THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Witness Bias: Generally
1.
Witness Bias: Testimony Showing Self-Interest Or Attitude Should Be
Considered
With Caution
2. Refusal To Speak To
Defense Counsel As Witness Bias
3. Witness Bias: Witness
Who Is In Employ Of One Of The Parties
4. Witness Bias: Law
Enforcement Or Government Employees
5. Friendly Or Hostile
Witness: Factors To Consider
6. Witness Bias:
"Over Responsive" Witness
7. Witness Bias: Inference
That Prosecution Witness Has Been Given
Promises By The Government
8. Witness Bias: Future
Civil Action As Evidence Of Bias
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Witness Bias: Testimony Showing Self-Interest Or Attitude Should Be Considered With Caution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that the testimony of any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused should always be considered with caution and weighed with great care.
AUTHORITY:
United States v. Murray, 445 F.2d 1171, 1176 (3d Cir. 1971).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Refusal To Speak To Defense Counsel As Witness Bias
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The particulars in a lawsuit are referred to as the parties. A federal criminal case is a lawsuit in which the federal government is one party and each of the defendants is a separate party.
A witness in a lawsuit does not belong to the party that called the witness to testify. The lawyer for each party has the right to speak with and interview any witness called by another, if the witness wishes to talk with the lawyer. The law does not require the witness to talk about the facts of the case with anyone –– neither with prosecutors nor the defense lawyers –– except where the witness is testifying formally in court. However, the refusal by a witness to speak with the lawyer for a party in the case may be considered by you in deciding whether the witness is biased against the party. Also, such a refusal to discuss the facts with all sides in the case may be considered by you in deciding whether the witness favors or feels obligated to the party which called the witness to testify. Thus, you the jurors are permitted to weigh the choice of a witness to speak with only one side in a lawsuit as evidence that the witness is not impartial.
SAMPLE INSTRUCTION # 2:
A witness is not the property of either the government or of the defendant. Each party has the right to talk with witnesses called by the other, if the witness wishes to talk with the lawyer.
There is evidence in this case that a prosecution witness refused to discuss the facts of this case with a defense attorney. You may consider this fact in weighing the testimony of this witness and in considering whether this witness is biased against the defendant.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982) (first paragraph only).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Witness Bias: Witness Who Is In Employ Of One Of The Parties
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The testimony of a witness who is in the employ of one of the parties may be considered in the light of that fact. Such testimony may reflect a desire on the part of the employee to favor the cause of his employer.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Witness Bias: Law Enforcement Or Government Employees
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In the case of government witnesses, you may, in weighing their credibility, take into consideration the fact that they are employees of the ___________ (name of law enforcement agency e.g., United States Department of Justice) and that they regularly appear as witnesses on behalf of the ___________ (name of jurisdiction e.g., state, United States, etc.). Accordingly, they may be interested in a verdict which is adverse to a defendant.
While you may not assume that, because of the relationship between the plaintiff and these ___________ (law enforcement officers, e.g., narcotics agents) you are required to disbelieve their testimony, it is one of the factors, among others, which is fairly to be considered by you in weighing the testimony of these witnesses.
Where such a witness appears to be hostile to a defendant, or biased in favor of the government, so that (he/she) appeared to take sides in the controversy, then the fact that (he/she) is associated with the government should receive your special attention in evaluating (his/her) testimony.
SAMPLE INSTRUCTION # 2 [Tax Cases]:
An investigator who examines and analyzes documents tending to show that a defendant had unreported taxable income, while ignoring similar documents from the same or similar sources tending to show that the defendant did not have taxable income, may be biased against a defendant. The jury may, if it wishes, take such bias into account in assessing the credibility of the witness and the strength of the prosecution's case.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Friendly Or Hostile Witness: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There is no rule of law that you must believe or disbelieve a biased or friendly or hostile witness. It is up to you. Of course, I assume that anybody will take into account whether a person is subject to bias, whether (he/she) has a motive to tell the truth, or a motive to lie. First, ask yourself, what were the witness' opportunities for observation? Second, what was his or her capacity for recollection? Third, what was his or her capacity for narration? And fourth, most importantly, what was the witness' ability to understand the relation of his or her particular piece of testimony to the case as a whole?
You should, in sum, inquire as to motivation or bias, seeking whether the witness has really shown the capacity to overcome the kind of bias that unfortunately every human being is subject to, some more, some less.
AUTHORITIES:
United States v. Interstate Engineering Corp., 288 F. Supp. 402, 415 (D.N.H. 1967).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Witness Bias: "Over Responsive" Witness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If a witness volunteers statements which are prejudicial to a defendant, you may consider, although you need not do so, that the witness is biased against the defendant. If you find that a witness is biased against a defendant, you may consider such bias in determining what weight, if any, to give to the testimony of the witness.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Loveday, H-7717 (Circuit Court, Milwaukee County, 1973).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Witness Bias: Inference That Prosecution Witness Has Been Given Promises By The Government
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the testimony which you have heard, you may consider whether or not the circumstances permit the inference that witnesses have been promised consideration by the government. If the circumstances warrant such an inference, then you may consider this factor in determining what weight, if any, to give to their testimony.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 25.5 [Witness Immunity].
See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See NCJIC 27.2.7 [Witness Credibility: Financial Interest Of Witness In Outcome Of Proceeding].
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Witness Bias: Future Civil Action As Evidence Of Bias
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that __________ (name of witness) may pursue a civil action against __________ (name of defendant). __________’s (name of witness) interest in any civil action he brings against __________ (name of defendant) is a factor you may consider in determining any bias, and thus the weight and credit to give __________’s (name of witness) testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Occupational Safety and Health Act of 1970 (29 USC 654) – Jurors Not To Consider Civil Litigation Against Corporation.
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.7 [Witness Credibility: Financial Interest Of Witness In Outcome Of Proceeding].
See also NCJIC 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding].