THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Expert Witnesses
1. Expert Witness:
Cautionary Instruction
2. Opinion Evidence: No
Better Than Underlying Assumption
3. Validity Of Expert
Opinion Is Case-Specific
4. Treatise Or Book As
Expert Evidence
5. Expert Witness: Failure
To Acknowledge Authority Of Treatise In Order To Avoid
Cross Examination
6. Expert Witness: Basis
Or Foundation Of Opinion
7. Jury Should Consider
Whether Opinion Is Based On Assumptions And Whether
Those Have Been Proved By
Evidence
8. Expert Witness: Basis
Of Opinion Contrary To Facts
9. Jury May Disregard Any
Opinion Not Resting Upon Identified And Proven Facts
10. Expert Opinion Expressed In Terms
Of Possibility Insufficient
11. Jury May Examine Data Relied Upon
For Expert Opinion
12. Jurors Not Bound By Expert
Opinion
13. Expert Opinion May Not Be Based
Upon Unsupported Assumptions
14. Jury May Consider Expert’s
Experience In Performing Test And Training In
Testing Procedures Employed
15. Expert’s Accuracy Of Opinion
Expressed As Fifty Percent Or Less Is Unreliable
16. Jury May Disregard Expert’s
Opinion Entirely
17. Expert Opinion Testimony: Factors
To Consider
18. Merely Interpreting Evidence Not
An Expert Opinion
19. Expert Must Explain Bases For
Opinion
20. Admissibility And Consideration
Of Expert's Opinion Turns On Whether The Expert's
Specialized Knowledge Enhances
The Jury's Understanding
21. Juror Consideration Of Expert
Testimony Given at Other Proceedings
22. Expert As Author Of Treatise:
Credibility
23. Jury May Consider Expert’s
Unexplained Departure From Accepted Procedures In
Determining Weight To Be Given
To Testimony
24. Expert Who Does Not Know, Or
Cannot Remember The Generally Accepted
Principles Of Field May Be Less Credible
25. Jury May Disregard Expert’s
Opinion Not Based On Sound Reasons In Whole Or Part
26. Sexual Assault Expert: Limiting
Instruction
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Expert Witness: Cautionary Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Expert witnesses have testified in this case. In determining what weight you shall give to their opinions, you may consider their experience, educational background, theoretical understanding of the discipline and the knowledge they have gained from reading authoritative treatises.
You should consider each expert opinion received in evidence in this case, and give it such weight as you think it deserves. If you should decide that the opinion of an expert witness is not based on sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, you may reject the opinion entirely.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robison, No 78-CR-l06 (E.D. Wis. l979); United States v. Umentum, No. 75-CR-l03 (E. D. Wis. l976); United States v. Vlasak, No. 75-CR-184 (D.P.R. l976); United States v. Parkison, No. 75-CR-73 (E. D. Wis. l976); United States v. Orzechowski, No. 75-CR-83 (E. D. Wis. l975); United States v. Lai, (S.D.N.Y.).
RELATED NCJIC MATERIALS:
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Opinion Evidence: No Better Than Underlying Assumption
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An opinion is no better than the hypothesis or the assumption upon which is is based.
AUTHORITIES:
International Paper Company v. United States, 227 F.2d 201, 205 (5th Cir. l955), cited in United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978).
RELATED NCJIC MATERIALS:
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
See also generally NCJIC Chapter 30: Lay Opinion/Nonexpert Opinion.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Validity Of Expert Opinion Is Case-Specific
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Merely because a witness has been permitted to testify as an expert and give an opinion in some other case does not mean that you should accept his or her opinion in this case.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Treatise Or Book As Expert Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Court has permitted you to hear what appears in learned treatises. Portions of these publications have been admitted as evidence because the Court has determined that the authors are experts in their field.
You should consider the excerpts from these books as though their authors testified under oath in this trial and give to their writings what weight you feel they deserve.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See NCJIC 29.1.2 [Publication Not Required To Be Expert Witness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Expert Witness: Failure To Acknowledge Authority Of Treatise In Order To Avoid Cross Examination
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A witness on cross-examination may not be asked whether he or she agrees with or disagrees with the author of a scientific treatise or publication unless the witness first acknowledges that the author is an expert or that the treatise or publication is scientifically recognized as authoritative.
A witness who refuses to recognize any writing as authoritative cannot be cross-examined over scientific books or articles.
If you believe that any witness believes that a writing is authoritative, but has testified that it is not so that he or she will not be questioned about its contents, you may distrust the testimony of that witness in its entirety.
