THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Evidence: Failure To Prove Case

    1.    Defendant May Rely On Prosecution’s Failure To Prove Case
    2.    Jury Not To Consider Opening Statements Not Proved At Trial

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

1.    Defendant May Rely On Prosecution’s Failure To Prove Case

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

    It is the defendant's theory of the case respecting all the counts that the government has failed to meet its burden of proof by introducing credible evidence on every element of each offense charged in the separate counts of the indictment, as this indictment is drafted, to prove the defendant guilty.

    The defendant is constitutionally entitled to rely upon the government's failure of proof, and never can or should be required to produce evidence of (his/her) innocence. The defendant is entitled, as well, to rely upon the government's failure to prove the exact charges in the indictment. You cannot convict the defendant for any offenses you may believe the evidence has shown, if they are not charged in the indictment. If you find that the government failed to meet its burden, you must find the defendant not guilty regardless of your feelings about the defendant or this rule of law.

United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985).

See also THE SHELLOW COLLECTION: Evidence – Arguments, Questions And Statements Of Counsel.

See NCJIC 250.4 [Defenses And Defense Theories: Burden Of Proof On Prosecution].

See NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].

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

2.    Jury Not To Consider Opening Statements Not Proved At Trial

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

    During its opening statement, the state made representations concerning what it would prove during this trial, including representations regarding __________ (name of defendant) . Some of these representations by the state were not proven at trial. You must not consider any of the statements made by the state in its opening that were not proved by admissible evidence.

    It is improper for a party to make material representations in opening statements of facts that cannot be proved during trial. If you find that the state made material misrepresentations in its opening statement concerning what facts it would prove, you may consider the state's misconduct as affirmative evidence of the weakness of its case.

See also THE SHELLOW COLLECTION: Evidence – Arguments, Questions And Statements Of Counsel.

See NCJIC 250.4 [Defenses And Defense Theories: Burden Of Proof On Prosecution].

See NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].

See NCJIC 272.4.4 [Prosecutor Misconduct Summation/Closing Argument: Reference To Facts That Are Never Proven].