THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Missing/Lost/Destroyed Evidence
1. Intentional
Destruction Of Evidence: Inference
2. Intentional Destruction
Of Evidence Is In The Nature Of An Admission Of Guilt
3. Intentional Destruction
Of Evidence: Indication Of Weakness Of Case
4. Evidence: Spoilation
5. Evidence: Lost Or
Destroyed
6. Evidence: Destruction
Or Failure To Produce
7. Destroyed Or Missing
Investigative Notes: Inference
8. Failure To Play
Recordings: Inferences
9. Unrecorded Witness
Statements Should Be Viewed With Distrust
10. Destruction Of Potential
Exculpatory Evidence: Inferences
11. Investigative Report Omissions
12. Loss Of Law Enforcement Officer
Notes
13. Intentional Destruction Of Report
Affecting Credibility
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Intentional Destruction Of Evidence: Inference
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The intentional destruction of evidence by a witness permits the inference that the destroyed evidence would not corroborate the testimony of the witness concerning the destroyed evidence.
SAMPLE INSTRUCTION # 2:
The intentional destruction of evidence may permit an inference that, if the evidence had been preserved, it would have been unfavorable to those who destroyed it.
SAMPLE INSTRUCTION # 3:
It is a general rule that the intentional destruction of evidence relevant to a case raises an inference that this evidence would have been unfavorable to the cause of the spoilator. Such a presumption or inference arises, however, only where the spoilation or destruction was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.
AUTHORITIES:
Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810, 821 (1973); United States v. Augello, 451 F.2d 1167, 1170 n.6 (2d Cir. 1971); United States v. Augello, 451 F.2d 1167, 1170 n. 6 (2d Cir. 1971); United States v. Remington, 191 F.2d 246, 251 (2d Cir. 1951); State ex rel. Department of Agriculture v. McCarthy, 238 Wis. 258, 271, 299 N.W. 58 (1941); United States v. Graham, 102 F.2d 436, 442-443 (2d Cir. 1939); Dimond v. Henderson, 47 Wis. 172, 174-75, 2 N.W. 73 (1879); 29 Am. Jur.2d Evidence §177 at pp. 220-21. See also, cases cited in Footnote 13, Id.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 4:
If you find that there has been an intentional destruction of evidence relative to this case, then an inference arises that this evidence would have been unfavorable to the position of the spoilator. Such inference arises, however, only where the spoilation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was the matter of routine with no fraudulent intent.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Intentional Destruction Of Evidence Is In The Nature Of An Admission Of Guilt
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The intentional destruction of evidence in a criminal case is in the nature of an admission of guilt by the party who destroys such evidence and, though not conclusive, is to be given consideration as such by the jury. The presumption flowing from the destruction of evidence is always against the wrongdoer.
AUTHORITIES:
United States v. Graham, 102 F.2d 436, 442-443 (2d Cir. 1939).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Cox, H-1065 (Circuit Court, Milwaukee County).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Intentional Destruction Of Evidence: Indication Of Weakness Of Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence that the government, or one of its agents, has intentionally destroyed evidence, is affirmative evidence of the weakness of the government's case.
AUTHORITIES:
United States v. Remington, 191 F.2d 246, 251 (2d Cir. 1951); see also Wigmore, Evidence (3 ed.) § 278.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Evidence: Spoilation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Where one party had exclusive control over physical evidence and deliberately allowed that evidence to deteriorate to the point that facts which might have been learned from that evidence no longer could be learned, you may presume that those facts would have favored the opposing party.
AUTHORITIES:
Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810, 821 (1973); State ex rel. Department of Agriculture v. McCarthy, 238 Wis. 258, 271, 299 N.W. 58 (1941); Dimond v. Henderson, 47 Wis. 172, 174-75, 2 N.W. 73 (1879).
SAMPLE INSTRUCTION # 2:
You have heard testimony concerning certain physical evidence, and those objects also are in evidence. If you find that the party in exclusive control of those physical items deliberately failed to take steps that reasonably could have been taken to preserve the quality of those items, and thereby allowed the items to deteriorate to the point that conclusions no longer could be drawn with certainty from them, you may infer that those conclusions would have favored the other party.
AUTHORITIES:
Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810, 821 (1973); State ex rel. Department of Agriculture v. McCarthy, 238 Wis. 258, 271, 299 N.W. 58 (1941); Dimond v. Henderson, 47 Wis. 172, 174-75, 2 N.W. 73 (1879).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Evidence: Lost Or Destroyed
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where one party had exclusive control over physical evidence and deliberately allowed that evidence to be lost or destroyed such that facts which might have been learned from that evidence no longer could be learned, you may presume that those facts would have favored the party which was not responsible for the loss of the evidence.
