THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Evidence Generally
1.
Evidence Defined
2. Evidence: What Jury May
And May Not Consider
3. Jury Must Adopt
Reasonable Interpretation Of The Evidence Consistent With Innocence
4. Guilt Is Not to Be
Inferred Merely Because Facts Proved Are Consistent With Guilt
5. Evidence Of An Element
Of Crime Equally Consistent With Guilt Or Innocence
6. What Is Not Evidence:
Jury Not To Consider Extrinsic Evidence
7. Inferences From
Inferences
8. Inferences On
Inferences Improper
9. Prosecution Cannot Rely
On Inference After Presenting Evidence Contrary To It
10. Prosecution’s Use Of Inference
To Establish An Element Of The Crime
11. Inference Cannot Be Based Upon
Evidence Which Is Uncertain, Speculative
Or Which Raises Mere Conjecture Or
Possibility
12. No Fact May Be Determined By
Judge; All Facts Necessary Must Be Proven
By The Evidence
13. Jury May Only Consider Evidence
Introduced Or Lack of Evidence
14. Speculation And Intuition Cannot
Be Substituted For Proof
15. If Evidence Is Not Rebutted By
The Prosecution Jury May Infer That It Is
Not Rebuttable
16. Weighing Strength Of Prosecution’s
Case: Factors To Consider
17. Burden Of Proof
18. Jury Not Satisfied Or Convinced
Of Guilt Must Find Defendant Not Guilty
19. Improperly Admitted Testimony
Stricken; Jury To Disregard
20. Direct And Circumstantial
Evidence
21. Suspicion Not Proof
22. Jury May Consider Lack Of
Physical Evidence
23. Weight Of Evidence Not To Be
Decided By Number Of Witnesses
24. Failure To Present Evidence Which
Had Been Asserted Would Be Presented
25. Evidence Presented To Grand Jury:
Prosecution Has No Obligation To Present
Exculpatory Evidence
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Evidence Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence is:
First, the sworn testimony of witnesses, both on direct and cross-examination, regardless of who called the witness.
Second, the exhibits the court has received into the trial record.
Third, any facts to which the lawyers have agreed or stipulated or which the court has directed you to find.
Anything you may have seen or heard outside the courtroom is not evidence. You are to decide the case solely on the evidence offered and received at trial.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 24: What Is And What Isn’t Evidence.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Evidence: What Jury May And May Not Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are the judges of evidence with certain principles of law. You are to consider only the evidence which you heard and which was offered to you in exhibit form and which I admitted. You are not to consider any excluded evidence, whether I struck it or whether I did not admit it. You are not to treat as evidence a question which was put by counsel unless that question produced a response which incorporated the question.
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D. N.H. 1967).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 24: What Is And What Isn’t Evidence.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Jury Must Adopt Reasonable Interpretation Of The Evidence Consistent With Innocence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that if the evidence which you have heard is susceptible of two interpretations, each of which appears to be reasonable, and only one of which points to the guilt of the defendant, it is your duty to adopt the interpretation which will admit the defendant's innocence and reject that which points to his guilt.
AUTHORITIES:
United States v. Zumpano, 436 F.2d 535, 538 (9th Cir. 1970).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Balistrieri, Case No. 81-CR-152 (E.D. Wis. 1983); United States v. Ehrlich, No. 85-CR-77 (E.D. Wis. 1985) United States v. Machi, No. 85-CR-114 (1986); State v. Gandhi, No. 89-CF-281 (Racine County, Wisconsin 1990).
SAMPLE INSTRUCTION # 2:
You are instructed that if the evidence which you have heard is subject to two interpretations, each of which appears reasonable, and only one of which points to the guilt of the accused, it is your duty to adopt the interpretation which will admit an accused's lack of guilt, and to find him or her not guilty.
AUTHORITIES:
United States v. Zumpano, 436 F.2d 535, 538 (9th Cir. 1970).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Balistrieri, No. 81-CR-152 (E.D. Wis. 1983); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976).
SAMPLE INSTRUCTION # 3:
If two inferences can reasonably be drawn from the evidence, one of the defendant's guilt, and the other of the defendant's innocence, then you must adopt the inference of the defendant's innocence.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Cox, No. G-8113 (Circuit Court, Milwaukee County).
SAMPLE INSTRUCTION # 4:
If two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, the jury should adopt the one of innocence.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Hestnes, No. 77-CR-23 (W.D. Wis. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 24: What Is And What Isn’t Evidence.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See NCJIC 25.12.3 [Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant].
See also NCJIC 25.12.4 [Equally Reasonable Inferences Must Be Resolved In Favor Of Defendant: Applicability To Direct Evidence].
