THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Witness Impeachment (See also Prior Inconsistent Statements/Impeachment)

    1.    Impeachment By Prior Statement
    2.    Using Documents For Impeachment Or Refreshing Recollection
    3.    Effect Of Reading Prior Testimony To Avoid Impeachment
    4.    Impeachment By Prior Inconsistent Statements
    5.    Discredited Or Impeached Witnesses
    6.    Impeachment By Prior Perjury
    7.    Impeachment By Prior Unsworn Statements
    8.    Impeachment By Reputation Evidence
    9.    Impeachment With Past Convictions

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

1.    Impeachment By Prior Statement

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

SAMPLE INSTRUCTION:

    During the course of this trial the Court has allowed counsel for the parties on occasion to introduce prior statements of a witness which were not given under oath for the purpose of impeaching the trial testimony of that witness. These prior statements were admitted for purposes of impeaching the witness only.

AUTHORITIES:

United States v. Whitson, 587 F.2d 948, 953 (9th Cir. 1978).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

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

RELATED NCJIC MATERIALS:

See generally NCJIC 26.3 [Prior Inconsistent Statements].

See also NCJIC 26.3.1 [Impeachment By Unsworn Prior Inconsistent Statements].

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

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

    Whatever document may be used to refresh a witness' memory, whether a telephone book, a letter or transcribed testimony, that particular document is used strictly to refresh that person's recollection and is not to be considered by you as affirmative evidence. That document either did refresh recollection or it did not. If it did not, it has no value and the witness will say his recollection was not refreshed. If his recollection was refreshed, then you are to consider his present testimony alone and not the matter that was read.

    If the document was used for purposes of impeachment, it is for you to decide the effect which it might have had on the witness' credibility. You have to decide from hearing the prior testimony, and from hearing the present testimony, whether this has the effect of impeaching the witness' credibility. Is the witness less believable in your mind knowing how he testified previously?

AUTHORITIES:

Jury Instructions in Criminal Antitrust Cases (ABA Section of Antitrust Law), citing jury instructions in United States v. National Dairy Products Corp., 262 F. Supp. 447 (W.D. Mo. 1967).

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

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

SAMPLE INSTRUCTION:

    A witness who reads his prior testimony for the purpose of insuring that it will not be used for the purpose of impeaching him is a witness whose credibility may be questioned by the jury and whose testimony should be received with caution.

RELATED NCJIC MATERIALS:

See NCJIC 24.2.7.1 [Transcript Testimony From Previous Trial, Preliminary Hearing,Deposition, Etc.].

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

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

    The testimony of a witness may be discredited by showing that the witness testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial.

    Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements are true. You may consider the earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness and therefore whether they affect the credibility of that witness.

    If you believe that a witness has been discredited in this manner, it is your exclusive right to give the testimony of that witness whatever weight you think it deserves. I remind you that a defendant has the right not to testify. When the defendant does testify, however, his or her testimony should be weighed and his or her credibility evaluated in the same way as that of any other witness.

AUTHORITIES:

5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.11 [ Impeachment by Prior Conviction (Defendant's Testimony)] (2001).

RELATED NCJIC MATERIALS:

See generally NCJIC 26.3 [Prior Inconsistent Statements].

See also NCJIC 26.3.1 [Impeachment By Unsworn Prior Inconsistent Statements].

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

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

SAMPLE INSTRUCTION # 1:

    The testimony of a witness may be discredited or impeached by showing that he previously made statements which are inconsistent with his present testimony. The earlier contradictory statements are admissible only to impeach the credibility of the witness, and not to establish the truth of these statements. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has been impeached.

    If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars; and you may reject all the testimony of that witness or give its such credibility as you may think it deserves.

    An act or omission is done "knowingly", if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Jackson, No. 89-CR-62 (E.D. Wis. 1990).

    A witness may be discredited or impeached by contradictory evidence; or by evidence that at some time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness' present testimony.

    If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of such witness such credibility, if any, as you may think it deserves.

    If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars; and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.

State v. Cox, No. H-8113 (Circuit Court, Milwaukee County).

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 27: Witness Credibility.

See also NCJIC 251.4.3.3 [Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation].

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

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

SAMPLE INSTRUCTION:

    It has been shown that ___________, one of the witnesses for the state, lied under oath on an earlier occasion. A person who lies when she was sworn to tell the truth is guilty of perjury.

    Whether ____________ is telling the truth in this trial is for you to decide. But the fact that she lied under oath on an earlier occasion should make you cautious about believing her now.

Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS No. 29 [Impeachment by Prior Perjury] (1988).

RELATED NCJIC MATERIALS:

See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].

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

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

    There has been evidence in this case of statements previously given by prosecution witnesses which were inconsistent with the testimony of these witnesses upon the stand at this trial. These prior statements were admitted for the purpose of impeaching the credibility of the witness and for no other purpose. These prior unsworn statements are not evidence of the facts purportedly recited in such statements and cannot be considered by the jury as such.

AUTHORITIES:

United States v. Ragghainti, 560 F.2d 1376, 1379 (9th Cir. 1977).

RELATED NCJIC MATERIALS:

See generally NCJIC 26.3.1 [Impeachment By Unsworn Prior Inconsistent Statements].

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

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

    The credibility of a witness may be discredited or impeached by evidence showing that the general reputation of the witness for truth and veracity is bad.

    If you believe a witness has been so impeached and thus discredited, it is your exclusive right to give the testimony of that impeached witness such weight, if any, you think it deserves.

    You may consider this evidence of bad reputation for truthfulness as one of the circumstances you assess in determining whether or not to believe the testimony of that witness.

RELATED NCJIC MATERIALS:

See NCJIC 251.4.1.2 [Distinction Between Character And Reputation Evidence].

See also NCJIC 251.4.3.3 [Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation].

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

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

    Evidence was offered that ____________ (name of defendant) was twice convicted of crimes. This evidence was not offered and may not be considered by you as evidence that he is a bad person or that he is a person likely to commit crimes.

Evidence of _____________ (defendant’s) two convictions is offered for the sole purpose of assisting you in weighing ___________ (defendant's) credibility. In this weighing process you may take into consideration, if you wish, the nature of the offenses for which he was convicted as well as the remoteness of the convictions.

RELATED NCJIC MATERIALS:

NCJIC 27.3.2 [Prior Conviction Of Defendant].