THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Evidence: Tapes And Transcripts
1. Jury To Rely On
Tape, Not Transcript Of Tape
2. Taped Conversations
With Informant: Limited As To Context
3. Taped Conversations
With Informant Or Third Party: Not To Be Considered
For Their Truth And Are Not
Evidence Against Defendant
4. Taped Conversations:
Factors To Consider In Determining Weight To Be Given
5. Jury May Consider Law
Enforcement Agent’s Testimony Concerning Circumstances
Under Which Consent For
Tape Recordings Was Obtained
6. Jury To Rely On
Recollection Of Tape Recordings, Not Statements By Counsel
In Closing Arguments
7. Grand Jury Transcripts:
Factors To Consider
8. Grand Jury Transcripts:
Response To Leading Questions May Be Given Less Weight
9. Grand Jury Testimony
Only Admissible Against Declarant Defendant
10. Recordings Must Be
Understandable, Complete And Accurate Or Jury Should
Disregard Them Entirely;
Jury Not To Speculate On What Was Said Or Portions
That Are Unintelligible
11. Taped Conversations With
Substantial Unintelligible Portions Rendering Them
Untrustworthy May Be
Disregarded
12. Tape Recordings: Chain Of Custody
13. Transcripts Of Tape Are Merely
Government's Representation Of What Was
Said On Tapes
14. Jury May Consider Whether Tape Is
Complete Record Of The Conversation
15. Phone Tap Conversation: Factors
To Consider
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Jury To Rely On Tape, Not Transcript Of Tape
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1: [To be given before the first tape is played]
Ladies and gentlemen, the tape recording as you have heard of the conversation identified by this witness, I have received it into evidence and it will be played for you in a few moments. Transcripts of that tape are going to be furnished to you for your guidance in listening to the tapes and you will be able to clarify portions of the tapes which may be difficult to hear and to identify the speakers you hear on the tapes. The tapes, however, what you hear, are the evidence in the case and the transcripts are not evidence. If you perceive any variation between what you hear on the tapes and the transcript, then you will be guided solely by what you hear and not by the transcripts.
If you cannot determine from the tapes or tape that particular words were spoken, you must disregard the transcripts insofar as those words are concerned. In other words, what you hear is the evidence and not what you see on the transcript. Those are just an aid or a guide.
I will instruct you now after the transcript is passed out to you that you are not to read the transcript or look at the transcript until after the tape starts. Then you can follow along while the tape plays on the transcript.
AUTHORITY:
United States v. Singleton, 125 F.3d 1097, 1105 (7th Cir. 1997).
SAMPLE INSTRUCTION # 2: [To be given before the first tape is played]
Ladies and gentlemen, you will hear the tape recording you will hear has been received into evidence and it will be played for you in a few moments. Transcripts of that tape are going to be furnished to you for your guidance in listening to the tapes and you will be able to clarify portions of the tapes which may be difficult to hear and to identify the speakers you hear on the tapes. The tapes, however, what you hear, are the evidence in the case and the transcripts are not evidence. If you perceive any variation between what you hear on the tapes and the transcript, then you will be guided solely by what you hear and not by the transcripts.
If you cannot determine from the tapes or tape that particular words were spoken, you must disregard the transcripts insofar as those words are concerned. In other words, what you hear is the evidence and not what you see on the transcript. Those are just an aid or a guide.
I will instruct you now after the transcript is passed out to you that you are not to read the transcript or look at the transcript until after the tape starts. Then you can follow along while the tape plays on the transcript.
AUTHORITY:
United States v. Singleton, 125 F.3d 1097, 1105 (7th Cir. 1997).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998).
SAMPLE INSTRUCTION # 3: [To be given before subsequent tapes are played]
I will remind the jury that what you hear on the tapes, which the tape has now been admitted into evidence, is the evidence, and not what you may see on the transcript. So that if there is anything that is not audible on the tape or that is at variance with the transcript, you will be governed by what you hear, not what you read. We will follow the same procedure as we did previously. That is that you may look at the transcript once the tape starts to play, and don't turn a page until I indicate that you may. In other words, don't try to read to the end of the story before we get through it.
AUTHORITIES:
United States v. Singleton, 125 F.3d 1097, 1105 (7th Cir. 1997).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998).
SAMPLE INSTRUCTION # 4:
You will hear (have heard) some tape recordings of conversations between __________ (name of defendant) and __________ (name of third party/codefendant/other). You also will be (have been) supplied with transcripts which may or may not accurately reflect what was said during these conversations. What you hear on the tapes is the evidence of what was said. The transcripts are not evidence. The transcripts are provided to you to help you follow and understand what you hear on the tapes, if they do help.