AUTHORITIES:
California v. Trombetta, 467 U.S. 479, 489 (1984); United States v. Cooper, 983 F.2d 928, 931-33 (9th Cir. 1993); State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 594 (Wis.App. 1994); Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810, 821 (1973); State ex rel. Department of Agriculture v. McCarthy, 238 Wis. 258, 271, 299 N.W. 58 (1941);Dimond v. Henderson, 47 Wis. 172, 174-75, 2 N.W. 73 (1879).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Evidence: Destruction Or Failure To Produce
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If a party destroys or fails to produce physical evidence within its control, or which it would be more natural for that party to produce, and the party fails to give a satisfactory explanation for the destruction or failure to produce the physical evidence, then you may infer that the evidence would be unfavorable to the party who destroyed or failed to produce it.
AUTHORITIES:
Wis. J.I.– Civil 410 (modified); Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (unfavorable inference may be drawn against party who suppresses or fabricates evidence): State v. Stanislawski, 62 Wis. 2d 730, 216 N.W.2d 8, 16 (1974) (same).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Failure To Call Witness: Inference Of Unfavorability To Case.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Destroyed Or Missing Investigative Notes: Inference
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The law requires that a government witness produce for examination by defense counsel any notes which he may have prepared concerning the subject matter to which he testifies. In the case of certain contacts claimed to have been made between the ___________ (name of law enforcement agency) and __________ (name of witness/third party), there was testimony which might permit you to infer that the notes of these contacts had either been destroyed or were missing. If you conclude that these notes were intentionally destroyed by government agents, not as a matter of routine, but for the deliberate purpose of keeping them from defense counsel at trial, then such evidence is evidence of the weakness of the government's case.
SAMPLE INSTRUCTION # 2:
In weighing the testimony of lawyer ________ (name), you may consider, if you wish, his inability to explain what happened to the notes which he took during his interviews with __________ (name of third party).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Failure To Play Recordings: Inferences
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
During this trial, you have heard evidence that recordings were made of conversations which occurred on telephones. The court has previously held that these conversations were legally recorded by the government and could have been introduced by the government upon this trial. You may draw such inference as you feel to be appropriate from the failure of the government to play any of these recordings for you.
AUTHORITY:
Pattern Criminal Jury Instructions, Report of the Federal Judicial Center Committee to Study Criminal Jury Instructions, Federal Judicial Center, June, 1982; PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 13 [Wiretaps, Consensual Recordings: Propriety of Evidence] (1988).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Unrecorded Witness Statements Should Be Viewed With Distrust
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The law requires that all statements by witnesses to the police be tape recorded. If a statement or a portion of a statement to the police was not recorded, any testimony concerning the unrecorded portion can be viewed with distrust.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Destruction Of Potential Exculpatory Evidence: Inferences
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There is some evidence that an agent of the ___________ (name of law enforcement agency) intentionally destroyed ___________ (evidence, e.g., diaries or daybooks) and that (he/she) was unable to recall any authority for such destruction.
If you conclude that there was anything in [that] [those] ___________ (evidence) which would have disproven the Government's case or helped to disprove it either by contradicting the testimony of the witness who destroyed the ___________ (evidence) or by any other means, then you may infer, if you wish, that such ___________ (evidence) were destroyed in order to keep such evidence from the defendant and (his/her) counsel and you may weigh this inference with all of the other evidence you have heard.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.1 [Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Investigative Report Omissions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The fact that a certain matter or statement of a witness is not included in a law enforcement officer's report of (his/her) activities, interview or observations may be considered as evidence that the matter did not occur, or that the statement was not made by the person being interviewed.
AUTHORITY:
Wis. Stat. §§908.03(7), 908.03(10).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence: Discovery – Failure To Produce Evidence.
See also THE SHELLOW COLLECTION: Witnesses – Missing Witness.
ELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Loss Of Law Enforcement Officer Notes
See THE SHELLOW COLLECTION: Witnesses -- Law Enforcement Officers And Agents: Loss Of Law Enforcement Officer Notes.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Intentional Destruction Of Report Affecting Credibility
See THE SHELLOW COLLECTION: Witnesses -- Law Enforcement Officers And Agents: Intentional Destruction Of Report Affecting Credibility.