, 482-83 (6th Cir. 1957).

SAMPLE INSTRUCTION # 2:

    In considering the records which were admitted into evidence as business records, you may consider whether there are any unexplained notations on such records. If such appear, they may be considered by you, if you wish, to affect the weight and credibility of the evidence.

AUTHORITIES:

United States v. Bernard, 287 F.2d 715, 721 (7th Cir. 1961), citing Bodnar v. United States, 248 F.2d 481, 482-83 (6th Cir. 1957).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidencee.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

19.    Business Records: Alterations Or Changes

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Alterations or changes on documents which have been admitted as business records may be considered by the jury only if such alterations or changes have been explained by a witness with knowledge of the circumstances of such changes.

AUTHORITIES:

United States v. J.C. Boespflug Construction Co., 325 F.2d 54, 62 (9th Cir. 1963).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

20.    Absence Of Business Records

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    You have heard evidence that __________ (name of company) is unable to find any document or record of a security agreement granting __________ (name of company) a security interest in __________ (property, e.g., vehicles) before __________ (date). If you are satisfied that such a record or document would have been made and kept in the ordinary course of that __________’s (name of company) regularly conducted business activity, then you may consider the absence of that document or record as proof that there never was such a document or record.

AUTHORITY:

FRE 803(7).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC Volume 4: Evidence--Issues And Instructions.