SAMPLE INSTRUCTION # 5:
As you have heard, certain exhibits have been identified as typewritten transcripts of the oral conversations which can be heard on the tape recordings received in evidence. The transcripts also purport to identify the speakers engaged in such conversations.
I have admitted the transcripts for the [limited and secondary] purpose of aiding you in following the content of the conversations as you listen to the tape recordings, and also to aid you in identifying the speakers.
However, you are specifically instructed that whether the transcript correctly or incorrectly reflects the content of the conversation or the identity of the speakers is entirely for you to determine based upon your own evaluation of the testimony you have heard concerning the preparation of the transcript, and from you own examination of the transcript in relation to your hearing of the tape recording itself as the primary evidence of its own contents; and, if you should determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.
AUTHORITIES:
Pattern Criminal Jury Instructions of the Fifth Circuit, 1.42 [Cautionary Instruction During Trial--Transcript of Tape Recorded Conversation] [formerly Trial Instruction 4] [modified].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Balistrieri, Case No. 81-CR-152 (E.D. Wis. 1983) [bracketed material deleted].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Taped Conversations With Informant: Limited As To Context
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1: [To be given before the first tape is played]
(name of informant) and __________ (name of defendant). At the time of the calls, __________ (name of informant) was acting on behalf of the federal government. For this reason statements made by __________ (name of informant) to __________ (name of defendant) cannot be considered as evidence against __________ (name of defendant), but can only be considered by the jury to place __________’s (name of defendant) responses in context. However, even so limited,__________’s (name of informant) statements cannot be used as context unless you are satisfied that __________ (name of defendant) heard and understood what __________ (name of informant) was saying and that __________’s (name of defendant) replies were responsive to __________’s (name of informant) statements.You will hear several tape recordings of conversations between __________
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); United States v. Rogers, 118 F.3d 466 (6th Cir. 1997); United States v. Darden, 70 F.3d 1507 (8 Cir. 1995), cert. den. 116 S.Ct. 1449, 2567 (1996);United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971); Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
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. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994) [bracketed material deleted].
SAMPLE INSTRUCTION # 2: [To be given before the first tape is played]
(name of informant) has said in recorded conversations with __________ (name of defendant) as evidence against __________ (name of defendant), but only to place __________’s (name of defendant) responses in context. The Court means by this admonition that the jury may not consider __________’s (name of informant) statements even as corroborative of (his/her) testimony concerning these statements or as corroborative of the testimony of any witnesses who might testify concerning the matters of which __________ (name of informant) speaks in the recorded conversations.The Court has previously instructed you that you may not consider what __________
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); United States v. Rogers, 118 F.3d 466 (6th Cir. 1997); United States v. Darden, 70 F.3d 1507 (8 Cir. 1995), cert. den. 116 S.Ct. 1449, 2567 (1996);United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971); Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Peterson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994) [bracketed material deleted].
SAMPLE INSTRUCTION # 3:
The testimony of __________ (name of informant) at this trial cannot be considered by you to be corroborated or supported by anything __________ (name of informant) said in the taped conversations that he had with __________ (name of defendant). As I instructed you, the statements made on those tapes by __________ (name of informant) are not evidence and can be considered by you only to place in context the statements by __________ (name of defendant).
SAMPLE INSTRUCTION # 4:
You have heard statements made and words uttered by __________ (name of witness) in recorded conversations. At the time of these conversations, __________ (name of witness) was working for the prosecution. For this reason nothing said by __________ (name of witness) in these conversations can be considered by you as evidence against __________ (name of defendant). You may only consider __________’s (name of witness) statements for the purpose of placing in context statements made to (him/her) during these conversations.
AUTHORITIES:
United States v. Duff, 76 F.3d 122, 127 (7th Cir. 1996); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965); See also United States v. Mahkimetas, 991 F.2d 379, 382-83 (7th Cir. 1993), citing United States v. Escobar de Bright, 742 F.2d 1196, 1199-1200 (9th Cir. 1984); United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971); Sears v. United States, 343 F.2d 139 (5th Cir. 1965); United States v. Davis, 890 F.2d 1373, 1379-80 (7th Cir. 1989), citing United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988), quoting United States v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Taped Conversations With Informant Or Third Party: Not To Be Considered For Their Truth And Are Not Evidence Against Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You will hear a recording of a conversation between __________ (name of third party) and __________ (name of informant). The statements in this conversation by __________ (name of informant) were made at a time __________ (name of informant) was acting as an informer and for that reason cannot be considered for their truth and are not to be considered as evidence against __________ (name of defendant).
