THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Missing Witness
1. Prosecution’s
Failure To Call Witness: Inference Favorable To Defendant
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Prosecution’s Failure To Call Witness: Inference Favorable To Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Ordinarily the state, in a criminal case will call all the witnesses which it has who can give evidence which is probative of the defendant's guilt. When the state has within its employ persons who could give evidence which presumably would be probative of the defendant's guilt, and which would not be cumulative of other evidence presented by other witnesses, and does not call such persons as witnesses, then the question arises why the state did not call them. The law permits the jury to infer that the reason that the state did not call such witnesses is because their testimony would not be helpful to the state, but would help the defendant. This inference is particularly strong where the witness is in the employ of the state and presumably easily available to its process.
In a somewhat similar, but different vein, the state could have called an expert accountant to develop flow charts and financial statements demonstrating the state's theory of this case. Rather than presenting such an expert, the state merely presented summary witnesses to testify to the documents which were in evidence and to the testimony that the jury heard. The jury may, if it wishes, consider the significance of the failure of the state to call an expert accountant as a witness.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Negative Evidence.
See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 36.2.1 [Missing Witness: General Principles And Instructions].
See NCJIC 36.2.2 [Applicability Of Missing Witness Instruction Or Argument].
See NCJIC 36.2.3 [Challenging Missing Witness Instruction].
See NCJIC 36.2.4 [Argument To Jury Regarding Missing Witnesses].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Prosecution’s Failure To Call Actual Preparer Of Document
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The failure of the government to call as a witness the actual preparer of a document may be relevant to the weight or credibility of that document.
AUTHORITY:
United States v. Smith, 609 F.2d 1294, 1302 (9th Cir. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Negative Evidence.
See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 36.2.1 [Missing Witness: General Principles And Instructions].
See NCJIC 36.2.2 [Applicability Of Missing Witness Instruction Or Argument].
See NCJIC 36.2.3 [Challenging Missing Witness Instruction].
See NCJIC 36.2.4 [Argument To Jury Regarding Missing Witnesses].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Failure To Call Witness: Inference Of Unfavorability To Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It was peculiarly within the power of the (government) (defense) to produce __________ (name of witness), who could have given material testimony on an issue in the case. The (government's) (defense's) failure to call __________ (name of witness) may give rise to an inference that his testimony would be unfavorable to it.
You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
AUTHORITY:
Federal Criminal Jury Instructions Seventh Circuit 3.24 [Missing Witness] (West Publishing Co. 1980) [formerly §3.25]; instruction based on United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025 (1976).
SAMPLE INSTRUCTION # 2:
It was peculiarly within the power of the government to produce certain custodians of records for the ___________ (name of law enforcement agency), who could have given material testimony on certain issues in this case. The government's failure to call the custodians of ___________ (name of law enforcement agency) records may give rise to an inference that their testimony would be unfavorable to the government.
You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
AUTHORITIES:
Federal Criminal Jury Instructions Seventh Circuit 3.24 [Missing Witness] (West Publishing Co. 1980) [formerly §3.25]; instruction based on United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025 (1976).
SAMPLE INSTRUCTION # 3:
When the [state] [government] has within its employ a person who could give material and non-cumulative evidence which would be probative of the issues in this case, and the [state] [government] fails to call such a person as a witness, the jury may infer that, had such a [state] [government] employee been called, his testimony would be adverse to the [state] [government].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mattson, Special Court Martial, Coast Guard (U.S.C.G. Group, Milwaukee, Wisconsin, 1976).
SAMPLE INSTRUCTION # 4:
When a party has within (his/her) employ a person who could give material and noncumulative evidence which would be probative of the issues in a case, and fails to call such a person as a witness, the jury may infer that had (he/she) been called his testimony would be adverse to the party who failed to call (him/her).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Mattson, Special Court-Martial, Coast Guard (U.S.C.G. Group, Milwaukee, Wis. 1976).
SAMPLE INSTRUCTION # 5:
If the jury finds the state had within its control a person who could give material and non-cumulative evidence which would be probative of the issues in the case, and the state fails to call such a person as a witness, the jury may infer that had such a state employee been called (his/her) testimony would be adverse to the state.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979) (modified); United States v. Mattson, Special Court Martial, Coast Guard (U.S.C.G. Group Milwaukee, Wisconsin, 1976).
SAMPLE INSTRUCTION # 6:
You are instructed that if the state failed to call a material witness or produce material evidence within its control, and the state failed to give a satisfactory explanation for its failure to call that witness or produce that evidence, then you may infer that the evidence or the witness' testimony would be unfavorable to the state.
AUTHORITIES:
Wis. JI-Criminal 345, modified.
