THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Variance Between Pleading And Proof

    1.    Time Of Alleged Crime Need Not Be Established With Precision
    2.    Time Of Offense Stated In Charging Document Must Direct Jury’s Attention To 
           A Particular Crime
    3.    "On Or About:" Evidence Must Establish That Crime Was Committed Reasonably 
           Near The Date Charged For That Count

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

1.    Time Of Alleged Crime Need Not Be Established With Precision

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

    It is not necessary that either party establish that something occurred at the precise time stated or alleged. If the evidence shows beyond a reasonable doubt that the offense was committed, and was committed on a date near the date alleged, that is sufficient. Similarly, you should give the same latitude to the defendant's statements on times.

Wis JI-Criminal 255, modified to apply evenly and fairly to both parties in this case.

See generally NCJIC Chapter 40: Variance Between Pleading And Proof.

See NCJIC 40.1 [Date Of Crime Charged: Due Process Violation Where Defendant Was Misled By Date Charged In Preparing Defense].

See NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].

See NCJIC 40.3 [Time of Crime: Request For Continuance Necessary To Preserve Variance Issue].

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

2.    Time Of Offense Stated In Charging Document Must Direct Jury’s Attention To A Particular Crime

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

    In Count ____ of the indictment, the defendant is charged with committing the offense on about __________ (date) Although the precise time of the commission of the offense is not an element of the charge and need not be proven by the government, nonetheless the time of the offense stated in the indictment must direct your attention to a particular crime with sufficient certitude that you can find the defendant guilty of that crime and no other beyond the reasonable doubt. If the evidence does not permit you to do this, then, regardless of what other similar offenses the defendant may have committed, (he/she) may not be found guilty of Count ____.

United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982).

See generally NCJIC Chapter 40: Variance Between Pleading And Proof.

See NCJIC 40.1 [Date Of Crime Charged: Due Process Violation Where Defendant Was Misled By Date Charged In Preparing Defense].

See NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].

See NCJIC 40.3 [Time of Crime: Request For Continuance Necessary To Preserve Variance Issue].

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

3.    "On Or About:" Evidence Must Establish That Crime Was Committed Reasonably Near The Date Charged For That Count

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

   Each count of the indictment charges that the offense charged in that count was committed "on or about" or during the period described in that count. Although the evidence need not establish with certainty the exact dates charged in each count, it must establish that the offense was committed reasonably near the date or period charged in each [that] particular count.

Seventh Circuit Committee 4.04 [Date of Crime Charged] [formerly 3.01 (1980)].

United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985) [modified].

See generally NCJIC Chapter 40: Variance Between Pleading And Proof.

See NCJIC 40.1 [Date Of Crime Charged: Due Process Violation Where Defendant Was Misled By Date Charged In Preparing Defense].

See NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].

See NCJIC 40.3 [Time of Crime: Request For Continuance Necessary To Preserve Variance Issue].