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

    1.    Negative Evidence Defined
    2.    Non-Assertion Of Fact Equals Non-Existence Of Fact

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

1.    Negative Evidence Defined

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

SAMPLE INSTRUCTION # 1:

    You may consider what the law terms negative evidence. Negative evidence consists of the absence of some fact or circumstance which could reasonably be expected to have occurred under either the prosecutor's or defendant's theory of the case.

    If you reasonably expect that certain evidence should have been adduced and this evidence was not adduced upon the trial, then you may consider this in determining the strength of the prosecutor's case.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

State v. Lyons, No. 2-359976 (Circuit Court, Milwaukee County 1987); State v. Rucker, G-4705 (Circuit Court, Milwaukee County).

SAMPLE INSTRUCTION # 2:

    In considering the evidence in this case you may consider what is called negative evidence. Negative evidence is evidence which was not produced, but which could have been available. You may draw inferences from negative evidence as well as from positive evidence.

AUTHORITIES:

State v. Muhammad, 41 Wis. 2d 12, 162 N.W.2d 567 (1968); Neuenschwander v. Hornof, 273 Wis. 471, 78 N.W.2d 770 (1956); Marinette v. Goodrich Transit Company, 153 Wis. 92, 140 N.W. 1094 (1913).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

State v. Jefferson, 2-219947 (Circuit Court, Milwaukee County); State v. Loveday, H-7717 (Circuit Court, Milwaukee County).

SAMPLE INSTRUCTION # 3:

    In considering the evidence in this case you may consider what is called negative evidence. Negative evidence is evidence which was not found, but which would have been found under the theory of either the prosecution or the defense. You may draw inferences from negative evidence as well as from positive evidence. If the negative evidence introduced upon this trial creates in your mind after considering all of the other evidence a reasonable doubt of the defendant's guilt, then you must acquit (him/her).

AUTHORITIES:

State v. Muhammad, 41 Wis. 2d 12, 162 N.W.2d 567 (1968); Neuenschwander v. Hornof, 273 Wis. 471, 78 N.W.2d 770 (1956); City of Marinette v. Goodrich Transit Co., 153 Wis. 92, 140 N.W. 1094 (1913).

SAMPLE INSTRUCTION # 4:

    You are instructed that in considering the evidence in this case, you may consider what is called "negative evidence." Negative evidence consists of the absence of some fact or circumstance which could reasonably be expected to have occurred under either the prosecutor's or defendant's theory of the case. If you reasonably expect that certain evidence should have been adduced, and this evidence was not adduced upon the trial, then you may consider this in deter mining whether or not there is a reasonable doubt as to a defendant's guilt. You may also draw inferences from negative evidence, and if the negative evidence and the reasonable inferences drawn therefrom create in your mind, after considering all of the evidence, a reasonable doubt of a defendant's guilt, then you must find him not guilty.

AUTHORITY:

Neuenschwander v. Hornof, 273 Wis. 471; Marinette v. Goodrich Transit Company, 153 Wis. 92; State v. Muhammad, 41 Wis.2d 12.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Bronk, No. 84-CR-54-S (W.D. Wis. 1984).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.

RELATED NCJIC MATERIALS:

See generally NCJIC 36.1 [Destroyed Or Lost Evidence].

See also generally NCJIC 36.2 [Missing Witness].

See NCJIC 36.2.2.10 [Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence].

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

2.    Non-Assertion Of Fact Equals Non-Existence Of Fact

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

SAMPLE INSTRUCTION:

    The failure of a witness to assert a fact when it would have been natural to do so amounts to an assertion of the non-existence of the fact.

AUTHORITY:

Lambert v. State, 73 Wis. 2d 590, 243 N.W.2d 524, 532 (1976).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.

RELATED NCJIC MATERIALS:

See NCJIC 36.2.2.10 [Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence].