THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Perjury (See also Witnesses: Witness Perjury)
1. Perjury: Literally
True But Intentionally Misleading Statements Insufficient
2. Perjury: Unanimity
Required As To The Basis For The Falsity
3. Perjury: Defendant Must
Know That Statement Was False; Mistaken Or
Inadvertent Falsity Insufficient
4. Perjury: Statement
Which Is True
5. Ambiguous Questions
6. Unanimity On the
Falsity Of A Particular Statement
7. False Statement Must
Follow Properly Administered Oath To Tell The Truth
8. Witness Oath Is Not
Completed Unless The Witness Indicates Assent To The Oath
9. Perjury: Entrapment
10. Jury May Consider Witness’
Belief That If Testimony Differed He/She Could
Be Prosecuted For Perjury
11. Inconsistent Testimony Regarding
Date Is Not Perjury
12. Proceedings Must Be Conducted
Before Properly Elected Or Appointed Judge
13. Conspiracy To Commit Perjury
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Perjury: Literally True But Intentionally Misleading Statements Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In deciding whether the defendant's answers were false, the answers must be given their natural meaning in the context in which the words were used. If you find that an answer given by the defendant was literally true, but unresponsive to the question asked, you may not find that answer false or convict the defendant because of it. As long as a statement, or a reasonable interpretation of a statement, is narrowly or literally true, there can be no conviction for perjury. This is so even if you find that the answer was intentionally misleading.
AUTHORITIES:
1A L. Sand, et al., Modern Federal Jury Instructions Instruction 48-25 (1993) and authorities cited therein.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Perjury: Unanimity Required As To The Basis For The Falsity
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Count _____ alleges that ________________ (name of defendant) made a material false declaration under oath when he testified that he saw John Doe every day in ________________ (month/year), with the exception of one weekend. One element the government must prove is that the above statement was false. The government satisfies its burden of proving falsity if it proves beyond a reasonable doubt that, in fact, there was a day or were days in September other than those between ________________ (month/year) and ________________ (month/year) when, in fact, ________________ (name of defendant) did not see John Doe.
However, and this is important, you may not find the defendant guilty unless you all agree, unanimously, on a particular day in the month of ________________ (month/year) that ________________ (name of defendant) did not see John Doe. It is not enough if you all believe that the statement was false, but you do not agree on the reason why the statement was false. That is, you cannot find ________________ (name of defendant) guilty if, for example, some of you think that his statement was false only because he did not see John Doe on ________________ (month/year) and the rest of you think that his statement was false only because he did not see John Doe on ________________ (month/year). There must be at least one specific date in ________________ (month/year) on which all of you believe beyond a reason able doubt that ________________ (name of defendant) did not see John Doe. If you do not all agree that there was a particular date in September, other than between ________________ (month/year) and ________________ (month/year), when ________________ (name of defendant) did not see John Doe, then you must find the defendant not guilty.
AUTHORITIES:
United States v. Holley, 942 F.2d 916 (5th Cir. 1991).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See generally NCJIC 273.10.10 [Jury Unanimity: Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Perjury: Defendant Must Know That Statement Was False; Mistaken Or Inadvertent Falsity Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A false answer given because of inadvertence, honest mistake, carelessness, neglect, or misunderstanding does not constitute the crime of perjury. Therefore, unless you find beyond a reasonable doubt that ________________ (defendant) knew at the time he or she testified that his or her answer was false, and that it was not simply the result of inadvertence, honest mistake, careless ness, neglect, or misunderstanding, you must find the defendant not guilty.
AUTHORITY:
United States v. Martellano, 675 F.2d 940, 942 (7th Cir. 1982); United States v. Kehoe, 562 F.2d 65, 69 (1st Cir. 1977).
SAMPLE INSTRUCTION # 2:
The requirement that you find that the defendant acted knowingly means that you may not find the defendant guilty of perjury simply because the defendant gave testimony which is factually incorrect. The defendant may have given incorrect testimony because of inadvertence, an honest mistake of facts, confusion, haste, carelessness, neglect, or over sight. If the defendant made an erroneous and incorrect statement due to a slip of the tongue or bad memory or through misunderstanding, he would not be guilty of making the false statement knowingly.
AUTHORITIES:
United States v. Martellano, 675 F.2d 940, 942 (7th Cir. 1982); United States v. Kehoe, 562 F.2d 65, 69 (1st Cir. 1977).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
SAMPLE INSTRUCTION # 3:
If you decide that the defendant made a false declaration at the trial of ________________, you must then decide whether the defendant made that false declaration knowingly. That is, at the time the answer was given, did the defendant know and believe that the answer was false. Unless you find beyond a reasonable doubt that the defendant knew his answer was false, you may not find the defendant guilty.
