THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Evidence: Circumstantial Evidence: Generally
1. Circumstantial
Evidence: General Instruction
2. Direct Evidence vs.
Circumstantial Evidence
3. Circumstantial Evidence
Alone May Raise Reasonable Doubt
4. Circumstantial
Evidence: Intent To Defraud -- Actual Knowledge Of Circumstance
Required
5. Circumstantial
Evidence: Suspicion Insufficient
6. Circumstantial
Evidence: Speculation Insufficient
7. Evidence May Be Direct
Or Circumstantial
8. Circumstantial
Evidence: Intent
9. Circumstantial
Evidence: Motive As Distinguished From Intent
10. Circumstantial Evidence: Jury
Must Be Convinced Evidence Excludes Hypothesis
Of Innocence
11. Circumstantial Evidence:
Reasonable Inferences
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Circumstantial Evidence: General Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The parties rely partly upon circumstantial evidence. Circumstantial evidence is the proof of certain facts from which a jury may logically infer the existence of other facts according to the knowledge or common experience of mankind.
It is not unusual in a criminal case to rely upon circumstantial evidence.
Circumstantial evidence may be so weak as not to meet the standard of proof required. However, circumstantial evidence may be stronger and more convincing than direct evidence.
To warrant a finding of guilt on circumstantial evidence, facts necessary for the conclusions sought to be established must be proved by competent evidence beyond a reasonable doubt and these facts must be consistent with each other and with the guilt of the defendant and the circumstances must lead you to conclude beyond a reasonable doubt that the accused committed the offense.
The evidence is not sufficient to meet the burden of proof if the facts simply render probable the guilt of the accused. The defendant must not be found guilty unless no other conclusion but that of the guilt of the accused fairly and reasonably grows out of all of the evidence in this case.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12 Circumstantial Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Direct Evidence vs. Circumstantial Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There are two types of evidence: direct and circumstantial. Direct evidence is the testimony of a person who claims to have personal knowledge of the commission of the crime which has been charged, such as an eyewitness. Circumstantial evidence is the proof of a chain of facts and circumstances which tend to show whether the defendant is guilty or not guilty. The law makes no distinction between the weight to be given either direct or circumstantial evidence. Therefore, all of the evidence in the case [, including the circumstantial evidence,] should be considered by you in arriving at your verdict.
AUTHORITIES:
7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 1.05 [Definition of "Direct" and "Circumstantial" Evidence] (1999).
NOTE: The defendant should request omission of the material in brackets because it is redundant and places undue emphasis on circumstantial evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 25.12 [Circumstantial Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Circumstantial Evidence Alone May Raise Reasonable Doubt
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Circumstantial evidence may also permit the inference the defendant is not guilty of the offense. Again such evidence may be stronger even than a defendant's denial of guilt. That is, circumstantial evidence alone may be sufficient to create* in your minds a reasonable doubt of the defendant's guilt, and if it does so, then you must find him not guilty.
* But see NCJIC 270.3.4 [Improper To State That Defendant Must "Raise" Or "Create" Reasonable Doubt].
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12 Circumstantial Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Circumstantial Evidence: Intent To Defraud -- Actual Knowledge Of Circumstance Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before any defendant can be found guilty of the crime charged, the government must prove beyond a reasonable doubt that such defendant had the specific and actual intent to defraud _______________.
This element may be established circumstantially. Thus, a conspirator's intent to defraud may be inferred from the fact that he personally knew that a venture was operating deceitfully. But since it is the personal knowledge of the invidious fact which warrants such an inference, nothing less than personal knowledge of intent will do to establish the fact even circumstantially. Thus, so-called constructive notice or knowledge of a circumstance, has no tendencies circumstantially or otherwise, to prove criminal intent.
AUTHORITIES:
Phillips v. United States, 356 F.2d 297, 303 (9th Cir. 1965).
RELATED NCJIC MATERIALS:
See also generally NCJIC 25.12 Circumstantial Evidence.
See generally NCJIC 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Circumstantial Evidence: Suspicion Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If circumstantial evidence merely creates a suspicion of guilt, it is insufficient to warrant conviction.
AUTHORITIES:
Bruno v. State, 171 Wis. 490, 497, 177 N.W. 610, 613 (1920).
RELATED SHELLOW MATERIALS:
THE SHELLOW COLLECTION: Circumstantial Evidence: Speculation Insufficient.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12 Circumstantial Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Circumstantial Evidence: Speculation Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A conviction cannot be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the fact that some unfavorable circumstances are not satisfactorily explained.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mattson, Special Court-Martial, Coast Guard (U.S.C.G. Group Milwaukee, Wis. 1976).
RELATED SHELLOW MATERIALS:
THE SHELLOW COLLECTION: Circumstantial Evidence: Suspicion Insufficient.
