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

Limited Purpose Evidence: Uncharged Offenses And Acts

    1.    Uncharged Acts: Limiting Instruction
    2.    Uncharged Acts: Limited To Showing Source Of Funds
    3.    Trial Limited To Charged Conduct
    4.    Jury Not To Consider Suspicions As Evidence Of Guilt
    5.    Defendant Not On Trial For Previous Conduct
    6.    Proof Of Other Crimes Or Acts As Relevant To Defendant’s Intent And 
           Witness’ Motive To Testify Falsely
    7.    Past Conduct Insufficient To Show Predisposition Or Criminal Disposition

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

    Evidence has been received that _______________ (name of defendant) claimed to have committed crimes for which he was not convicted. This evidence was offered only to place in context his conversations with _________________ (name of law enforcement officer) and to provide the jury with evidence of his state of mind at that time. It cannot be considered by the jury as evidence of ______________’s (name of defendant) bad character nor as evidence of his propensity to commit criminal acts.

Wis. Stat. §904.04(1).

RELATED NCJIC MATERIALS:

See NCJIC 26.5.3 [Uncharged Acts: Limiting Instructions].

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

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

    The defendant is not on trial for any acts not charged in the indictment. That is, the evidence that has been introduced that the defendant violated laws relating to ____________ (controlled substance) in years prior to _______ (year) has not been offered to show that the defendant is a bad person or that he is likely to commit violations of the law. It was offered solely in support of the defendant's position that he had a source of funds prior to _____________ (date / year) from which his cash hoard could have been accumulated.

United States v. Marrinson, No. 85-CR-225 (N.D. Ill. 1986).

RELATED NCJIC MATERIALS:

See generally NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

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

3.    Trial Limited To Charged Conduct

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

SAMPLE INSTRUCTION:

    The defendant[s] [is] [are] not on trial for any act or conduct not alleged in the[criminal complaint] [information] [indictment].

AUTHORITIES:

1A O'Mallery, Grenig and Lee §12.09 (5th Ed. 2000).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); State v. Yogesh N. Gandhi, Case No. 89-CF-281 (Racine County, January 1990); United States v. Lamon, No. 89-CR-134 (E.D. Wis. 1989); United States v. Ehrlich, No. 85-CR-77 (E.D. Wis. 1985); United States v. Machi, No. 85-CR-114 (E.D. Wis. 1985); United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982); United States v. Linton, No. CR-R-80-24-ECR (D. Nev. 1981); State v. Kelnhofer, Case No. 95-CM-124 (Walworth County, Wisconsin, 1996); State v. Pezze, File No. 91-CF-45 (Bayfield County Circuit Court, March, 1992); State v. Stevens, No. 87-FE-15 (Manitowoc County, November, 1988); State v. Lyons, No. 2-359976 (Circuit Court, Milwaukee County 1987); State v. Lofton, No. 86-CR-1699 (Brown County Circuit Court Branch IV, May, 1987); State v. Gelhaar, No. K-7185 (Milwaukee County Circuit Court, 1986); State v. Fiedler, No. 85-CR-48 (Rock County Circuit Court); State v. Dronso, No. H-9460 (Milwaukee County Circuit Court, January 1975); State v. Rucker, No. G-4705 (Milwaukee County Circuit Court); State v. Mendoza, No. I-1798 (Circuit Court, Milwaukee County)'; United States v. Bastanipour, 80-CR-248 (N.D. Ill. 1981); State v. Franzen, No. 97-CF-24 (Calument County, Wisconsin, 1999); United States v. Heber, No. 81-CR-20 (W.D. Wis. 1981); State v. Van Dyke, No. J-7863 (Circuit Court, Milwaukee County); United States v. Blas, No. 89-CR-232 (E.D. Wis. 1990) (Curran, J.); United States v. Balistrieri, Case No. 81-CR-152 (E.D. Wis. 1983); United States v. Balistrieri, No. 81-CR-153 (E.D. Wis. 1984).

RELATED NCJIC MATERIALS:

See NCJIC 25.19 [Uncharged Acts: Nonpropensity].

See also NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].

See also NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

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

4.    Jury Not To Consider Suspicions As Evidence Of Guilt

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

    The fact that _________ (name of defendant) was suspected of ________ (crime, e.g., killing) (his/her) _____________ (relationship, e.g., and name of first alleged victim), is no evidence whatsoever of (his/her) guilt of the ________ (crime, e.g., murder) of _________ (name of second alleged victim). It would be a violation of your oath as jurors and of the trust that the court has placed in you for you to consider such suspicions as evidence of guilt. [Add in changed venue cases:] One of the reasons the defendant consented to have this trial here in __________ (venue) rather than in __________ (venue) was to secure jurors who would be willing and able to follow this instruction.

See NCJIC 25.19 [Uncharged Acts: Nonpropensity].

See also NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].

See also NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

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

5.    Defendant Not On Trial For Previous Conduct

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

United States v. Barber, 442 F.2d 517, 527-28 (3d Cir. 1979):

[W]e believe that instructions to the jury must be molded to fit the factual complex of each case. An instruction approved in one case, or indeed in many similar cases, may not be sufficient for the particular case at bar if the comparative circumstances are not identical or substantially similar.

While we endorse the wide latitude to be accorded the trial courts in the area of jury instructions, we recognize a compelling need for guidelines which will obviate skeletal, pattern instructions and assure the essential particularity demanded by the facts surrounding each instruction.

    You are instructed that the defendant is only on trial in this case for one count of __________ (charge e.g., attempted murder). Your duty as jurors in this case extends to deciding (his/her) guilt or innocence only as to this charge. Therefore, if any of you feel that the evidence presented suggests that the defendant is guilty of committing other crimes or was engaged in other misdeeds, you are directed to completely disregard these thoughts and may not consider the possible existence of such other crimes or misdeeds in deciding whether or not the defendant is guilty of the crime for which (he/she) is presently on trial.

State v. Sanders, Case Nos. J-4434 and J-4434, Milwaukee County, April 1979).

See NCJIC 25.19 [Uncharged Acts: Nonpropensity].

See also NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].

See also NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

See NCJIC 26.5.3 [Uncharged Acts: Limiting Instructions].

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

6.    Proof Of Other Crimes Or Acts As Relevant To Defendant’s Intent And Witness’ Motive To Testify Falsely

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

1 Federal Criminal Jury Instructions of the Seventh Circuit 3.04 [Proof of Other Crimes or Acts] [formerly 3.08, modified].

See NCJIC 25.19 [Uncharged Acts: Nonpropensity].

See also NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].

See also NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

See NCJIC 26.5.3 [Uncharged Acts: Limiting Instructions].

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

7.    Past Conduct Insufficient To Show Predisposition Or Criminal Disposition

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

    Evidence that ___________ (name of defendant) may have ___________ (conduct, e.g., sold small quantities of cocaine) in the past is not evidence that he is predisposed to ___________ (conduct, e.g., sell cocaine) and is not to be considered by the jury in its determination whether the prosecution has proven beyond a reasonable doubt that _______ (name of defendant) is guilty of the __________ (crime, e.g., conspiracy) charged in Count _______.

    You have heard evidence concerning conduct of _________ (name of defendant) in (19___ / 20_____) and (his/her) conviction in that year. You may not consider this as evidence of (his/her) bad character or criminal disposition.

See NCJIC 25.19 [Uncharged Acts: Nonpropensity].

See also NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].

See also NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

See NCJIC 26.5.3 [Uncharged Acts: Limiting Instructions].