SAMPLE INSTRUCTION # 7:
When the prosecution fails to produce evidence in its possession, that in the normal due course of the case would normally be introduced, and the prosecution fails to give an explanation for his decision not to call the witness, and the prosecution fails to give a satisfactory explanation for his failure to call the witness, then you may infer that the evidence which the witness would give would be unfavorable to the state.
AUTHORITY:
Kink v. Combs, 28 Wis. 2d 65, 74, 135 N.W.2d 789, 795 (1965).
SAMPLE INSTRUCTION # 8:
If the prosecution has failed to call any witness [who could give non-cumulative evidence] who is either in its employ, or whom it could compel to testify, and the prosecution has not called that witness, you may conclude that, had such witness testified, the testimony would be adverse to the prosecution.
AUTHORITIES:
United States v. Valles, 41 F.3d 355, 360 (7th Cir. 1994); United States v. Dahdah, 864 F.2d 55, 60 (7th Cir. 1988); United States v. Keplinger, 776 F.2d 678, 702 (7th Cir. 1985); United States v. Tucker, 552 F.2d 202, 2010 (7th Cir. 1977); United States v. Mahone, 537 F.2d 922, 926-27 (7th Cir.), cert. denied, 429 U.S. 1025 (1976).
SAMPLE INSTRUCTION # 9:
You are instructed that when a party in an action fails to call as a witness a person who has peculiar knowledge of the events and transactions which are the subject matter of the litigation and where his testimony would be material to the issues and would not be cumulative, then, if that witness is either in the control of the party who fails to call (him/her) or bears a special relationship to that party which you could infer that he would be friendly to that party, then you may infer from the failure to call this witness that, had (he/she) been called as a witness, (his/her) testimony would be adverse to the party who failed to call (him/her).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Negative Evidence.
See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.
See also THE SHELLOW COLLECTION: Evidence: Destruction Or Failure To Produce.
RELATED NCJIC MATERIALS:
See NCJIC 36.2.1 [Missing Witness: General Principles And Instructions].
See NCJIC 36.2.2 [Applicability Of Missing Witness Instruction Or Argument].
See NCJIC 36.2.3 [Challenging Missing Witness Instruction].
See NCJIC 36.2.4 [Argument To Jury Regarding Missing Witnesses].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Failure To Grant Immunity And Call Witness: Inference
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Persons who have an involvement in an illegal venture are not equally available to the state and to a defendant because only the state can ask a court to immunize them and thereafter compel them to testify. Accordingly, if they are not called to testify, and their testimony would not be cumulative of that of other witnesses, you may infer, if you wish, that their testimony would be unfavorable to the state.
SAMPLE INSTRUCTION # 2:
An ordinary witness is not under the control of either of the parties to a lawsuit. Under ordinary circumstances, the jury should draw no inference from the failure of either the prosecution or the defense to call a witness who was equally available to both sides. There are certain exceptions, however, to this general rule.
For example, when a witness is under the exclusive control of one of the parties, and that witness would be expected to give non-cumulative testimony concerning the matters at issue, the failure of the party who controls the witness to call (him/her) may create the inference that (his/her) testimony would not be favorable.
Similarly, in a criminal case, only the prosecution can ask that a witness be granted immunity. Accordingly, when a witness refuses to answer upon the grounds of compulsory self-incrimination, (he/she) places himself exclusively within the control of the prosecutor; only the prosecutor can compel (his/her) testimony by asking that (he/she) be granted immunity. The failure of the State to request immunity for __________ (name of witness) permits you to infer that (his/her) testimony would not be favorable to the State.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Negative Evidence.
See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 36.2.1 [Missing Witness: General Principles And Instructions].
See NCJIC 36.2.2 [Applicability Of Missing Witness Instruction Or Argument].
See NCJIC 36.2.3 [Challenging Missing Witness Instruction].
See NCJIC 36.2.4 [Argument To Jury Regarding Missing Witnesses].
See NCJIC 257.5.2 [Denial Of Immunity By Prosecution: Explanatory Instruction].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Money Transaction/Tax Crimes: Failure To Call Defendants' Accountants
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Considering the evidence which has been offered by the government, you may consider that it did not call as witnesses the defendants' accountants. The work papers of these accountants are not privileged and the government could have subpoenaed them and compelled the accountants to disclose what these work papers reflected. The fact that the government did not call such witnesses may be considered by you as one of the circumstances in this case relating to the sufficiency of its evidence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Negative Evidence.
See also THE SHELLOW COLLECTION: Evidence – Weaker Or Less Satisfactory Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 36.2.1 [Missing Witness: General Principles And Instructions].
See NCJIC 36.2.2 [Applicability Of Missing Witness Instruction Or Argument].
See NCJIC 36.2.3 [Challenging Missing Witness Instruction].
See NCJIC 36.2.4 [Argument To Jury Regarding Missing Witnesses].