SAMPLE INSTRUCTION # 2:
In weighing the testimony of an expert witness, the jury may consider whether (he/she) refused to acknowledge a treatise as authoritative for the purpose of preventing counsel from cross-examining (him/her) concerning the contents of the treatise.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Expert Witness: Basis Or Foundation Of Opinion
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In deciding the weight and importance to give an expert witness' testimony, such as the testimony of the expert here, you must consider the assumptions and facts upon which the expert based his/her opinion. You may* also consider the facts that the expert witness testified s/he did not rely upon in forming his/her opinion, in deciding whether to give the expert's opinion less weight.
You should* consider the expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard the opinion entirely.
* But see NCJIC 16.3.1 [Jury Must Consider All Of The Evidence].
AUTHORITIES:
Second paragraph: cf. O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.01, ¶ 2 (West, 5th ed. 2000)
RELATED NCJIC MATERIALS:
NCJIC 29.2.4 [Consideration Of The Foundation Of The Opinion].
NCJIC 29.2.5 [Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Jury Should Consider Whether Opinion Is Based On Assumptions And Whether Those Have Been Proved By Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering opinion testimony, you should consider whether the opinion is based upon assumptions stated by the witness, and the extent to which such assumptions have been proven by the evidence.
SAMPLE INSTRUCTION # 2:
In considering opinion testimony, you should consider whether the opinion is based upon assumptions stated by the witness, and the extent to which such assumptions have been proven by the evidence. If the assumed facts necessary to support or validate the expert's opinion were not in the end proven beyond a reasonable doubt, you must discard that opinion and give it no weight at all.
SAMPLE INSTRUCTION # 3:
Ordinary witnesses are not permitted to give opinions concerning evidence and what it has shown. Experts are permitted to give such opinions. In considering the opinion of an expert, you should consider to what extent the facts he has relied upon have been proven and the extent to which his assumptions have been proven or can otherwise be relied upon.
SAMPLE INSTRUCTION # 4:
An expert witness may give (his/her) opinion based on assumptions stated by (him/her). However, if the assumptions needed to support the opinion are not proved, or at least testified to, and are not otherwise taken to be true, the opinion is worthless.
AUTHORITIES:
United States v. Cooper, 277 F.2d 857, 860 (5th Cir. 1960).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Hestnes, 76-CR-3 (W.D. Wis. 1976).
SAMPLE INSTRUCTION # 5:
An expert witness may give an opinion based on assumptions stated by him or her. However, if the assumption needed to support the opinion is not proven, and not otherwise taken to be true, the opinion is worthless.
AUTHORITIES:
United States v. Cooper, 277 F.2d 857, 860 (5th Cir. 1960).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Hestnes, No. 76-CR-3 (W.D. Wis. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Expert Witness: Basis Of Opinion Contrary To Facts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where opinions are dependent upon the existence of facts upon which they are predicated, they become speculative and conjectural, and without evidentiary value, as soon as it is apparent that their bases are contrary to the established fact, and their premises nonexistent assumptions.
AUTHORITY:
Woods v. Safeway Systems, Inc., 101 R.I. 345, 223 A.2d 347 (1966).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975); United States v. Parkinson, No. 75-CR-73 (E.D. Wis. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Jury May Disregard Any Opinion Not Resting Upon Identified And Proven Facts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In weighing an expert opinion the jury may consider whether the expert identified the facts upon which (he/she) relied in reaching that opinion. The jury may disregard any opinion which does not rest upon identified and proven facts.
AUTHORITIES:
"It is the fact finder's duty to determine whether the facts underlying an expert opinion are true." Weber v. Chicago & Northwestern Transportation Co., 191 Wis.2d 626, 635, 530 N.W.2d 25 (Ct.App. 1995), quoting Tony Spychalla Farms, Inc. v. Hopkins Agric. Chem. Co., 151 Wis.2d 431, 441, 444 N.W.2d 743, 748 (Ct.App. 1989).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Expert Opinion Expressed In Terms Of Possibility Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The opinion of an expert that a cause of an occurrence is only possible is insufficient and should not be given any weight by a jury in reaching its verdict.
AUTHORITIES:
"[A]n expert opinion expressed in terms of possibility" is insufficient and is inadmissible in evidence. Kinnick v. Schierl, 197 Wis.2d 855, 863, 541 N.W.2d 803 (1995), quoting McGarrity v. Welch Plumbing Co., 104 Wis.2d 414, 430, 312 N.W.2d 37, 45 (1981); see also Wis. JI-Civil 265.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Jury May Examine Data Relied Upon For Expert Opinion
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the testimony of an expert witness, you as jurors may examine the data upon which the expert relied for (his/her) opinion and determine for yourselves whether that data supports the opinion which was given.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Lamon, No. 89-CR-134 (E.D. Wis. 1989) (Curran, J.); United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987) (Warren, J.).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Jurors Not Bound By Expert Opinion
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have heard testimony of expert witnesses. This testimony is admissible where the subject matter involved requires knowledge, special study, training, or skill not within ordinary experience, and the witness is qualified to give an expert opinion.
