THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Introductory Instructions
1. Empanelling The
Jury: Instruction Preceding Oath
2. No Intention To
Influence Jury On Factual Matters
3. Jury As Sole Judge Of
The Facts
4. Jury As Sole Judge Of
The Credibility Of The Witness
5. Sequestering
6. Decide Facts
Independently Of Court And Counsel
7. What Jurors May
Consider
8. Jurors Should Not Be
Influenced By Publicity
9. Jurors May Reject
Evidence
10. Jurors May Rely On Common
Knowledge And Experiences
11. Jurors Are To Decide Case Fairly
And Impartially
12. Jurors Not To Discuss Case
13. Cautionary Instruction On Jury
Questions
14. Juror Note Taking
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Empanelling The Jury: Instruction Preceding Oath
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Twelve of you have been chosen as jurors in this case. of you have been selected as alternates. Before I give the juror's oath to you, I want to impress upon you the seriousness and importance of being a member of a jury. Trial by jury is a fundamental right in _______ (state). It assures that each case will be decided by citizens who are fairly selected, who come to a case without bias, and who will attempt to render a fair verdict upon the evidence presented.
You took one oath before you were examined as to your qualifications to be jurors. Now you are called upon to take a second oath. By this oath you will swear or affirm that you will decide the case on the evidence presented according to the law that I will give you.
When you take the oath you accept serious and important obligations. The jury system depends on the honesty and the integrity of individual jurors. You affirm that your answers to questions put to you concerning your qualifications to sit on this jury were complete and correct. You affirm that you are truly impartial in this case. You affirm that there is nothing to your knowledge that I or the parties should know about your ability to sit as a juror in this case. If any of you believe you should not take this oath or there is something that I or the parties should know that we do not know, please raise your hand. I will have you give your information to me and to the parties privately.
The oath will now be administered.
[INSERT THE OATH.]
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 10.3 [Swearing Or Impaneling the Jury].
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. No Intention To Influence Jury On Factual Matters
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
At no time during the course of the trial will it be my intention, by anything I say or do, or by any questions that I may ask, to intimate or suggest what you should find to be the facts on any question submitted to you, or that I believe or disbelieve any witness. If anything I do or say seems to so indicate, you will disregard it and form your own opinion. What the verdict shall be is your sole and exclusive duty and responsibility.
SAMPLE INSTRUCTION # 2:
If at any stage you have thought that I have expressed an opinion upon the facts in this case or upon how you should decide [this case] [the guilt or innocence of the defendant], I assure you you have misunderstood my intention. Neither previously, nor now, nor hereafter do I intend in any way to indicate how you should decide [this case] [the guilt or innocence of the defendant].
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D.N.H. 1967) [language in first set of brackets; language in second set of brackets added]..
SAMPLE INSTRUCTION # 3:
You are instructed that, regardless of what I may have said to the attorneys during this trial, I hold no opinion whatsoever concerning the credibility of any witness, the validity of the opinion of the crime laboratory employee or the guilt or innocence of the defendant.
Neither the words I spoke nor my demeanor in speaking them during this trial was intended to convey to you my personal feelings or beliefs or even that I have personal feelings or beliefs concerning this trial.
It would be a violation of your oath for you to consider my words and conduct during your deliberations.
SAMPLE INSTRUCTION # 4:
It would be a violation of your sworn duty as jurors to consider anything that I may have said or done in weighing the evidence in this case.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Higgans, No. 73-CR-102 (E.D. Wis. 1973); State v. Loveday, No. H-7717 (Circuit Court, Milwaukee County, 1973).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.14.3 [Conduct Of Judge: Miscellaneous Issues And Instructions].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Jury As Sole Judge Of The Facts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Neither by these instructions, nor by any ruling or remark which I have made, do I mean to indicate any opinion as to the facts or as to what your verdict should be. You are the sole and exclusive judges of the facts.
AUTHORITIES:
Seventh Circuit Pattern Jury Instructions 1.01 [The Functions of the Court and the Jury] [formerly 1.03 (1980)].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mullins, No. H CR 85-21 (N.D. Ind. 1985).
SAMPLE INSTRUCTION # 2:
Your function is to consider the facts as developed here in light of the instructions of law that I give you.
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D.N.H. 1967).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Jury As Sole Judge Of The Credibility Of The Witness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are the sole judges of the credibility of the witnesses, and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her intelligence, ability and opportunity to observe, his or her age, memory, manner while testifying, any interest, bias or prejudice he or she may have, and the reasonableness of his or her testimony considered in the light of all the evidence in this case.
AUTHORITIES:
7th Circuit Pattern 1.03 [Testimony of Witnesses (Deciding What to Believe)] [formerly 1.02].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
See also THE SHELLOW COLLECTION: Witness Credibility: Character For Truthfulness.
