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

    1.    Lack Of Cooperation With Authorities: No Inference from Communication 
           Through Attorney
    2.    Communication Through Attorney Cannot Be Attributed To Defendant 
           Unless Statements Were Authorized
    3.    Right To Refuse To Answer; Right To Counsel
    4.    Witness Claiming Privilege

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

1.    Lack Of Cooperation With Authorities: No Inference from Communication Through Attorney

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

SAMPLE INSTRUCTION # 1:

    You have heard evidence that __________ (name of defendant) did not speak with detectives at a meeting in the ___________ (name of law enforcement agency) office in which was attended by __________ (name of defendant) and (his/her) lawyer.

    If you conclude that __________ (name of defendant) said nothing at this meeting upon the advice of (his/her) lawyer, you may draw no conclusion whatsoever from this evidence.

    If, however, you conclude that __________’s (name of defendant) decision not to speak with ___________ (name of law enforcement agency) detectives was (his/her) decision and not upon the advice of counsel, this evidence is not to be considered as evidence of the defendant's guilt, but is merely evidence which may be considered in weighing the credibility of __________ (name of defendant).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

State v. Clay, No. 87-CF-0201 (Waukesha County Circuit Court, October, 1989).

SAMPLE INSTRUCTION # 2:

    You have heard evidence that __________ (name of defendant) did not furnish information to the ___________ (name of law enforcement agency) authorities when he met with them and (his/her) lawyer in the offices of the ___________ (name of law enforcement agency).

    The fact that __________ (name of defendant) said nothing and spoke through (his/her) lawyer may not be considered as evidence that either __________ (name of defendant) was implicated in the ___________ (crime) [or that __________ (name of third party) was implicated in this ___________ (crime)].

RELATED NCJIC MATERIALS:

See NCJIC 45.3.2 [Proof Of Intent Instruction: Improper Comment On Defendant's 5th Amendment Privilege Against Self Incrimination].

See NCJIC 251.2.1.15 [Alibi: 5th Amendment Violation To Cross-Examine Defendant Regarding Failure To Reveal Alibi To Police].

See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].

See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].

See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].

See NCJIC 300.23 [Privilege Against Self Incrimination (5th Amendment)].

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

2.    Communication Through Attorney Cannot Be Attributed To Defendant Unless Statements Were Authorized

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

SAMPLE INSTRUCTION:

    Certain statements were admitted upon this trial which were allegedly made by the defendant's lawyer to agents of the ___________ (name of law enforcement agency).

    Before you can attribute such statements to the defendant and consider them as though they had been made by the defendant, you must first find from the evidence that the defendant had authorized (his/her) lawyer to make such statements. If the statements were not authorized by the defendant, then (he/she) is not bound by them. By authorized, I do not mean that the defendant had to know the precise statement which was going to be made by (his/her) lawyer, but only that (he/she) had authorized the lawyer to address the subject matter in (his/her) behalf.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Hestnes, No. 77-CR-23 (W.D. Wis. 1977).

RELATED NCJIC MATERIALS:

See NCJIC 45.3.2 [Proof Of Intent Instruction: Improper Comment On Defendant's 5th Amendment Privilege Against Self Incrimination].

See NCJIC 251.2.1.15 [Alibi: 5th Amendment Violation To Cross-Examine Defendant Regarding Failure To Reveal Alibi To Police].

See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].

See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].

See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].

See NCJIC 300.23 [Privilege Against Self Incrimination (5th Amendment)].

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

3.    Right To Refuse To Answer; Right To Counsel

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

SAMPLE INSTRUCTION # 1:

    It is the right of every citizen of the United States to refuse to answer questions placed by law enforcement officers in the absence of counsel; similarly, it is every citizen's right to request the presence of counsel while being questioned by law enforcement officers and to delay answering law enforcement officers' questions until the presence of counsel can be obtained. This right exists at all times and may be exercised whenever the citizen desires, including during the middle of an interview by law enforcement.

AUTHORITY:

Miranda v. Arizona, 384 U.S. 436 (1966).

RELATED NCJIC MATERIALS:

See NCJIC 45.3.2 [Proof Of Intent Instruction: Improper Comment On Defendant's 5th Amendment Privilege Against Self Incrimination].

See NCJIC 251.2.1.15 [Alibi: 5th Amendment Violation To Cross-Examine Defendant Regarding Failure To Reveal Alibi To Police].

See NCJIC 272.4.10 [Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required].

See NCJIC 272.4.10.1 [Violation Of Fifth Amendment: Implied Comment Improper].

See NCJIC 272.4.10.2 [Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)].

See NCJIC 300.23 [Privilege Against Self Incrimination (5th Amendment)].

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

4.    Witness Claiming Privilege

    See THE SHELLOW COLLECTION: Witnesses Generally – Witness Claiming Privilege: Inference.

    See also THE SHELLOW COLLECTION: Witness Claiming Privilege: No Inference Against Defendant.