THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Hearsay And Extra Judicial Statements
1. Incriminating
Hearsay: Cautionary Instruction
2. Unattributed Hearsay
Not Considered
3. Hearsay: State Of Mind
4. Credibility Of Hearsay
Declarants
5. Hearsay Regarding
Uncharged Conspiracies
6. Hearsay: Effect Of
Felon Status On Credibility
7. Hearsay: Two
Credibility Determinations
8. Hearsay Must Be Heard
And Understood
9. Unidentified Hearsay
Declarants
10. Prior Consistent Statements
11. Understandings Based On Hearsay
Not Admissible For Truth
12. Hearsay: Weight And Source
Of Knowledge
13. Extra-Judicial Statements
Should Be Carefully Considered Before Relying On Them
14. Extra-judicial Statements
Should Be Weighed With Caution Because Of The
Possibility Of Misrecollection
15. Out-Of-Court Statements:
Factors To Consider
16. Out-Of-Court Statements:
Credibility Of Third Party
17. Out-Of-Court Statements:
Mere Repetition Of A Statement Does Not Imply
Veracity Or Provide Corroboration
18. Unattributed Hearsay Can
Not Be Considered
19. Defendant’s Out Of Court
Statements: Cautionary Instruction
20. Absent Witness:
Declarations Against Interest
21. Jury Not To Speculate About
Transactions/Conversations About Which They
Had Heard No Evidence
22. Evidence: Admission
– Hearsay Statements Of Government Agents Or
Informers May Not Be Considered
23. Prior Statements Not To Be Considered For
Truth of Statement Re: Burden Of Proof
24. Testimony Re: Out-of-court Statement: Weight
25. Previous Testimony In Another Trial Not
Affirmative Evidence Against Defendant
26. Out-Of-Court Statements: Factors To Consider
27. Prior Testimony: Jury Should View With
Caution
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Incriminating Hearsay: Cautionary Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The Court has permitted the jury to hear witnesses testify to what others told them about the activities, statements and roles of the defendants. Merely because the Court has allowed the government to offer this evidence does not mean that you should uncritically accept it.
When any witness testifies that he heard someone make a statement which incriminated a defendant, the jury should consider several factors in weighing this evidence.
First, is the question of the credibility of the witness himself. Did he really hear the statement made; did he remember it accurately; did he testify truthfully to what he had been told.
Second, is the question of the credibility of the person who made the statement to the witness. Did that person, usually referred to as the hearsay declarant, have a reason to lie to the witness or to mislead him; did the declarant have personal knowledge of the facts he recited to the witness; did the declarant have a good memory for what he said that he observed or heard; did the declarant accurately relate what he had observed or heard to the witness.
Each of these factors affect the weight you should give to the testimony of any witness who repeats what others have told him about a defendant.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Acosta, MCR 82-220 (N.D. Fla. 1982).
SAMPLE INSTRUCTION # 2:
When a witness testifies to what someone else told him about a defendant, two questions arise: One, is the witness telling the truth and accurately relating what he was told; and, two, was the person who told the witness these facts being truthful and did he have a basis for knowing these facts.
SAMPLE INSTRUCTION # 3:
When a witness testifies to what he heard about a defendant from someone else, his testimony should be received with caution because the jury must weigh the credibility of both the witness on the stand and of the person whose statement he supposedly heard.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27 Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Unattributed Hearsay Not Considered
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If a witness testified to what he or she was told by ___________, but cannot identify the person who made the statement, the jury may not consider the statement as evidence against ___________.
AUTHORITIES:
Belton v. Washington Metro. Area Transit Authority, 20 F.3d 1197, 1201-1202 (D.C. Cir. 1994).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Hearsay: State Of Mind
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I wish to remind you once again that during the trial, some statements made by people who were not in court were admitted even though there was an objection that these statements were hearsay. The reason I admitted those statements then was because the statements were not offered for their truth but instead to show the effect that these statements had upon the state of mind of the person hearing such statements. This is what the lawyers and I meant during the trial when we stated on various occasions that certain statements were not offered for their truth but only for "state of mind."