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Guilt Is Not to Be Inferred Merely Because Facts Proved Are Consistent With Guilt
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The guilt of an accused is not to be inferred merely because the facts proved are consistent with (her/her) guilt. On the contrary, before there can be a verdict of guilty, you must believe from all the evidence, and beyond a reasonable doubt, that the facts proven are inconsistent with any reasonable hypothesis of innocence. If two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, you must adopt the conclusion of innocence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Evidence Of An Element Of Crime Equally Consistent With Guilt Or Innocence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If the evidence as to an element of a crime is equally consistent with __________’s (name of defendant) theory of innocence as with the government's theory of guilt, that evidence necessarily fails to establish guilt beyond a reasonable doubt.
AUTHORITIES:
United States v. Harris, 942 F.2d 1125, 1129 (7th Cir. 1991); United States v. Delay, 440 F.2d 566, 568 (7th Cir. 1971).
SAMPLE INSTRUCTION # 2:
Where the evidence as to an element of a crime is equally consistent with a theory of innocence as a theory of guilt, that evidence necessarily fails to establish guilt beyond a reasonable doubt.
AUTHORITIES:
United States v. Harris, 942 F.2d 1125, 1129 (7th Cir. 1991); United States v. Delay, 440 F.2d 566, 568 (7th Cir. 1971).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. What Is Not Evidence: Jury Not To Consider Extrinsic Evidence
See THE SHELLOW COLLECTION: Duty Of Jury – Jury Not To Consider Extrinsic Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Inferences From Inferences
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Inferences may be drawn only from the facts which have been proven beyond a reasonable doubt. Inferences may not be based upon other inferences. If in order to prove an element of its case, the [state] [government] requires that you base one inference upon another inference, then a defendant may not be found guilty.
AUTHORITY:
United States v. Ross, 92 U.S. 281 (1876).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979) [modified]; United States v. Vlasak, No. 75-184 (D.P.R. 1976); State v. Purdy, No. F-932187 (Milwaukee County, Wisconsin, 1994); People v. Nechy, No. 85-4627-FH (Delta County, Michigan Circuit Court, 1985).
SAMPLE INSTRUCTION # 2:
Inferences may be drawn from facts which have been proven beyond a reasonable doubt. Inferences may not be drawn from other inferences, unless such pyramiding of inferences creates in your mind a reasonable doubt of the facts sought to be proven. If, in order to convict a defendant, it is necessary for you to pile one inference upon another inference and thereby to arrive at a conclusion which creates in your mind a reasonable doubt of one of the elements of this offense, then you may not convict the defendant and must acquit (him/her).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Cox, No. G-8113 (Circuit Court, Milwaukee County).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Inferences On Inferences Improper
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is not proper for you to pile inference on inference. You may draw an inference only from an underlying fact that was proven at trial by evidence establishing that fact beyond a reasonably doubt, and then only if the fact inferred more likely than not follows from the proven fact.
AUTHORITIES:
United States v. Ross, 92 U.S. 281, 283-84 (1876); Anderson v. United States, 417 U.S. 211, 224 (1974); Leary v. United States, 395 U.S. 6, 36 (1969); Rose v. Clark, 478 U.S. 570, 580 (1986).
SAMPLE INSTRUCTION # 2:
While the jury may draw inferences from facts which have been proven, a conviction may not be had if the jury must draw one inference upon another inference.
AUTHORITIES:
United States v. Harris, 942 F.2d 1125, 1128 (7th Cir. 1991); United States v. Balzano, 916 F.2d 1273, 1284 (7th Cir. 1990).
SAMPLE INSTRUCTION # 3:
Inferences may only be drawn from such facts as are proven beyond a reasonable doubt in a case. Inferences may not be drawn from other inferences.
AUTHORITIES:
United States v. Sheikh, 654 F.2d 1057, 1063 (5th Cir. 1981), cert. denied, 455 U.S. 991 (1982); United States v. Ross, 92 U.S. 281, 283-84 (1876).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, Case No. 75-CR-83 (E.D. Wis. 1975); United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981); United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976); United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975); State v. Dronso, No. H-9460 (Circuit Court, Milwaukee County, January, 1975); State v. Mayberry, No. H-2641 (Circuit Court, Milwaukee County); State v. Rucker, No. G-4705 (Circuit Court, Milwaukee County); State v. Loveday, No. H-7717 (Circuit Court, Milwaukee County); State v. Schaffer, No. I-4977 (Circuit Court, Milwaukee County).
SAMPLE INSTRUCTION # 4:
It is not proper for you to pile inference on inference. You may draw an inference only from an underlying fact that was proven at trial by evidence establishing that fact beyond a reasonable doubt. And you may do so only if it is more likely than not that the fact inferred follows from the proven fact.