Further, the only evidence which you may consider is what you hear on the recording. The transcript is not evidence and was only given to you to assist you in determining what was said on the tape. If you do not hear in the recording something which appears in the transcript, you are to disregard that portion of the transcript entirely.
SAMPLE INSTRUCTION # 2:
At the time the tapes were made of the conversations between __________ (name of informant) and __________ (name of defendant), __________ (name of informant) was an informer working for the ___________ (name of law enforcement agency). For this reason what __________ (name of informant) said in these conversations is not evidence against __________ (name of defendant) and cannot be considered as such by you. The only reason I am permitting you to listen to what was said by __________ (name of informant) is so that you can better understand what was said by __________ (name of defendant) during these conversations. On the other hand, what was said by __________ (name of defendant) on these tapes is evidence and may be considered by you with all of the other evidence in the case.
AUTHORITIES:
FRE 801(d)(2).
SAMPLE INSTRUCTION # 3:
You are reminded that the statements by __________ (name of defendant) in the recorded telephone conversation with __________ (name of third party) were only admitted for the purpose of putting __________’s (name of third party) statements in context. __________ (name of defendant) knew (his/her) statements were being recorded and they may not be considered for their truth. That is, the jury may not consider factual assertions made by __________ (name of defendant) in the conversation as true or draw inferences from such assertions.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
SAMPLE INSTRUCTION # 4:
The jury has heard a tape recorded conversation between __________ (name of witness) and __________ (name of defendant). During this conversation __________ (name of witness) made statements which, either directly or by implication, accused __________ (name of defendant) of wrongdoing. __________ (name of witness) at the time of these statements was working for the government. For that reason these statements cannot be considered for their truth.
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139 (5th Cir. 1965); United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971).
SAMPLE INSTRUCTION # 5:
You will hear tape recorded conversations in which __________ (name of witness) is speaking. At the time of these conversations __________ (name of witness) was acting as a agent of the federal government and was attempting to induce those persons with whom he was speaking to make incriminating statements. For this reason the statements made by __________ (name of witness) in these conversations cannot be considered for their truth and cannot be considered by the jury as corroborative of either __________’s (name of witness) testimony or the testimony of other witnesses.
SAMPLE INSTRUCTION # 6:
__________ (name of witness) at the time of (his/her) taped statements was working for the government and knew (his/her) statements were being recorded; therefore, they may not be considered for their truth.
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139 (5th Cir. 1965); United States v. Williamson, 450 F.2d 585, 590-91 (5th Cir. 1971).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Taped Conversations: Factors To Consider In Determining Weight To Be Given
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The jury has heard evidence concerning tape recorded telephone conversations. In determining what weight to give to the testimony concerning these conversations, you may consider all of the circumstances of the recording of the conversation, including any statements which were made to the participants to secure consent to record conversations.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Jury May Consider Law Enforcement Agent’s Testimony Concerning Circumstances Under Which Consent For Tape Recordings Was Obtained
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There's evidence in this case that __________ (name) gave permission for agents of the ___________ (name of law enforcement agency) to record (his/her) telephone conversations on . Although the consent form signed by __________ (name) explicitly limited the authorization of the agents to record his calls to __________ (name), the agents testified that they construed this authorization to permit them to record (his/her) calls for as long as they like up to and including the day the agents testified in Court.
The agents testified that the tape recording was an accurate transcription of the words which had been spoken by __________ (name) and __________ (name) and that the tape had not been tampered with nor altered. In weighing such testimony of the agents you may consider all of their testimony concerning the circumstances under which the consent for these tape recordings was obtained.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Jury To Rely On Recollection Of Tape Recordings, Not Statements By Counsel In Closing Arguments
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Where tape recordings of conversations are heard by the jury you must rely upon your recollection of these recordings. Statements by counsel in closing arguments purporting to recite these conversations are not evidence of the conversations, but merely counsel's recollection of the recording.
SAMPLE INSTRUCTION # 2:
Where tape recordings of conversations are the only evidence heard by the jury concerning conversations, you must rely upon your recollection of these recordings. Statements by counsel in closing argument purporting to recite these conversations are not evidence of the conversations, but merely counsel's recollection of the recordings.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Grand Jury Transcripts: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard certain grand jury transcripts read to you in part. In considering the accuracy of these grand jury transcripts you may consider whether evidence has been adduced that the transcripts were compared with the original notes and whether there was testimony that the transcripts accurately reflected the contents of these notes.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Grand Jury Transcripts: Response To Leading Questions May Be Given Less Weight
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the weight to be given to prior grand jury testimony which was read to the jury, you may consider, if you wish, whether such testimony was elicited by leading questions. That is, you may consider whether the prosecutor suggested by (his/her) questions to the witness the answers which the witness should give before the grand jury. Answers which are given by a witness in response to leading questions before a grand jury may be given less weight than answers which have not been suggested by the questions asked.