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Credibility Of Hearsay Declarants
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Some witnesses have testified to what other people, not the defendants, said to them. Although I have permitted you to hear this testimony, you should apply the same process in weighing the truthfulness of the people who made these out-of-court hearsay statements as you do to the testimony of the people who took the witness stand here.
AUTHORITIES:
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Greene, Criminal No. 92-32 (S.D. Iowa 1992)
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 27.2 [Miscellaneous Witness Credibility Factors].
See also NCJIC 27.7 [Miscellaneous Credibility Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Hearsay Regarding Uncharged Conspiracies
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If you find that a defendant was a member of a conspiracy which is not charged in the indictment, the hearsay, out-of-court statements of an alleged co-conspirator made in furtherance of that uncharged conspiracy, may not be considered by you as evidence of defendant's involvement in [one of] the conspiracy [conspiracies] charged.
AUTHORITIES:
United States v. Papia, 560 F.2d 827, 838 (7th Cir. 1977).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Willie Williams, Case No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 2:
Out-of-court statements by persons who are found by the jury to have been members of a conspiracy are only admissible against another person found by the jury to be a member of the same conspiracy, if the statements were in furtherance of the conspiracy. Statements which were merely narrative of past events and not made for the purpose of encouraging future participation or involvement of conspirators are not in furtherance of a conspiracy and are admissible only against the speaker.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982).
RELATED NCJIC MATERIALS:
See NCJIC 83.3.6.2 [Conspiracy: Membership In Uncharged Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Hearsay: Effect Of Felon Status On Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The testimony of a person who has been convicted of a felony may be less believable than the testimony of one who has never been convicted and, accordingly, you may take the fact of such a conviction into consideration in weighing the testimony of such witnesses. This same principle may be applied to hearsay witnesses. That is, if a witness on the stand repeats before you what was said to him by a convicted felon, you may take the conviction of the hearsay witness into account when you weigh that hearsay testimony.
AUTHORITIES:
SAMPLE INSTRUCTION # 2:
You have received evidence of the prior criminal conviction[s] of _____________, although [he] [she] [they] did not testify. You may consider those prior conviction[s] only for their effect, if any, on the credibility of statements made by that witness [those witnesses].
AUTHORITIES:
RELATED NCJIC MATERIALS:
See NCJIC 27.4 [Impeachment Of Witness (Nondefendant) By Prior Conviction: Limiting Instruction].
See also NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Hearsay: Two Credibility Determinations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a witness testifies on the stand to what he was told by someone else, you should make two credibility determinations. The first concerns the witness on the stand. Did he hear what he claims that he heard; did he accurately remember what he heard; and finally, did he truthfully testify to what he remembered. The second concerns the credibility of the hearsay witness. How did he know what he told the witness on the stand; did he know it of his own knowledge or was he merely repeating to the witness what he had heard from others as gossip or rumor; and was he being truthful to the witness at the time.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 27.2 [Miscellaneous Witness Credibility Factors].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Hearsay Must Be Heard And Understood
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Statements made out of court by someone other than the defendant are hearsay and cannot be considered by the jury for their truth. Such statements may be considered by the jury for the sole purpose of determining whether the defendant was on notice as to the content of the statement, but in such an instance it must be proven that the defendant heard and understood the statement.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Unidentified Hearsay Declarants
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I have previously instructed you that under certain circumstances that statements of another may be attributed to the defendant. [This arises, however, only when the hearsay declarant is identified. That is,] If a witness testifies that someone told him something, and is unable to identify who made this statement to him, then the [hearsay] statement is of no value and cannot be considered as evidence against the defendant.
AUTHORITIES:
United States v. Linton, 502 F.Supp. 861 (D.C. Nev. 1980).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982) (bracketed material not included).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Prior Consistent Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
On some occasions the Court has admitted testimony of a witness concerning his own prior consistent statements. This testimony was not admitted for the truth of these prior statements but merely for the fact that they had been made; these prior statements were inadmissible as hearsay if they were offered for their truth.
AUTHORITIES:
United States v. Check, 582 F.2d 668, 677 (2d Cir. 1978).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); United States v. Curley, Case No. 93-CR-86-S (W.D. Wis. 1994); United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998)..
