THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Evidence: Defendant’s Acts/Conduct

    1.    Adoptive Admissions
    2.    Consciousness Of Guilt: Threatening To Harm Witness
    3.    Fabrication Or Suppression Of Evidence: Not Sufficient To Establish Guilt;  
           Suppression Of Evidence By Prosecution
    4.    No Inference Of Guilt From Flight

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

1.    Adoptive Admissions

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

    Evidence has been introduced that statements possibly accusing __________ (name of defendant) of the crimes charged in the indictment were made, and that the statements neither were denied or objected to by the defendant. You are instructed that an unsworn accusation of a crime by someone speaking out of court is no evidence at all, and may not even be considered by you unless the defendant expressed (his/her) agreement with the accusation, either by words or by unmistakable conduct.

    Before you may consider such evidence at all, then, you would have to be satisfied that the government has shown each of the following facts: (1) The statement actually was a direct accusation of criminal wrongdoing. While the speaker need not have used any special words, the statement must have been more than a casual suggestion that __________ (name of defendant) may have done something morally wrong; (2) __________ (name of defendant) must have heard and understood the accusation; (3) Under the circumstances, the defendant must have been likely to deny the accusation verbally then and there if it was untrue. In weighing this factor, you should consider whether __________ (name of defendant) was at that moment in a weaker position than (his/her) accuser, what custom or social graces would have suggested (he/she) do, and whether silence might have served as a denial in those circumstances; (4) By (his/her) words or conduct, __________ (name of defendant) must have intended to demonstrate (his/her) belief in the truth of the statement; and (5) __________ (name of defendant) had no privilege then to refuse to respond to the accusation.

    Only if you find each of these five facts may you consider __________’s (name of defendant) silence an admission of the truth of such an accusation. Any ambiguity in the situation, including in __________’s (name of defendant) own actions or silence, must be considered in __________’s (name of defendant) favor and against finding that (he/she) accepted the accusation.

FRE 801(a)(2), 801(d)(2)(B); United States v. Coppola, 526 F.2d 764, 769 n.2 (10th Cir. 1975) (adoption of accusation in criminal case must be unambiguous); Wickliffe v. Duckworth, 574 F. Supp. 979, 984 (N.D. Ind. 1983) (trial court did not err in admitting adoptive statement, where defendant clearly manifested assent by laughing, slapping hands with declarant, and nodding); Fuson v. Jago, 773 F.2d 55, 61 (6th Cir. 1985), cert. denied, 478 U.S. 1020 (1986); as to privilege, see generally Davis v. Israel, 453 F. Supp. 1316 (E.D. Wis. 1978), aff'd, 601 F.2d 594 (7th Cir. 1979) (under circumstances, donning pants worn the previous night was an incriminating tacit admission, and inadmissible because after arrest and before Miranda warnings; habeas granted); Doyle v. Ohio, 426 U.S. 610 (1976); United States v. Diaz, 936 F.2d 786 (5th Cir. 1991) (reversing conviction because error to admit supposed tacit admission after defendant had been given Miranda warning).

See also generally THE SHELLOW COLLECTION: Defendant (Character, Mental Condition, Plea, Priors, Statements, etc.)

See also THE SHELLOW COLLECTION: Defendant's Statements.

See generally NCJIC 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].

See NCJIC 305.1.8 [Adoptive Admissions].

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

2.    Consciousness Of Guilt: Threatening To Harm Witness

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

See also generally THE SHELLOW COLLECTION: Defendant (Character, Mental Condition, Plea, Priors, Statements, etc.)

See also THE SHELLOW COLLECTION: Defendant's Statements.

See generally NCJIC Chapter 34: [Consciousness Of Guilt].

See NCJIC 34.8.1 [Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction].

See NCJIC 77.13 [Witness Intimidation].

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

3.    Fabrication Or Suppression Of Evidence: Not Sufficient To Establish Guilt; Suppression Of Evidence By Prosecution

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

    An effort to suppress or fabricate evidence by the defendant after a crime is committed is not sufficient to establish guilt. The question is whether there was guilt independent of the alleged suppression. It's a question for you to determine, if there is any evidence of such suppression of evidence in this case, whether or not those attempts at fabrication or suppression of evidence show consciousness of guilt. The significance of that, if you find the crime has been committed, is a matter for the jury to determine. This is the other side of the coin about the suppression of evidence by the prosecution because the inferences, whichever way that happened, are essentially the same, consciousness on the part of the person acting as to the strength or weakness or legality or illegality of his own position. Again, it's a collateral matter but it's something that you're entitled to consider if you found it happened.

United States v. Oliver, No. C-CR-78-59 (W.D.N.C. 1979).

See also generally THE SHELLOW COLLECTION: Defendant (Character, Mental Condition, Plea, Priors, Statements, etc.)

See also THE SHELLOW COLLECTION: Defendant's Statements.

See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.

See generally NCJIC Chapter 34: [Consciousness Of Guilt].

See NCJIC 34.5 [Suppression Or Fabrication Of Evidence].

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

4.    No Inference Of Guilt From Flight

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

Miller v. United States, 320 F.2d 767, 773 (D.C. Cir. 1963).

State v. Rucker, G-4705 (Circuit Court, Milwaukee County).

See also generally THE SHELLOW COLLECTION: Defendant (Character, Mental Condition, Plea, Priors, Statements, etc.)

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 34: Consciousness Of Guilt.

See NCJIC 34.3 [Flight].

See NCJIC 305.6.6 [Flight].