AUTHORITY:
Cf., United States v. Champion International Corporation, 557 F.2d 1270, 1274 (9th Cir. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Grand Jury Testimony Only Admissible Against Declarant Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Certain testimony was admitted which was given by a defendant before a grand jury. This testimony is admissible only against the declarant, that is, the person giving the testimony before the grand jury. It is not admissible and was not admitted against any other defendant nor it may be considered as binding upon any other defendant.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1255 (E.D. Pa. 1980).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Recordings Must Be Understandable, Complete And Accurate Or Jury Should Disregard Them Entirely; Jury Not To Speculate On What Was Said Or Portions That Are Unintelligible
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You heard tape recordings of a conversation between __________ (name of third party) and __________ (name of informant), and another that is allegedly between __________ (name of third party) and __________ (name of defendant). As I have previously instructed you, the recordings themselves are the evidence and the transcripts are merely provided to assist you in understanding what the parties said.
Further, you may only consider the recordings as evidence if you find that they are understandable and a reasonably complete and accurate recordation of what the parties said. If you do not find that these recordings are understandable, complete and accurate, you must disregard them entirely.
You may not speculate on what was said by the parties during these conversations, nor may you use the transcripts to provide evidence of those portions of the conversations which you find to be unintelligible.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Taped Conversations With Substantial Unintelligible Portions Rendering Them Untrustworthy May Be Disregarded
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A number of tape recorded conversations have been admitted into evidence and played for the jury. If you find that any of these taped conversations contain unintelligible portions which are so substantial as to render the recording as a whole untrustworthy, you may disregard each such recording in its entirety.
AUTHORITIES:
United States v. Madda, 345 F.2d 400, 403 (7th Cir. 1965); United States v. Frazier, 479 F.2d 983, 985 (2d Cir. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Tape Recordings: Chain Of Custody
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the tape recorded conversations of __________ (name of defendant) and __________ (name of third party), you may consider whether the prosecution has proven a continuous chain of custody of the tapes from the time they were recorded until they were played in this Court and whether there was an opportunity for prosecution agents to alter the tapes.
SAMPLE INSTRUCTION # 2:
In considering the tape recorded conversations of __________ (name of defendant), you may consider whether the prosecution has proven a continuous chain of custody of the tapes from the time they were recorded until they were played in this Court and whether there was an opportunity for prosecution agents to enhance or alter the tapes.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Chain Of Custody.
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See NCJIC 25.2.6 [Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized].
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Transcripts Of Tape Are Merely Government's Representation Of What Was Said On Tapes
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The transcript of tape recordings provided to you are merely the government's representation of what was said on the tapes.
AUTHORITY:
United States v. Howard, 80 F.3d 1194, 1200 (7th Cir. 1996).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Jury May Consider Whether Tape Is Complete Record Of The Conversation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering what weight to give to the tape recording of the conversation between __________ (name of defendant) and __________ (name) on __________ (date), you may consider whether the tape is a complete record of the conversation.
AUTHORITY:
United States v. Brown, 136 F.3d 1176, 1181-82 (7th Cir. 1998).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Phone Tap Conversation: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering what weight, if any, you should give to the evidence of the recorded telephone conversations between __________ (name of police agent) and __________ (name of defendant), I instruct you as follows:
(1) The statements by __________ (name of police agent) are statements of a police agent and, for that reason, are not evidence against __________ (name of defendant) and cannot be considered by you as evidence.
(2) The statements by __________ (name of defendant) must be considered in the light of the circumstances in which they were made. Ordinarily, a person is not required to deny either hysterical or emotionally charged accusations and (his/her) failure to deny such accusations does not constitute (his/her) admission of them and the accusations and his silence are not evidence of guilt. Similarly, a person is not required to make repeated denials of accusations. A single denial is sufficient.
(3) A concern that one's telephone conversations are being intercepted is not evidence of guilty knowledge.
(4) A person who suffers from __________ (disorder or other malady, e.g., stuttering, expressive aphasia) may have greater difficulty in articulating spontaneous responses than a person who does not suffer from this condition.
(5) You may not speculate upon the meaning of words or phrases which are ambiguous or which have more than one meaning.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Evidence Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.9.2 [Tape Recording: When Transcripts Used].
See also generally NCJIC 25.9 [Electronic Recordings].