RELATED NCJIC MATERIALS:
See NCJIC 26.4.1 [Prior Consistent Statements: Purpose And Scope Of Instruction].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Understandings Based On Hearsay Not Admissible For Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
During the course of this trial counsel has objected to testimony on the grounds that it was hearsay. Some of these objections were sustained and others were overruled. In some instances a witness was prevented from testifying to a hearsay conversation but was permitted to testify to his understanding based upon that conversation. If you find that the understanding of any witness was based upon the hearsay statements of another then the understanding of that witness is not probative evidence and may not be considered by the jury except insofar as it goes to the state of mind of the person who had the understanding. Ordinarily, the state of mind of a witness is not relevant to a criminal prosecution and should not be considered in deciding whether the prosecution has proven the defendant guilty.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Hearsay: Weight And Source Of Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In weighing the testimony of a witness who recounts what __________ (name of third party) told the witness, the jury may consider the source of the __________’s (name of third party) knowledge.
AUTHORITIES:
Litton Systems, Inc. v. American Tel. & Tel. Co., 700 F.2d 785, 816-17 (2d Cir. 1983), cert. denied, 464 U.S. 1073 (1984).
SAMPLE INSTRUCTION # 2:
The jury has heard many witnesses testify to what others told them. In determining what weight should be given to these out-of-court statements, you may consider whether there was evidence of how the person making the statements knew of the matters (he/she) told the witness.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Extra-Judicial Statements Should Be Carefully Considered Before Relying On Them
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Testimony has also been received that the defendant, (himself/herself), made certain out-of-court statements to agents of ___________ (name of law enforcement agency e.g., the Internal Revenue Service). Such statements are referred to as extra-judicial statements because they are made out of court and without the usual protections of court reporters and independent witnesses. For this reason, extra-judicial statements should be carefully considered before reliance is based upon them.
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: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Extra-judicial Statements Should Be Weighed With Caution Because Of The Possibility Of Misrecollection
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Extra-judicial statements, that is statements made out of court, should always be weighed with caution because of the possibilities of error in trusting the recollection of oral utterances.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, No. 81-CR-106 (E.D. Wis. l982).
SAMPLE INSTRUCTION # 2:
[The jury has heard testimony concerning statements allegedly made by the defendant.] Extra-judicial statements, that is statements made out of court, should always be weighed with caution because of the possibilities of error in trusting the recollection of oral utterances.
AUTHORITIES:
Naples v. United States, 344 F.2d 508, 512 (D.C. Cir. 1964), citing 7 Wigmore Evidence § 2094 at 468 (3d Ed. 1940).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982) (except bracketed material); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Reigh, No. 76-CR-8 (W.D. Wis. 1976); State v. Stevens, No. 87-FE-15 (Manitowoc County, November, 1988).
SAMPLE INSTRUCTION # 2:
The jury has heard testimony concerning statements allegedly made by [the defendant] [persons] [__________ (name of third party)] not made from the witness stand. Such extra-judicial statements should always be weighed with caution because of the possibilities of error in trusting to recollection testimony of oral utterances.
AUTHORITIES:
Naples v. United States, 344 F.2d 508, 512 (D.C. Cir. 1964), citing 7 Wigmore Evidence §2094, at 468 (3d Ed. 1940).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Reigh, No. 76-CR-8 (W.D. Wis. 1976); United States v. Robinson, et al., No. 78-CR-106 (E.D. Wis. 1979); United States v. Bastanipour, 80-CR-248 (N.D. Ill. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Out-Of-Court Statements: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a witness testified to what someone else said, this is called an out-of-court statement. Such statements are admissible under some circumstances, but should be considered with caution. In weighing such statements, you should consider whether the context of the statements and the persons to whom they were made suggest that the statements are reliable, whether the speaker had a motive for lying, whether the speaker had difficulty with his or her memory, and whether the speaker had personal knowledge of the identity and role of the persons about whom he spoke.
