THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Witnesses: Informants
1. Testimony Of
Informer: Cautionary Instruction
2. Hearsay Statement By
Government Informer: Jury Not To Consider For Their Truth
3. Government Informer Is
Not Conspirator: Definition Of Government Informer
4. Informants:
Contradictory Testimony Has Added Importance
5. Informants: Testimony
Is Inherently Untrustworthy
6. Informants:
Uncorroborated Admissions Insufficient To Convict
7. Informants: Admission
Of Crimes As Bearing On Credibility
8. Hearsay Statements Of
Government Agents Or Informers May Not Be Considered
9. Government Agent
Witness: Statements Used For Context Only
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Testimony Of Informer: Cautionary Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that an informer is defined as one who gives information to the authorities for consideration. The testimony of an informer is always suspect because of the consideration which he receives or expects to receive for his testimony. For this reason the testimony of an informer should be received by you with great caution and weighed with great care.
SAMPLE INSTRUCTION # 2:
The statements and conduct of an informer who provides evidence against a defendant for pay or for personal advantage must be examined and weighed by you with greater care than that of an ordinary witness. You must determine whether the informer's statements and conduct were affected by his interest or by his prejudice against the defendant. However, the sole fact that an informer was paid is not justification under the law for your finding a particular defendant not guilty, if you find that his guilt has been proven beyond a reasonable doubt from your consideration of the evidence.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 3:
You have heard the testimony of certain government witnesses that they have an arrangement with the government under which they get paid for providing information about criminal activity. The government may present the testimony of such a person. Some people who get paid for providing information about criminal activity are entirely truthful when testifying. Still, you should consider the testimony of such a witness with more caution than the testimony of other witnesses. Since he may believe that he will continue to be paid only if he produced evidence of criminal conduct, he may have reason to make up stories or to exaggerate what others did. In deciding whether you believe such a witness' testimony, you should keep these comments in mind.
AUTHORITIES:
Federal Judicial Center, Pattern Criminal Jury Instructions No. 25 [Testimony of Paid Informer: Cautionary Instruction].
SAMPLE INSTRUCTION # 4:
The conduct of an informer who is compensated on the basis of the results (he/she) obtains should be scrutinized by you carefully and evidence concerning (his/her) conduct and statements should be weighed with care before accepted by you as true. A government informer is not a conspirator and (his/her) acts and statements cannot under any circumstances be imputed to any other person. Therefore you are instructed that none of the statements attributed to __________ (name of informant) are admissible or may be considered by you as declarations of a co-conspirator.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, et al., No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 5:
You are instructed that where a defendant testifies that (he/she) led a blameless life and has steadfastly asserted (his/her) innocence and the proof against (him/her) consists wholly of an identification by a paid informer, our legal system requires that the testimony of such informer be carefully scrutinized and weighed with great care.
AUTHORITY:
United States v. Miller, 411 F.2d 825 (2d Cir. 1969).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See also NCJIC 305.9.4 [Informants].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Hearsay Statement By Government Informer: Jury Not To Consider For Their Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
See Hearsay Statements Of Government Agents Or Informers May Not Be Considered.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Government Informer Is Not Conspirator: Definition Of Government Informer
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A person while acting as a government informer is not a conspirator, and his acts and statements cannot be imputed to any other persons. In determining whether a person is a government informer or not, you must view the testimony from the perspective of the alleged informer. If he subjectively believed that he was acting on behalf of a federal or state law enforcement agency, then he did not have the specific intent to act as a member of an unlawful conspiracy, and his acts and declarations cannot be attributed to other persons.
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971); Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994) [bracketed material deleted].
RELATED NCJIC MATERIALS:
See NCJIC 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Informants: Contradictory Testimony Has Added Importance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Where the evidence against an accused is based solely on the testimony of a co-conspirator or informer, those whose testimony contradicts that of the conspirator or informer take on added importance.
AUTHORITY:
United States v. Arendale, 444 F.2d 1260, 1269 (5th Cir. 1971).
SAMPLE INSTRUCTION # 2:
Where the evidence against an accused is based solely on the testimony of an alleged co-conspirator or informer, testimony which contradicts such evidence takes on added importance.