However, the fact that an expert has given an opinion does not mean that it is binding upon you or that you are obligated to accept the expert's opinion as to the facts. You should assess the weight to be given to the expert opinion in the light of all the evidence in this case.
AUTHORITIES:
Seventh Circuit Pattern Jury Instructions 3.07 [Weighing Expert Testimony] [formerly 3.27].
SAMPLE INSTRUCTION # 2:
During the trial you heard the testimony of several people who were described to us as experts in _________ (fields, e.g., banking, accounting), and so forth.
If scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify and state an opinion concerning such matters.
Merely because an expert witness has expressed an opinion does not mean, however, that you must accept this opinion. The same as with any other witness, it is up to you to decide whether you believe this testimony and choose to rely upon it. Part of that decision will depend on your judgment about whether the witnesses' background or training and experience was sufficient for the witnesses to give the expert opinions that you heard. You must also decide whether the witnesses' opinions were based on sound reasons, judgment, and information.
AUTHORITIES:
Fifth Circuit Pattern Jury Instructions (Criminal Cases) 1.17 [Expert Witness] [formerly No. 1.18 (1991)].
SAMPLE INSTRUCTION # 3:
The general rule is that witnesses may testify only to facts they know. A witness, however, who has special knowledge, experience, skill, training, or education in a particular profession or occupation is permitted to give an opinion as an expert in the field. In determining the weight to be given to the opinion of an expert, you should consider the qualifications and credibility of the expert, whether the opinion is based upon established facts or agreed facts in the case, and the reasons given for the opinion. Such evidence is received for the purpose of aiding you in arriving at a conclusion, if it does aid you. You are not bound by the opinion of any expert. You should consider carefully the opinion evidence with all the other evidence in the case, giving to it just such weight as you decide it is entitled to receive.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Expert Opinion May Not Be Based Upon Unsupported Assumptions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Experts are not exempt from the rules of evidence, and their testimony must be based upon established facts. It may not be based upon unsupported assumptions and opinions, guess, speculation or conjecture. A naked opinion based upon speculation or conjecture does not rise to the dignity of evidence.
AUTHORITIES:
Perry v. Allegheny Airlines, Inc., 489 F.2d 1349, 1353 (2d Cir. 1974) [first sentence]; McFarland v. Gregory, 425 F.2d 443, 448 (2d Cir. 1970) [first sentence]; Di Filippo v. Gargiulo, 278 App. Div. 172, 104 N.Y.S.2d 149 (1951) [second sentence]; Atlantic Life Insurance v. Vaugn, 71 F.2d 394, 395 (6th Cir. 1934) [final sentence].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Jury May Consider Expert’s Experience In Performing Test And Training In Testing Procedures Employed
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the weight to be given to the testimony of a __________ (type of expert, e.g., chemist), you may consider (his/her) experience in performing the test, and (his/her) training in the testing procedures which (he/she) employed.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Orzechowski, No. 75-CR-83 (E.D. Wis. 1975); United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Hestnes, No. 76-CR-3 (W.D. Wis. 1976); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 2:
In considering the weight to be given to the testimony of a __________ (type of expert, e.g., chemist), you may consider the newness of the test which (he/she) performed, (his/her) experience in performing the test and (his/her) training in the testing procedures which (he/she) employed.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Hestnes, No. 76-CR-3 (W.D. Wis. 1976); United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976); United States v. Orzechowski, Case No. 75-CR-83 (E.D. Wis. 1975).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Expert’s Accuracy Of Opinion Expressed As Fifty Percent Or Less Is Unreliable
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An expert witness who testifies that (his/her) confidence in the accuracy of (his/her) opinion is fifty percent or less has not given an opinion upon which the jury may rely.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Jury May Disregard Expert’s Opinion Entirely
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The rules of evidence provide that if technical or specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify and state (his/her) opinion concerning such matters.
You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based on sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, then you may disregard the opinion entirely.
AUTHORITIES:
Pattern Jury Instructions in Criminal Cases, United States Fifth Circuit, 1978.
SAMPLE INSTRUCTION # 2:
Generally speaking, the Rules of Evidence do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call expert witnesses. A witness who by education and experience have become expert in some art, science, profession or calling, may state an opinion as to relevant and material matters in which they profess to be an expert and may also state their reasons for the opinion.