See also THE SHELLOW COLLECTION: Witness Credibility--Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Sequestering
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The law of the State of __________ requires that a jury in a murder case be sequestered. At the outset of this trial I was of the belief that a murder jury could be joined by members of the immediate family provided that neither the prosecutor nor defense counsel objected. After authorities of law were submitted by counsel on this point, I concluded that it would be an error of law of major importance if I had permitted the jury to be with their families on _________ (date, e.g., Thanksgiving) or at any other time even if I had secured the consent and approval of all parties. Had I permitted this, I am convinced that these proceedings would be void.
AUTHORITIES:
Oborn v. State, 143 Wis. 249, 126 N.W. 737 (1910); Hempton v. State, 111 Wis. 127, 86 N.W. 596 (1901).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Schaffer, No. I-4977 (Circuit Court, Milwaukee County).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 17.5 [Sequestering Jury: Cautionary Instruction].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Decide Facts Independently Of Court And Counsel
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are entirely free to disregard anything that counsel have said, or that I have said, or may say, about the facts. You are not in any way to defer to a Judge merely because you may think a Judge has more experience and therefore might be wiser with respect to the facts.
There is no reason to believe that a Judge is a wiser person with respect to facts than a juror, and there are many reasons to believe that one Judge is less wise than 12 jurors. Twelve jurors represent different points of views. They have different backgrounds. They are qualified to determine the credibility of witnesses and to form opinions with respect to questions of fact of every kind.
AUTHORITY:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D.N.H. 1967) (Wyzanski, J.).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. What Jurors May Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The evidence in this case consists of the sworn testimony of the witnesses, the exhibits received in evidence, and stipulated admitted, or judicially noticed facts.
A stipulation is an agreed statement of facts between the parties, and you should regard agreed statements as true.
I have taken judicial notice of certain facts which I regard as matter of common knowledge. You may, but are not required to, accept those facts as proved.
You are to consider only the evidence received in this case. You should consider this evidence in the light of your own observations and experiences in life. You may draw such reasonable inferences as you believe to be justified from proved facts.
[You are to disregard any evidence to which I sustained an objection or which I ordered stricken.] Anything you may have seen or heard about this case outside the courtroom is not evidence and must be entirely disregarded. You should not be influenced by sympathy, prejudice, fear or public opinion. [You should not be influenced by any person's race, color, religion, national ancestry or sex.]
AUTHORITIES:
Seventh Circuit Committee 1.02 [The Evidence] and 1.06 [What Is Not Evidence] [formerly 1.07 (1980)].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mullins, No. H CR 85-21 (N.D. Ind. 1985); United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985) [bracketed portions added].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC Chapter 24: What Is And What Isn’t Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Jurors Should Not Be Influenced By Publicity
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You should decide this case solely on the evidence presented here in the courtroom. You must completely disregard any press, television or radio reports which you may have read, seen or heard. Such reports are not evidence; therefore, you must not be influenced in any manner whatever by such publicity.
AUTHORITIES:
Federal Criminal Jury Instructions of the Seventh Circuit, 1.06 [What Is Not Evidence] [formerly 1.09 (1980)]; United States v. Coduto, 284 F.2d 464, 468 (7th Cir.), cert. denied, 365 U.S. 887 (1961).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Balistrieri, Case No. 81-CR-152 (E.D. Wis. 1983); United States v. Mullins, No. H CR 85-21 (N.D. Ind. 1985).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 3.4.2 [Trial Publicity: Judge Has Duty To Inquire When Media Coverage Includes Information Not Presented At Trial].
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.4 [Juror Exposure To And Consideration Of Extrinsic Evidence And Materials].
See NCJIC 16.6.4 [Accessing Information In The Media].
See NCJIC 16.11 [Media In The Courtroom].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Jurors May Reject Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
As the exclusive judges of the facts, your job is to consider the evidence in this case. Evidence includes the testimony of witnesses, whether on direct or cross-examination; and exhibits that I have admitted. You are never bound to accept any single piece or source of evidence, and in fact may reject any or all evidence in its entirety, but first you must thoughtfully consider that evidence. Keep in mind always that the state bears the exclusive duty to prove the charge that it has brought, and that __________ (name of defendant) properly may choose to rely, in whole or in part, on the state's failure to offer sufficient evidence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 27.1.1 [Witness Credibility: Improper To Limit Jury's Right To Reject Witness Testimony].
See NCJIC 27.1.2 [Credibility Of Witness: Jury May Believe A Portion Of Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Jurors May Rely On Common Knowledge And Experiences
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In weighing the evidence, you may take into account matters of your common knowledge and your observations and experience in the affairs of life.
SAMPLE INSTRUCTION # 2:
You should consider all the evidence in the light of your own observations and experiences in life. In reviewing the evidence, you should not disregard, and, indeed, you are entitled to use, your own common sense.
AUTHORITIES:
Modified, Illinois Pattern Jury Instructions Criminal, 1.01.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.6.7 [Juror Claim Of Personal Expertise During Deliberations].
See NCJIC 276.5 [Jury Reliance On Common Sense].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Jurors Are To Decide Case Fairly And Impartially
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are to decide this case fairly and impartially, without fear or favor, and without passion or prejudice.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.2.2 [Duty Of Jurors To Be Unbiased].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Jurors Not To Discuss Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Under no circumstances are you to discuss this case in the presence of anyone except the 12 jurors finally sitting in this case. Do not discuss it with any court officers or with lawyers or with parties or with strangers.
Counsel and I will be available if there are further points.
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402 (D.N.H. 1967).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. l981); State v. Gelhaar, No. K-7185 (Milwaukee County Circuit Court, 1986); State v. Stevens, No. J-9112 (Milwaukee County Circuit Court, 1982).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.2.3 [Duty Not To Converse With Other Persons].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Cautionary Instruction On Jury Questions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Members of the jury, you will be permitted to ask questions of witnesses throughout this trial. As to any question from a juror that the Court permits the witness to answer, the witness is sworn to testify truthfully, just as he or she must when one of the lawyers asks a question, or I ask a question. A question is never more or less important merely because of the person who asks it.
As jurors, you may ask questions in the following fashion. After the lawyers have finished questioning a witness, you may then seek permission to pose a written question to the witness; you need only raise your hand, and the bailiff will supply you with pencil and paper. The bailiff will then give your written question to me.
Just as it is perfectly proper for you to ask questions, it is proper for the lawyers to object on legal grounds if they think the question is inappropriate for some reason, in whole or in part. Their objections are not meant in any way to reflect upon the quality of the question, but only to assert some legal point; they are not objecting to you or to your curiosity, but are trying only to protect rights of their clients that may be affected by an answer.
On occasion, I may reformulate your questions in an attempt to allow you to receive a clear answer to the question, while at the same time assuring that the trial remains fair to both parties. Again, my purpose in reformulating a question is to permit the essence of a question that might otherwise be objectionable as it was phrased, rather than not permitting the question at all. I can also decline a given question if I think it improper, even if the lawyers do not object. You must be careful to draw no inference if I elect not to permit a question to be asked of a witness.
Sometimes, a juror's question will create a new area of inquiry that one or both of the parties may wish to expand upon or clarify. The lawyers will be permitted to ask follow-up questions for that reason, if they wish.
Finally, I want to make clear, on the one hand, that you are under no duty to ask any questions at all, and on the other hand, that you may ask as many questions as you wish, of any witness you wish. There is a very simple guideline that I can offer you in deciding whether to ask a question: If you think an answer to the question would be helpful to you in considering fairly and carefully that witness' testimony, or in considering other evidence you have heard, go ahead and ask the question; if you do not think it would be helpful, then do not ask the question.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.9 [Questions To Witnesses By Jurors].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Juror Note Taking
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1 [Note Taking Permitted]:
Some jurors prefer to take notes as evidence is presented. Other jurors prefer not to do so. It is for you to decide individually whether or not to take notes. If you do, you must use the pad that I have asked the clerk to place on each of your chairs. I caution that it is not necessary for you to take notes. It is necessary that you carefully consider all of the evidence in the case. Do not let note taking interfere with your consideration of the evidence. It is important to remember not only what a witness says, but also how you assess the reliability, truthfulness or untruthfulness of the witness' words. Do not let note taking about what a witness says interfere with your ability to evaluate his or her testimony.
Each time that you are excused from the courtroom you should leave your notepads on your chair. The clerk will collect your pads; they will be kept privately and will not be shown to anyone. They will be returned to you when you return to the courtroom. When you begin your deliberations, you may have your notes with you. If you decide to take notes, your notes are to help you and you alone. You may review your notes to help your own memory, but you must not show or read your notes to other jurors. No juror's notes fairly can be given more weight in your deliberations than the memory of another juror who chose to carefully consider the evidence without taking notes. Accordingly, if you take notes, they are to be used by you only for your own personal review and are not to be shared with others.
If, during deliberations, there is a disagreement as to what any witness or witnesses said, you may try to resolve it by comparing recollections with other jurors or by asking for the testimony to be read, but you may not rely on someone else's notes. Notes are not evidence.
When the case is over, your notes will be collected and destroyed.
SAMPLE INSTRUCTION # 2 [Note Taking Not Permitted]:
Notetaking is not allowed because: the length of this trial is short enough that you will be able to remember the evidence. Moreover, I am concerned that taking notes will distract you from the witnesses' testimony.
AUTHORITY:
Wis. J.I. (Civ.) #60 [modified].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Concluding Instructions.
See also THE SHELLOW COLLECTION: Duty Of Jury.
See also THE SHELLOW COLLECTION: Concluding Instructions – Use Of Juror Notes.
RELATED NCJIC MATERIALS:
See NCJIC 16.2 [Conduct And Duty Of The Jury During Trial].
See NCJIC 16.8 [Juror Notetaking].