AUTHORITY:
United States v. Arendale, 444 F.2d 1260, 1269 (5th Cir. 1971).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See also NCJIC 305.9.4 [Informants].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Informants: Testimony Is Inherently Untrustworthy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where the government has targeted a named individual and a witness has entered into an agreement or deal with the government which is dependent upon the witness incriminating that named individual, the testimony of the witness is inherently untrustworthy and should be considered by the jury only if it is corroborated by other credible evidence.
AUTHORITIES:
United States v. Cervautes-Pacheco, 793 F.2d 689, 695 (5th Cir. 1986); Williamson v. United States, 311 F.2d 441 (5th Cir. 1962).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See also NCJIC 305.9.4 [Informants].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Informants: Uncorroborated Admissions Insufficient To Convict
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If admissions to an informant are not corroborated, the evidence is not sufficient to convict.
AUTHORITIES:
United States v. Roth, 777 F.2d 1200, 1206 (7th Cir. 1985), citing United States v. Trombley, 733 F.2d 35, 37-38 (6th Cir. 1984) (per curiam).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See also NCJIC 305.9.4 [Informants].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Informants: Admission Of Crimes As Bearing On Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The fact that is an informer and has admitted federal and state crimes and other acts of criminal conduct and moral dereliction should be considered carefully by you in bearing upon (his/her) credibility.
AUTHORITY:
United States v. Corallo, 413 F.2d 1306, 1322 (2d Cir. 1969).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See also NCJIC 305.9.4 [Informants].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Hearsay Statements Of Government Agents Or Informers May Not Be Considered
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Several witnesses have testified as to what they were told by ____________ (name of government informant). You have also heard a tape recording of conversations between ____________ (name of third party) and ____________ (name of government informant) and ____________ (name of third party) and ____________ (name of government informant).
____________ (name of informant) at the times of these statements was a government informant. Accordingly, none of the statements attributed to ____________ (name of government informant), even if he made them, may be considered by you for their truth. The statements made by ____________ (name of government informant) are not evidence against these defendants and may not be weighed by you in making your determination whether the government has proven either of these charges beyond a reasonable doubt.
SAMPLE INSTRUCTION # 2:
If you conclude on the basis of all the evidence you have heard that on ______________ (date) at __________________ (location) ____________ (name of third party) was secretly working with ____________ (name of government informant) and had been told by ____________ (name of government informant) that the operation was a government sting, then statements made by ____________ (name of third party) to _________________ (list others) and ____________ (name of government informant) may not be considered for their truth, nor may they be considered by you in determining whether the government has met its burden of proof.
SAMPLE INSTRUCTION # 3:
During all of the events involved in the operation which forms the basis of these prosecutions, _____________ (name of agent/informer) and _____________ (name of agent/informer) were acting on behalf of the government.
For this reason, none of the statements made by either _____________ (name of agent/informer) or _____________ (name of agent/informer) may be considered by you for their truth nor may they be considered as evidence against either _____________ (name of accused) or _____________ (name of accused).
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See NCJIC 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].
See also NCJIC 305.9.4 [Informants].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Government Agent Witness: Statements Used For Context Only
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard statements made and words uttered by __________ (name of witness) in conversations with __________ (name of defendant). At the time of these conversations, __________ (name of witness) was working for the prosecution. For this reason nothing said by __________ (name of witness) in these conversations can be considered by you as evidence against __________ (name of defendant). You may only consider __________’s (name of witness) statements for the purpose of placing __________’s (name of defendant) statements to __________ (name of witness) in context.
AUTHORITIES:
United States v. Duff, 76 F.3d 122, 127 (7th Cir. 1996); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965); See also United States v. Mahkimetas, 991 F.2d 379, 382-83 (7th Cir. 1993), citing United States v. Escobar de Bright, 742 F.2d 1196, 1199-1200 (9th Cir. 1984); United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971); Sears v. United States, 343 F.2d 139 (5th Cir. 1965); United States v. Davis, 890 F.2d 1373, 1379-80 (7th Cir. 1989), citing United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988), quoting United States v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witness Bias: Financial Interest In Case.
RELATED NCJIC MATERIALS:
See NCJIC 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].
See also NCJIC 305.9.4 [Informants].