THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Witnesses: Mental Condition

    1.    Witness Mental, Psychiatric Or Psychological Condition: Jury May Consider Whether 
           It Affected Witness’ Ability To Perceive And Capacity For Truthfulness
    2.    Witness’ Prior Mental Illness: Whether Illness Affected Perceptions And Behavior 
           At The Time Of Event
    3.    Mental Condition Of Witness: Differences In Statements And Testimony
    4.    Mental Condition May Impair Witness Credibility
    5.    Witness Credibility: Mental Illness Or Emotional Instability

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

1.    Witness Mental, Psychiatric Or Psychological Condition: Jury May Consider Whether It Affected Witness’ Ability To Perceive And Capacity For Truthfulness

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

    You have heard evidence that a witness,__________ (name of witness) , has been given medical treatment for a mental, psychiatric or psychological condition. If you wish, you may consider that evidence for two purposes:

    First, you may consider whether such mental condition, if you believe it existed at the time, affected __________’s (name of witness) ability accurately to perceive words, actions and events, and thus to recount those words, actions or events accurately on the witness stand. In short, you may consider this evidence in deciding the credibility of __________’s (name of witness) testimony.

    Second, and separately, if you believe this mental condition existed at the time (he/she) testified here, you may consider whether that mental, psychiatric or psychological condition affected __________’s (name of witness) capacity or character for truthfulness, regardless of whether (he/she) perceived accurately the words, actions or events in the past to which (he/she) testified.

    You should use this evidence of __________’s (name of witness) treatment for a mental, psychiatric or psychological condition only for these two limited purposes. Like all other evidence, you may give this evidence exactly such weight on either or both of those issues as you alone think it deserves.

FRE 608(b), 611(b); United States v. Allegretti, 340 F.2d 254, 257 (7th Cir. 1964), cert. denied, 381 U.S. 911 (1965); United States v. Banks, 520 F.2d 627, 630-31 (7th Cir. 1975); United States v. Smith, 789 F.2d 196 (3d Cir. 1986); United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y.), aff'd, 185 F.2d 822 (2d Cir. 1950), cert. denied, 340 U.S. 948 (1951).

See also THE SHELLOW COLLECTION: Witnesses Generally.

See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.

See generally NCJIC 27.2 [Miscellaneous Witness Credibility Factors].

See NCJIC 27.2.16 [Mental Condition May Impair Witness Credibility].

See also NCJIC 31.6.2 [Eyewitness Factors: Emotional/Stress/Mental State Of The Witness].

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

2.    Witness’ Prior Mental Illness: Whether Illness Affected Perceptions And Behavior At The Time Of Event

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

See also THE SHELLOW COLLECTION: Witnesses Generally.

See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.

See generally NCJIC 27.2 [Miscellaneous Witness Credibility Factors].

See NCJIC 27.2.16 [Mental Condition May Impair Witness Credibility].

See also NCJIC 31.6.2 [Eyewitness Factors: Emotional/Stress/Mental State Of The Witness].

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

3.    Mental Condition Of Witness: Differences In Statements And Testimony

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

Compare Wis. Stat. §908.01(d)(4)(a)1 (no requirement prior statement be under oath), with FRE 801(d)(1)(A) (prior statement must have been given in formal proceeding and under oath); see 4 Weinstein's Evidence at 801-13 to -36 (federal oath and formal proceeding requirements included to provide assurances of the reliability of the prior statement). See also, Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) (substantive use of unsworn, prior inconsistent statement without adequate demonstration of reliability violates due process).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Witnesses Generally.

See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.

See also THE SHELLOW COLLECTION: Witnesses: Prior Inconsistent Statements/Impeachment.

RELATED NCJIC MATERIALS:

See generally NCJIC 27.2 [Miscellaneous Witness Credibility Factors].

See NCJIC 27.2.16 [Mental Condition May Impair Witness Credibility].

See also NCJIC 31.6.2 [Eyewitness Factors: Emotional/Stress/Mental State Of The Witness].

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

4.    Mental Condition May Impair Witness Credibility

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

    A witness' mental condition at a time about which the witness testifies affects his or her credibility. It goes to the witness' ability to comprehend, know and correctly recall the truth. It is for you to consider whatever impairment the witness might have had in assessing the witness' credibility and in determining what weight to give to the testimony.

United States v. Partin, 493 F.2d 750, 762-64 (5th Cir. 1974), cert. den., 434 U.S. 903, and United States v. Martino, 648 F.2d 367 (5th Cir. 1981).

United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982); United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).

See also THE SHELLOW COLLECTION: Witnesses Generally.

See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.

See generally NCJIC 27.2 [Miscellaneous Witness Credibility Factors].

See NCJIC 27.2.16 [Mental Condition May Impair Witness Credibility].

See also NCJIC 31.6.2 [Eyewitness Factors: Emotional/Stress/Mental State Of The Witness].

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

5.    Witness Credibility: Mental Illness Or Emotional Instability

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

    There has been evidence that ___________ [witness] has experienced mental illness and emotional instability in the past. Such disorders may affect a witness' character for truthfulness, by distorting the person's ability to distinguish fact from imagined events or details. You alone must decide in the end whether to credit ____________ [witness]'s testimony, and if you do give it credit, what weight exactly to assign it.

United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y.), aff'd, 185 F.2d 822 (2d Cir. 1950), cert. denied, 340 U.S. 948 (1951) [approving psychiatric opinion testimony that the prosecution witness was a psychopathic personality disposed to lying, based on courtroom observations]; Hanger v. United States, 398 F.2d 91, 105-08 (8th Cir. 1968), cert. denied, 393 U.S. 1119 (1969); United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986).

See also THE SHELLOW COLLECTION: Witnesses Generally.

See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.

See generally NCJIC 27.2 [Miscellaneous Witness Credibility Factors].

See NCJIC 27.2.16 [Mental Condition May Impair Witness Credibility].

See also NCJIC 31.6.2 [Eyewitness Factors: Emotional/Stress/Mental State Of The Witness].