AUTHORITIES:
See generally 18 USC 1621, 18 USC 1622 and 18 USC 1623.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See generally NCJIC Federal Models By Offense: Perjury (18 USC 1621).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Perjury: Statement Which Is True
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A perjury conviction may not be based upon an answer which is literally true or literally accurate.
AUTHORITY:
Bronston v. United States, 409 U.S. 352 (1973); United States v. Williams, 536 F.2d 1202 (7th Cir. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Ambiguous Questions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you should find that a particular question was ambiguous--that is, subject to more than one interpretation--and that the defendant truthfully answered one reasonable interpretation of the question under the circumstances presented, then such answer would not be false. Similarly, if you should find that the question was clear but the answer was ambiguous, and one reasonable interpretation of such answer would be truthful, then such answer would not be false.
AUTHORITIES:
Fifth Circuit Pattern Jury Instruction 2.69 [False Declaration Before Grand Jury or Court] [laast paragraph] (2001) [formerly No. 2.63 (1990)];2 United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Unanimity On the Falsity Of A Particular Statement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before the jury can render a verdict of guilty all 12 jurors must agree on the falsity of a particular statement.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 95.3.1 [Perjury: Requirement Of Juror Unanimity As To At Least One False Statement].
See NCJIC 273.10.10 [Jury Unanimity: Perjury].
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. False Statement Must Follow Properly Administered Oath To Tell The Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The first element of the offense which must be established is that a person with whom the defendant acted as a party to the crime made an oral statement while under oath. Before the defendant may be found guilty of perjury, the state must prove by evidence which satisfies you beyond a reasonable doubt that the person making the alleged false statement did so after being properly administered an oath to tell the truth. In deciding this issue you are instructed that a properly administered oath must be in a form calculated to awaken the witness' conscience and to impress (his/her) mind with (his/her) duty to testify truthfully. The oath may be administered substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God.
AUTHORITY:
Wisconsin Rules of Evidence, §906.03(1) and (2).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Witness Oath Is Not Completed Unless The Witness Indicates Assent To The Oath
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining whether the alleged false statement was given under oath you are instructed that the process of administering an oath is not completed unless the witness indicates his or her assent to the oath. Such assent may be manifested by the uplifted hand.
AUTHORITY:
Wisconsin Rules of Evidence, §906.03(4).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Perjury: Entrapment
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A perjury charge cannot be predicated upon interrogation techniques that have perjury as their sole objective. It constitutes governmental misconduct to trap a witness under interrogation into committing perjury. Such a perjury trap exists where the prosecutor shows no palpable interest in eliciting facts material to an authorized substantive investigation, and is simply preoccupied with the perjury objective.
AUTHORITY:
70 C.J.S. §30.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Jury May Consider Witness’ Belief That If Testimony Differed He/She Could Be Prosecuted For Perjury
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of witness) testified that it was (his/her) belief that, if (his/her) testimony at this trial was different from testimony (he/she) gave on a prior occasion, (he/she) could be prosecuted for perjury.
You may consider this belief in weighing the credibility of __________ (name of witness).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Inconsistent Testimony Regarding Date Is Not Perjury
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Witnesses who merely testify inconsistently about approximate dates cannot be said to commit perjury.
AUTHORITIES:
United States v. Leibowitz, 857 F. 2d 373, 379 (7th Cir. 1988); United States v. Kimberlin, 805 F.2d 210, 249 (7th Cir. 1986), cert. denied, 107 S.Ct. 3270 (1987).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Proceedings Must Be Conducted Before Properly Elected Or Appointed Judge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The fourth element of the offense which must be established before the defendant may be found guilty of perjury is that a pledged false statement was made in a John Doe proceeding before a judge. Before the defendant may be found guilty of perjury, the state must prove by evidence which satisfies you beyond a reasonable doubt that the John Doe proceedings were conducted before a properly elected or appointed judge. [You are instructed that in determining this issue a retired judge in the State of Wisconsin may not serve as a reserve judge and exercise the powers of a judge unless the retired judge is appointed by the Chief Justice of the Wisconsin Supreme Court.]
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Perjury: Declaration Before Grand Jury Or Court (18 USC 1623).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 95: Perjury And Related Offenses.
See NCJIC 305.16.4 [Perjury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Conspiracy To Commit Perjury
See THE SHELLOW COLLECTION: Conspiracy Generally: Conspiracy To Commit Perjury.