The Shellow Collection: Witness Bias: Leniency For Testimony

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Witness Bias: Leniency For Testimony

    1.    Jury May Consider Whether Promise Of Leniency Affected The Witnesses’ Testimony
    2.    Jury May Consider Hopes And Expectations Of Leniency Even Though Not Based
           Upon Explicit Promises By The Government
    3.    Jury May Consider Not Only Current Consideration Given Witness But Also
           Future Consideration By The Prosecution
    4.    Jury May Weigh Chances Of Being Treated As Juvenile Offender Rather Than As Adult
    5.    Testimony Of Witness Who Believes Prosecution Will Give Consideration Only
           If Defendant Is Convicted Should Be Weighed With Caution
    6.    Jury May Consider That Witness’ Sentence Will Be Reduced Only If Prosecutor
           Convinces Judge Witness Rendered Substantial Assistance
    7.    Witness Must Be Aware Of Offer Of Leniency For Cooperation
    8.    Promise Of Leniency Adds Little to Truth-Telling Obligation Of Witness
    9.    Inference That Prosecution Witness Has Been Given Promises By The Government
    10. Jury May Consider Motivation For Cooperation

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

1. Jury May Consider Whether Promise Of Leniency Affected The Witnesses’ Testimony

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

SAMPLE INSTRUCTION # 1:

Several witnesses have testified that they hope or expect the government to recommend leniency at their sentencing or to request that a court reduce a sentence which has already been imposed.

In weighing the credibility of these witnesses, you may take into consideration their hopes and expectations and whether such attitudes have affected the testimony they gave.

AUTHORITIES:

See Gordon v. United States, 344 U.S. 414, 417 (1953); United States v. Masino, 275 F.2d 129, 131-32 (2d Cir. 1960); United States v. Amabile, 395 F.2d 47, 50-51 (7th Cir. 1968), rev'd on other grounds, 394 U.S. 310 (1969); United States v. Marzano, 537 F.2d 257, 267-68 (7th Cir. 1976).

SAMPLE INSTRUCTION # 2:

You have heard evidence that witness(es) __________ (name of witness) [and __________ (name of witness)] have received promises from the government that (he/she/they) will face reduced charges and that (his/her/their) testimony will not be used against (him/her/them) in a criminal case. You may give (his/her/their) testimony such weight as you think it deserves. Whether or not this testimony may have been influenced by the government's promises is for you to determine. If the jury finds that the testimony of such a witness is not corroborated, then such testimony must be received with caution and weighed with great care.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Shyres, Martino and Orloff, No. 88-0090-CR(3) (E.D. Mo.), aff'd, 898 F.2d 647 (8th Cir. 1990).

SAMPLE INSTRUCTION # 3:

In weighing the testimony of a witness who has received concessions from the prosecutor, you may consider the value of these concessions to the witness, and whether they were likely to influence the testimony of the witness.

SAMPLE INSTRUCTION # 4:

You have heard evidence that witnesses __________ (names of witnesses) have made plea agreements with the government. You may give their testimony such weight as you think it deserves. Whether or not their testimony may have been influenced by the plea agreements is for you to determine. If the testimony of __________ (names of witnesses) has not been corroborated by other credible evidence, then such testimony must be received with caution and weighed with great care.

These witnesses' guilty pleas cannot be considered by you as any evidence of guilt of __________ (name of defendant). The witnesses' guilty pleas can be considered by you only for the purpose of determining how much, if at all, to rely upon those witnesses' testimony.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Shyres, Martino and Orloff, No. 88-0090-CR(3) (E.D. Mo. 1988), aff'd, 898 F.2d 647 (8th Cir. 1990).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

2. Jury May Consider Hopes And Expectations Of Leniency Even Though Not Based Upon Explicit Promises By The GovernmentCaveats and DisclaimersCaveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

In weighing the testimony of __________ (name of witness) [and __________ (name of witness)], the jury should consider not only what the government has promised [this] [these] witness(e)s but also (his/her/their) hopes and expectations of leniency even though these are not based upon explicit promises by the government.

AUTHORITIES:

United States v. Anderson, 739 F.2d 1254, 1259 (7th Cir. 1984); United States v. West, 670 F.2d 675, 683 (7th Cir.), cert. denied sub nom. King v. United States, 457 U.S. 1124 (1982); United States v. DeLeon, 498 F.2d 1327, 1332-33 (7th Cir. 1974).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

3. Jury May Consider Not Only Current Consideration Given Witness But Also Future Consideration By The Prosecution

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

SAMPLE INSTRUCTION:

In weighing the testimony of a witness who has been given consideration by the prosecution, you should consider the importance or significance of not only this consideration, but also the hopes of the witness for future consideration by the prosecution and the effect of this consideration upon the credibility or believability of the witness.

AUTHORITIES:

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

4. Jury May Weigh Chances Of Being Treated As Juvenile Offender Rather Than As Adult

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

SAMPLE INSTRUCTION:

If you find that __________ (name of codefendant/accomplice) believed that (his/her) chances of being treated as a juvenile offender would be improved if (he/she) falsely implicated another person in addition to (himself/herself) in the __________ (crime, e.g., shooting), then you may consider this belief in weighing the testimony of __________ (name of codefendant/accomplice).

AUTHORITIES:

Davis v. Alaska, 415 U.S. 308 (1974); State v. Lenarchick, 74 Wis. 2d 425, 447-48, 247 N.W.2d 80, 92 (1976) (witness' hopes and expectations of reward from state relevant to bias even without actual promise from state).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

5. Testimony Of Witness Who Believes Prosecution Will Give Consideration Only If Defendant Is Convicted Should Be Weighed With Caution

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

SAMPLE INSTRUCTION # 1:

The testimony of a witness who believes that the prosecution will give (him/her) consideration only if __________ (name of defendant) is convicted should be weighed with great care and caution unless such testimony is corroborated by other credible evidence.

AUTHORITIES:

United States v. Eschweiler, 745 F.2d 435, 439 (7th Cir. 1984), citing United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984) (aff'd en banc by an equally divided Court).

SAMPLE INSTRUCTION # 2:

In weighing the testimony of a witness, you may consider whether the witness believes that a guilty verdict in this case will favorably affect the disposition of (his/her) own case.

SAMPLE INSTRUCTION # 3:

A witness who believes that (his/her) deal is dependent upon the indictment or conviction of a particular person may be motivated falsely to accuse such person and falsely to testify against (him/her).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987).

SAMPLE INSTRUCTION # 4:

A witness who believes that (his/her) deal with the government is dependent upon the conviction of the defendant is presumed to be unreliable and a conviction should not rest upon the testimony of such a witness unless it is corroborated by unequivocal and substantial evidence.

AUTHORITIES:

United States v. Eschweiler, 745 F.2d 435, 439 (7th Cir. 1984); United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984) (aff'd en banc by an equally divided Court).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

6. Jury May Consider That Witness’ Sentence Will Be Reduced Only If Prosecutor Convinces Judge Witness Rendered Substantial Assistance

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

SAMPLE INSTRUCTION # 1:

The law provides that after a person has been sentenced for a federal crime (his/her) sentence can be reduced by the judge, but only if the prosecutor asks the judge to reduce it and only if the prosecutor can convince the judge that the person has rendered substantial assistance to the prosecutor since the time (he/she) was sentenced. You may consider this fact, if you wish, in weighing the testimony of __________ (name of witness).

SAMPLE INSTRUCTION # 2:

Only the prosecutor can decide that a witness has rendered substantial assistance to the government and ask the Court in sentencing the witness to go below the guidelines which the Federal Sentencing Commission has established for the offense for which the witness has been convicted.

AUTHORITIES:

Federal Sentencing Guideline §5k1.1.

SAMPLE INSTRUCTION # 3:

You are instructed that only the prosecution can ask this Court to sentence a defendant to a sentence below a mandatory minimum and below the sentencing guidelines and can only do so if the prosecution represents to the Court that the witness gave the prosecution substantial assistance.

AUTHORITIES:

Federal Sentencing Guidelines §5k.1.1

SAMPLE INSTRUCTION # 4:

    Under some circumstances the Court has considerable discretion in making its determination what sentence should be imposed upon a convicted defendant. In some prosecutions, however, this discretion is limited by a mandatory minimum sentence which Congress has enacted.

    Count _____ of this indictment is such an offense. Congress has determined that persons convicted of this offense must be sentenced to imprisonment for not less than _____ years and may be sentenced to _____ years. Any sentence imposed by the Court does not permit the defendant to be paroled.

    The actual sentence which must be imposed by the Court is further limited by guidelines which have been established by a Commission. The guidelines take into account _________ (factors, e.g., the amount of the drug, whether weapons were involved, the managerial role of a defendant) and a number of other factors which the Commission determined to be significant.

    The government can ask the Court to impose a sentence either below the guidelines or below the mandatory minimum sentence required by Congress only when it can represent to the Court that the defendant has provided substantial assistance to the prosecution. Neither the defendant nor (his/her) lawyer can ask the Court to depart downward from the mandatory minimum nor the minimum set by the Commission's guidelines.

    You may consider the testimony of those witnesses who have been convicted of this crime in the light of this instruction.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

7. Witness Must Be Aware Of Offer Of Leniency For Cooperation

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

SAMPLE INSTRUCTION:

In considering the motive or bias of a witness against a defendant, the jury may consider evidence showing conduct by the State which might lead the witness to believe that (his/her) prospects for lenient treatment by the State depended upon the degree of (his/her) cooperation. Actions of the State to trade leniency for cooperation are, however, not to be considered unless it can be shown that the witness knew of these actions.

AUTHORITY:

United States v. Campbell, 426 F.2d 547, 549 (2d Cir. 1970).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

8. Promise Of Leniency Adds Little to Truth-Telling Obligation Of Witness

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

SAMPLE INSTRUCTION:

The promise in the cooperation agreement adds little to the truth-telling obligation imposed by the oath; the prosecutor often has no way of knowing whether the witness is telling the truth or not; the books are not filled with perjury indictments of government witnesses who have gone beyond the facts; an acquittal would not mean that as a matter of course the government would seek such an indictment or even fail to make its promised recommendation of leniency.

AUTHORITIES:

United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

9. 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: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].

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

10. Jury May Consider Motivation For Cooperation

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

SAMPLE INSTRUCTION:

In considering testimony concerning what __________ (name of codefendant/accomplice) supposedly told the witnesses about __________’s (name of defendant) role, you may consider whether __________ (name of codefendant/accomplice) had a reason to make it appear that __________’s (name of defendant) role was greater than it actually was. You may also consider evidence of __________’s (name of codefendant/accomplice) character and reputation for truthfulness.

It is further __________’s (name of defendant) theory that __________’s (name of codefendant/accomplice) testimony against __________’s (name of defendant) was in part prompted by hopes of leniency and expectations that upon (his/her) release (he /she)would __________ (anticipated benefit e.g., have access to the funds he claims were stolen from him).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Evidence: Trial Procedure – Codefendant Evidence.

See also THE SHELLOW COLLECTION: Witness Credibility: Immunity And Immunized Witnesses.

See also THE SHELLOW COLLECTION: Witness Bias: Generally.

RELATED NCJIC MATERIALS:

See NCJIC 25.5 [Witness Immunity].

See also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].