AUTHORITIES:
Pereira v. United States, 347 U.S. 1, 15 (1954); Anderson v. United States, 417 U.S. 211, 224 (1974); Leary v. United States, 395 U.S. 6, 36 (1969); United States v. Ross, 92 U.S. 281, 283-84 (1876); Rose v. Clark, 478 U.S. 570, 580 (1986) United States v. Hirschberg, 988 F.2d 1509, 1518 (7th Cir. 1993), (Cudahy, J., concurring in part, dissenting in part); cf. United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 1625 (1995).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Prosecution Cannot Rely On Inference After Presenting Evidence Contrary To It
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government cannot rely on an inference when it presents to you evidence contrary to that inference, and does nothing to relieve itself of the effect flowing from that evidence.
AUTHORITY:
Rodgers v. United States, 402 F.2d 830 (9th Cir. 1968).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Prosecution’s Use Of Inference To Establish An Element Of The Crime
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Where an inference is relied on by the state to establish an element of crime, and that inference is the only evidence tending to prove an essential element of the crime, the inference cannot be drawn unless it can be said, beyond a reasonable doubt, that the presumed fact flowed from the proved fact on which it is made to depend.
AUTHORITIES:
See United States v. Tavoularis, 545 F.2d 1070, 1075 n. 11 (2d Cir. 1975), and discussion therein concluding that the issue is undecided by the United States Supreme Court.
SAMPLE INSTRUCTION # 2:
The jury may rely on inferences to establish elements of a crime only when it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. When the government relies upon an inference to establish an element of a crime, the presumed fact, that is, the one which has been inferred from the proven fact, must be inferred or presumed beyond a reasonable doubt.
AUTHORITIES:
United States v. Tavoularis, 545 F.2d 1070, 1075 n.10 (2d Cir. 1975), citing, Leary v. United States, 395 U.S. 6, 36 (1969) and In re Winship, 397 U.S. 358 (1970), and Barnes v. United States, 412 U.S. 837, 841-46 (1973), which does not decide the Winship issue as it applies to inferences.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Inference Cannot Be Based Upon Evidence Which Is Uncertain, Speculative Or Which Raises Mere Conjecture Or Possibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
What is meant by the statement that an inference cannot be based upon an inference is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Mayberry, No. H-2641 (Circuit Court, Milwaukee County); State v. Rucker, No. G-4705 (Circuit Court, Milwaukee County).
RELATED SHELLOW MATERIALS:
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. No Fact May Be Determined By Judge; All Facts Necessary Must Be Proven By The Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
No fact, not even an undisputed fact, may be determined by the Judge. All facts necessary to the [state's] [government’s] case must be proven by evidence which was admitted and not stricken.
AUTHORITIES:
United States v. England, 347 F.2d 425, 431 (7th Cir. 1965).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Jury May Only Consider Evidence Introduced Or Lack of Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You may consider only the evidence introduced or lack of evidence.
AUTHORITIES:
United States v. Garcia, 562 F.2d 411 (7th Cir. 1977); Brandom v. United States, 431 F.2d 1931 (7th Cir.), cert. denied, 400 U.S. 1022 (1971); United States v. Mackay, 491 F.2d 616 (10th Cir. 1973), cert. denied, 416 U.S. 972 (1974); United States v. Strauss, 678 F.2d 886 (11th Cir. 1982).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987) (modified).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Speculation And Intuition Cannot Be Substituted For Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Speculation and intuition cannot be substituted for proof.
AUTHORITIES:
United States v. Pechenik, 236 F.2d 844 (3d Cir. 1956).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. If Evidence Is Not Rebutted By The Prosecution Jury May Infer That It Is Not Rebuttable
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In a criminal prosecution, the state, after the close of the defendant's case, is given an opportunity to offer rebuttal evidence to contradict any new matters which were brought up by the defendant.
To the extent that such evidence is not rebutted by the state, the jury may infer that it is not rebuttable.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See also NCJIC 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Weighing Strength Of Prosecution’s Case: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In weighing the strength of the government's case, you may consider not only the evidence which the government adduced, but also evidence that you would have expected the government to adduce as a matter of common sense and logic.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Burden Of Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining the guilt or innocence of the defendant, you should scrutinize the evidence with the utmost care and caution. You should act with all the judgment, reason, prudence, and discrimination you possess. The burden of proving the defendant guilty of every element of the offense charged is upon the County of __________. Such burden is to satisfy or convince you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that the defendant is guilty as charged in the complaint.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
City of LaCrosse v. Benson, No. 79-SC-60 (Circuit Court, LaCrosse County, Br. 3).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See generally NCJIC Chapter 270: Burdens And Standards Of Proof.
See NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Jury Not Satisfied Or Convinced Of Guilt Must Find Defendant Not Guilty
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If after a fair consideration of all the evidence bearing on the question, you become so satisfied or convinced that the defendant is guilty, then you should find (him/her) guilty, but if not so satisfied or convinced, you must find the defendant not guilty.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
City of LaCrosse v. Benson, No. 79-SC-60 (Circuit Court, LaCrosse County, Br. 3).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Improperly Admitted Testimony Stricken; Jury To Disregard
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The Court admitted testimony from __________ (name of law enforcement officer) concerning __________’s (name of defendant) purported statements to the officer on __________ (date). That testimony should not have been admitted. I am now striking that testimony, and you are directed to disregard entirely any statements that __________ (name of defendant) may have made that day.
AUTHORITIES:
United States v. Williams, 504 U.S. 36, 46-47 (1992); United States v. Elliott, 849 F.2d 554, 557 (11th Cir. 1988); United States v. DiGilio, 538 F.2d 972, 985 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977); United States v. Standard Oil Co., 316 F.2d 884, 897 (7th Cir. 1963); Holderman, Preindictment Prosecutorial Conduct in the Federal System, 71 J. Crim. L. & Criminology 1, 7 & nn.58-61 (1980).
SAMPLE INSTRUCTION # 2:
During the trial, the court has ordered certain testimony to be stricken. Disregard all stricken testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See NCJIC 24.3.3 [What Is Not Evidence: Excluded, Stricken Or Withdrawn Matters].
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Direct And Circumstantial Evidence
See THE SHELLOW COLLECTION: Evidence: Circumstantial Evidence – Generally.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Suspicion Not Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A suspicion, no matter how strong, is not proof, and will not serve in lieu of proof.
AUTHORITY:
Evans v. United States, 257 F.2d 121 (9th Cir.), cert. denied, 79 S. Ct. 98 (1958).
SAMPLE INSTRUCTION # 2:
If the testimony in this case, when reasonably and fairly construed, creates no more than a suspicion that the defendant committed the crime charged, (he/she) must be acquitted.
AUTHORITIES:
Bruno v. State, 171 Wis. 490, 497 (1920); State v. Davis, No. 2-163312 (County Court, Milwaukee County).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Jury May Consider Lack Of Physical Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where a crime is of such a type that physical evidence is normally possessed by those who commit it, a search which fails to uncover such physical evidence may be considered by you in determining whether the person searched is guilty of the offense.
AUTHORITIES:
United States v. Van Fossen, 460 F.2d 38, 41 (4th Cir. 1971).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See NCJIC 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Weight Of Evidence Not To Be Decided By Number Of Witnesses
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The weight of evidence is not to be decided merely according to the number of witnesses on each side. You may find that the testimony of one witness is entitled to greater weight than that of another witness, or even of several other witnesses, and you may give it such weight in considering your verdict.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
See also THE SHELLOW COLLECTION: Evidence: Witnesses Generally – Single Witness.
RELATED NCJIC MATERIALS:
RELATED NCJIC MATERIALS:
See NCJIC 16.3.3 [Jury Not To Be Influenced By The Relative Number Of Witnesses: Cautionary Instruction].
See NCJIC 16.3.4 ["Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses].
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. Failure To Present Evidence Which Had Been Asserted Would Be Presented
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You will recall that during their opening statements, the parties made certain representations to you concerning what evidence they would adduce and how that evidence would support their version of the case. If you find that a party to this case has failed to present evidence which it asserted it would present, you may consider that as a sign of the weakness of that party's position and may give it such weight as you feel it deserves.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 36.2.2.4 [General Instruction That No Inference Should Be Drawn From Failure To Present Evidence].
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See NCJIC 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].
See NCJIC 272.4.4 [Prosecutor Misconduct Summation/Closing Argument: Reference To Facts That Are Never Proven].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
25. Evidence Presented To Grand Jury: Prosecution Has No Obligation To Present Exculpatory Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In presenting evidence to a grand jury a prosecutor has no obligation to offer evidence in his or her possession which shows or to tends to show that an accused is innocent. That is, a grand jury sits only to hear the prosecution's evidence.
AUTHORITY:
United States v. Williams (1992) 504 U.S. 36 [112 S. Ct. 1735; 118 L. Ed. 2d 352].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Volume 4: Evidence--Issues And Instructions.
See generally NCJIC Chapter 25: Cautionary And Explanatory Instructions Regarding The Evidence.
See NCJIC 11.1.2 [Grand Jury Procedure: Duty Of Prosecutor To Present Exculpatory Evidence].
See generally NCJIC 11.2 [Grand Jury Instructions].