RELATED NCJIC MATERIALS:
See also generally NCJIC 25.12 Circumstantial Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Evidence May Be Direct Or Circumstantial
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence may be either direct or circumstantial. Direct evidence is that given by a witness who testifies concerning facts which he or she has directly observed or perceived through the senses. Circumstantial evidence consists of proof of facts or circumstances which, according to common experience, permit a reasonable inference that other facts existed or did not exist. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12 [Circumstantial Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Circumstantial Evidence: Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Intent ordinarily may not be proved directly, because there is no way of knowing with certainty what is within the human mind. You may, however, infer intent from all the facts and circumstances in evidence which tend to reveal that intent.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient].
See also generally NCJIC 25.12 Circumstantial Evidence.
See NCJIC Chapter 45: Criminal Intent.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Circumstantial Evidence: Motive As Distinguished From Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Intent and motive should never be confused. The motive of the accused is immaterial except insofar as evidence of motive may aid determination of state of mind or intent.
AUTHORITY:
United States v. Clavey, 565 F.2d 111, 116-17 (7th Cir. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See also generally NCJIC 25.12 Circumstantial Evidence.
See generally NCJIC 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient]
See also generally NCJIC Chapter 37: Motive.
See also NCJIC 37.2 [Motive Distinguished From Intent].
See NCJIC Chapter 45: Criminal Intent.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Circumstantial Evidence: Jury Must Be Convinced Evidence Excludes Hypothesis Of Innocence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In order to convict a defendant solely upon circumstantial evidence, the jury must be convinced that the evidence excludes every reasonable hypothesis of innocence to a moral certainty.
AUTHORITY:
State v. Weise, 124 Wis.2d 681, 694, 370 N.W.2d 745, 751 (1985).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Stinson, 397 N.W.2d 136 (Ct. App. 1986).
SAMPLE INSTRUCTION # 2:
While circumstantial evidence may support a conviction, it must be sufficient to enable a reasonable determination that it excludes every reasonable hypothesis except that of guilt.
AUTHORITY:
Whaley v. United States, 362 F.2d 938 (9th Cir. 1966).
SAMPLE INSTRUCTION # 3:
To convict a defendant on circumstantial evidence, the evidence must be so unequivocal and incriminating as to exclude every hypothesis of innocence.
AUTHORITY:
United States v. Bradley, 421 F.2d 924, 926 (6th Cir. 1970).
SAMPLE INSTRUCTION # 4:
You may consider circumstantial evidence in deciding whether the defendant knowingly possessed cocaine, and in deciding whether he had intent to deliver such cocaine if he knowingly possessed it. You may give any circumstantial evidence such weight as you believe it deserves. The circumstantial evidence must, however, be sufficiently strong to exclude every reasonable theory of innocence; that is, the evidence must be inconsistent with any reasonable hypothesis of innocence. The circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged.
AUTHORITIES:
State v. Shaw, 58 Wis. 2d 25, 29, 205 N.W.2d 132, 134 (1973); State v. Christel, 61 Wis. 2d 143, 211 N.W.2d 801, 809 (1973).
SAMPLE INSTRUCTION # 5:
The evidence does not have to remove every possibility before a conviction can be sustained. The state has the burden to show that all the facts necessary to warrant a conviction on circumstantial evidence must be consistent with each other and with the main facts sought to be proved, and the circumstances taken together must be of conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged. The circumstantial evidence must be sufficiently strong to exclude every reasonable theory of innocence, that is, the evidence must be inconsistent with any reasonable hypothesis of innocence. This is a question of probability, not possibility.
AUTHORITY:
Wis. JI-Criminal 170, note; State v. Shaw, 58 Wis. 2d 25, 29, 205 N.W.2d 132 (1973).
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12 Circumstantial Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Circumstantial Evidence: Reasonable Inferences
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before a fact sought to be established can be said to have been proved by circumstantial evidence alone, it is necessary not only that the circumstances proved by the evidence give rise to a reasonable inference of such fact, but also that no other inconsistent equally reasonable inference can be drawn from those same circumstances.
A "reasonable inference" is defined as a process of reasoning whereby from the facts otherwise admitted or established by the evidence in light of your common knowledge and experience, a reasonable and logical conclusion may be drawn that a certain fact is true. A reasonable inference is therefore said to be clearly distinguished from a mere guess or conjecture. The law does not permit speculation; moreover, on the basis solely of one inference so drawn, a further inference may not be drawn.
In other words, you can't pile an inference on an inference, but you may draw an inference only from the facts or circumstances which you find have been established by a preponderance of the evidence.
AUTHORITIES:
Juneau Square Corp. v. First Wisconsin Nat'l Bank, 475 F.Supp. 451, 460 (E.D.Wis.1979), aff'd, 624 F.2d 798 (7th Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980); Home Savings Bank v. Gertenbach, 270 Wis. 386, 404, 71 N.W.2d 347, 356 (1955) ["Building an inference upon an inference" is speculation] cf. United States v. An Article of Device, 731 F.2d 1253, 1262-63 & n.6 (7th Cir. 1984).
RELATED NCJIC MATERIALS:
See generally NCJIC 25.12 Circumstantial Evidence.