You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. In determining what weight to give to the opinions of an expert, you may consider his experience, educational background, theoretical understanding of the scientific discipline and the knowledge that (he/she) may have gained from reading authoritative, scientific treatises and periodicals and training and experience in testing the procedures employed. If you should decide that the opinion of an expert is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound or that the opinion is outweighed by any other evidence, you may disregard the opinion entirely.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Expert Opinion Testimony: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the testimony of one who has been proffered as an expert witness, you may consider the education, training, and understanding by the witness of the principles of the field in which it is asserted (he/she) is expert. If you find that (his/her) knowledge, education, experience, and understanding of the principles of the discipline are not substantially greater than that of a lay witness, then you may disregard any opinion that (he/she) may have given.
Similarly, in weighing the testimony of one who has been proffered as an expert witness, you may consider the extent to which (his/her) testimony required the kind of expertise, training and experience which (he/she) professed to have. That is, in considering the testimony of such a witness you may consider not only (his/her) expertise, but whether such expertise is reasonably related to the testimony which (he/she) gave.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Merely Interpreting Evidence Not An Expert Opinion
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In the instance of __________’s (name of alleged expert) testimony you may consider whether (he/she) was merely interpreting evidence which was before the jury and, in effect, explaining what result should be reached. If you find that that was (his/her) function, then (he/she) was not acting as an expert witness, and (his/her) testimony should not be considered by you as evidence in the case.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F.Supp. 1306.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Expert Must Explain Bases For Opinion
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In weighing the testimony of an expert, the jury should remember that the expert should strive to instruct the Court and the jury in the ways of (his/her) work. If an expert has failed to explain the bases for (his/her) opinions, you are free to take this into consideration in weighing (his/her) testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Admissibility And Consideration Of Expert's Opinion Turns On Whether The Expert's Specialized Knowledge Enhances The Jury's Understanding
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Court has admitted the testimony of __________ (name of expert) and has determined that the jury may assess that testimony in the light of (his/her) training, education and experience. The jury must be instructed, however, that expert testimony may not be used merely to interpret a factual complex record. The test for admissibility and consideration of an expert's opinion turns not on complexity, but on the subject matter of the opinion; that is, on whether the expert's specialized knowledge enhances the jury's understanding.
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1334.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Juror Consideration Of Expert Testimony Given At Other Proceedings
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Court has permitted you to consider some of the answers given by __________ (name of expert) when (he/she) testified under oath at some other legal proceeding. You should consider this testimony as though it were given under oath at this trial and weigh it in the same way as you weigh the testimony of the witnesses who did appear in this Court.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Evidence: Tapes And Transcripts.
RELATED NCJIC MATERIALS:
See NCJIC 24.2.7.1 [Transcript Testimony From Previous Trial, Preliminary Hearing, Deposition, Etc.].
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Expert As Author Of Treatise: Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In weighing the testimony of __________ (name of expert) you may consider, if you wish, whether (he/she) employed the methods to make (him/her) appear more credible which (he/she) recommended in the chapter which (he/she) wrote.
If you find that (he/she) did so, you may take this into consideration in determining how much weight to give to (his/her) testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Jury May Consider Expert’s Unexplained Departure From Accepted Procedures In Determining Weight To Be Given To Testimony
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the weight to be given to the testimony of a witness, you may consider, if you wish, whether the evidence indicates that the witness complied with the ordinary rules and customs of his or her profession. If the testimony of a witness indicates a departure from accepted procedures, and the witness is unable to explain this departure to your satisfaction, you may consider this in determining what weight to give to his or her testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. Expert Who Does Not Know, Or Cannot Remember The Generally Accepted Principles Of Field May Be Less Credible
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A witness who is offered as some form of expert in the field of __________ (field of expertise, e.g., accounting) who acknowledges that (he/she) does not know, or cannot remember, the generally accepted principles of __________ (field of expertise) may be less credible than a witness who is familiar with these principles.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
25. Jury May Disregard Expert’s Opinion Not Based On Sound Reasons In Whole Or Part
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION :
Ordinarily, witnesses are not permitted to testify as to their opinions. An expert in a particular field is, however, permitted to testify as to (his/her) opinions.
You should consider any expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education or experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard that opinion in whole or in part.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
26. Sexual Assault Expert: Limiting Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The state has offered, and the court will admit, expert testimony of __________ (name of expert). This evidence was neither offered nor received as expert opinion that __________ (name of alleged victim) was sexually assaulted or that she is telling the truth about the alleged assault. Therefore, you may not consider the testimony of __________ (name of expert) as evidence that __________ (name of alleged victim) in fact was assaulted or that she is telling the truth about the alleged assault.
AUTHORITY:
State v. Jensen, 147 Wis. 2d 913, 432 N.W.2d 913, 917 (1988).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also generally NCJIC 29.2 [Instruction On Expert Testimony].
See NCJIC 29.1.15 [Sexual Assault Of Child: Expert Testimony That Charge Is Inconsistent With The Defendant’s Character Traits].