AUTHORITY:
United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert. denied, 474 U.S. 980 (1985).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Out-Of-Court Statements: Credibility Of Third Party
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Ordinarily, a witness may testify only to facts which (he/she) knows of (his/her) own knowledge. However, there are exceptions to this rule when a witness may testify to what (he/she) was told about a defendant.
When any witness testifies to what (he/she) was told, two questions arise: (1) Is the witness telling the truth; did (he/she) really hear what (he/she) claims (he/she) heard; (2) Was the person who told (him/her) telling the truth; did (he/she) really know as a fact that which (he/she) told the witness.
Evidence of what someone else told a witness about a defendant should be received with caution and weighed by considering not only the credibility of the witness, but also the credibility of (his/her) informant.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Out-Of-Court Statements: Mere Repetition Of A Statement Does Not Imply Veracity Or Provide Corroboration
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A previous out-of-court statement by a witness which is consistent with (his/her) testimony at trial is not corroborative of the trial testimony because mere repetition of a statement does not imply veracity.
AUTHORITIES:
Coltrane v. United States, 418 F.2d 1131, 1140 (D.C. Cir. 1969).
SAMPLE INSTRUCTION # 2:
A previous out-of-court statement by a witness which is consistent with his testimony at trial does not corroborate the trial testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Unattributed Hearsay Can Not Be Considered
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I have previously instructed you that under certain circumstances that statements of another may be attributed to the defendant. [This arises, however, only when the hearsay declarant is identified. That is,] If a witness testifies that someone told (him/her) something, and is unable to identify who made this statement to (him/her), then the [hearsay] statement is of no value and cannot be considered as evidence against the defendant.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982) (bracketed material not included).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27:Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Defendant’s Out Of Court Statements: Cautionary Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence has been received concerning a statement said to have been made by the defendant. It is for you to determine whether the defendant did in fact make the statement. If you find that he did, then you must determine what weight, if any, you think the statement deserves. In determining what weight, if any, should be given the statement, you should consider all matters in evidence having to do with the statement, including those concerning the defendant's personal characteristics, the conditions under which the statement was made, and the personal characteristics of the person who said that the defendant made the statement.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Curley, No. 93-CR-86-S (W.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Absent Witness: Declarations Against Interest
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Because __________ (name of witness) was not available to testify at this trial, I permitted evidence of statements that (he/she) made to the police which were against (his/her) own interests. Courts allow evidence of such statements because of an assumption about human behavior, which is that people do not make statements damaging their own interests or subjecting themselves to punishment unless those statements are true. Therefore, you may consider the statements of __________ (name of witness) as if (he/she) had testified here, and just as any other evidence. However, you alone will decide whether those statements in fact were true, or how much weight to give them, if any.
AUTHORITIES:
FRE 804(b)(3); Wigmore on Evidence § 1457, at 262-63 (3d ed. 1940).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 305.23.3 [Witness Credibility].
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
See generally NCJIC 36.2 [Missing Witness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Jury Not To Speculate About Transactions/Conversations About Which They Had Heard No Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You may not speculate upon transactions about which you have heard no evidence, nor may you speculate as to the contents of conversations about which you have heard no evidence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses.
RELATED NCJIC MATERIALS:
See NCJIC 28.1 [Defendant's Out Of Court Statements: Jury Should Consider Accuracy Of Statements].
See also NCJIC 28.13 [Defendant's Out Of Court Statement: Federal Circuit Model Instructions And Notes].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Evidence: Admission – Hearsay Statements Of Government Agents Or Informers May Not Be Considered
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Several witnesses have testified as to what they were told by ____________ (name of government informant). You have also heard a tape recording of conversations between ____________ (name of third party) and ____________ (name of government informant) and ____________ (name of third party) and ____________ (name of government informant).
____________ (name of informant) at the times of these statements was a government informant. Accordingly, none of the statements attributed to ____________ (name of government informant), even if he made them, may be considered by you for their truth. The statements made by ____________ (name of government informant) are not evidence against these defendants and may not be weighed by you in making your determination whether the government has proven either of these charges beyond a reasonable doubt.
SAMPLE INSTRUCTION # 2:
If you conclude on the basis of all the evidence you have heard that on ______________ (date) at __________________ (location) ____________ (name of third party) was secretly working with ____________ (name of government informant) and had been told by ____________ (name of government informant) that the operation was a government sting, then statements made by ____________ (name of third party) to _________________(list others) and ____________ (name of government informant) may not be considered for their truth, nor may they be considered by you in determining whether the government has met its burden of proof.
SAMPLE INSTRUCTION # 3:
During all of the events involved in the operation which forms the basis of these prosecutions, _____________ (name of agent/informer) and _____________ (name of agent/informer) were acting on behalf of the government.
For this reason, none of the statements made by either _____________ (name of agent/informer) or _____________ (name of agent/informer) may be considered by you for their truth nor may they be considered as evidence against either _____________ (name of accused) or _____________ (name of accused).
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965).
SAMPLE INSTRUCTION # 4:
There was testimony concerning what __________ (name of informant) said to __________ (name of third party) . At the time of this conversation, __________ (name of informant) was working as an informer and, accordingly, his statements cannot be considered for their truth and are not evidence against __________ (name of defendant).
Similarly, a telephone conversation between __________ (name of third party) and __________ (name of defendant) was recorded on _________ (date) in which __________ (name of third party) __________ (name of third party) during this telephone call cannot be considered for their truth and are not evidence against __________ (name of defendant).
RELATED NCJIC MATERIALS:
See NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See NCJIC 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Prior Statements Not To Be Considered For Truth of Statement Re: Burden Of Proof
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of witness) testified to statements he had made on __________ (date) to __________ (name of defendant). None of this testimony may be considered by you for its truth. That is, when any witness testifies that he or she said something on a prior occasion, the jury may not consider the truth of those prior statements in determining whether the government has met its burden of proof.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. Testimony Re: Out-Of-Court Statement: Weight
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The testimony of __________ (name of witness # 1) concerning __________’s (name of witness # 2) statements to (him/her) may be considered, and given the same weight if you choose, as if __________ (name of witness # 2) had made these same statements here under oath. The only additional consideration necessary is whether __________ (name of witness # 1) recalled such statements accurately and recounted them faithfully.
AUTHORITY:
Wis. Stat. §908.01(4)(a); Gelhaar v. State, 41 Wis. 2d 230, 163 N.W.2d 609 (1969), cert. denied, 399 U.S. 929 (1970).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
25. Previous Testimony In Another Trial Not Affirmative Evidence Against Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Previous testimony of a witness upon a different trial is not affirmative evidence against the defendant.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
See also NCJIC 24.2.7.1 [Transcript Testimony From Previous Trial, Preliminary Hearing, Deposition, Etc.].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
26. Out-Of-Court Statements: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a person testifies to what another person told (him/her) there are two factors you must weigh. The first is the credibility of the person on the stand. Is (he/she) biased for or against the government or the defendants, and is (his/her) recollection strong or weak? Second, you should consider the credibility of the person who made the underlying statement, and whether that person was biased or had a motive to make an untrue statement.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
27. Prior Testimony: Jury Should View With Caution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard __________’s (name of witness) testimony from a preliminary hearing in this case. Although __________’s (name of defendant) prior attorney briefly cross-examined __________ (name of witness) at that hearing, you should consider that his attorney did not have as full an opportunity to cross-examine __________ (name of witness) as an attorney would at trial because the purposes of a preliminary hearing in _________ (state) are limited. For example, a defendant's lawyer may not examine witnesses about issues that relate solely to the witnesses' credibility at a preliminary hearing.
Cross-examination has been referred to as the greatest legal engine ever invented for the discovery of truth. In addition, you jurors have not had the opportunity to observe __________ (name of witness) as (he/she) testifies. Accordingly, you cannot consider many important factors which affect the weight you should give to a witness's testimony such as the witness's conduct, appearance, intelligence and demeanor. Because __________;s (name of defendant) lawyer did not have an opportunity to cross-examine __________ (name of witness) at this trial and you jurors could not observe (him/her) testify, you must consider __________’s (name of witness) testimony with caution.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].
See also NCJIC 24.2.7.1 [Transcript Testimony From Previous Trial, Preliminary Hearing, Deposition, Etc.].