THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Witnesses: Law Enforcement Officers And Agents
1.
Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness
2. Testimony Of Police
Officers: Counsel Attack On Credibility
3. Failure To Follow
Agency Policy Or Procedures As Affecting Credibility
4. Government Agents:
Failure To Follow Generally Accepted Auditing Standards
Or Generally Accepted
Accounting Principles
5. Narcotics Agent And
Other Agents Not Ordinary Witnesses; May Have Direct
Interest In Outcome Of The
Case
6. Jury May Consider
Whether Testimony Us Affected By Death Of Fellow Officer
7. Jury Not To Consider
Officers’ Participation In Investigation In Determining What
Weight To Give
Their Opinions Concerning The Defendant’s Intent
8. Law Enforcement
Officers As Defendants In Civil Suit; Interest In Outcome Of
Criminal Case
9. Jury May Consider
Whether Training Manual Advises Law Enforcement Witness
To Testify Falsely
10. Jury May Consider Thoroughness Or
Lack of Thoroughness Of Investigating Officers
11. Jury Many Consider Failure To
Gather Evidence Or Investigative Facts Favorable
To The Defendant
12. Law Enforcement Officer Notes
13. Loss Of Law Enforcement Officer
Notes
14. Intentional Destruction Of Report
Affecting Credibility
15. Officer’s Statement Concerning
Guilt Of Defendant Should Be Disregarded
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have heard the testimony of law enforcement officers. The fact that a witness is employed by the state or federal government as a law enforcement officer does not mean that (his/her) testimony necessarily deserves more or less weight than that of an ordinary witness.
In fact, the point is that (he/she) is an ordinary witness. You should consider the same questions of bias, stake in the outcome, behavior while testifying, strength of recollection, experience, and logical soundness of (his/her) testimony that you consider with any other witness.
It is your decision, after reviewing all the evidence, whether to accept the testimony of the law enforcement witness, and exactly what weight, if any, to give it.
AUTHORITIES:
Bush v. United States, 375 F.2d 602 (D.C. Cir. 1967).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Greene, Criminal No. 92-32 (S.D. Iowa 1992); similar instruction given in United States v. Lamon, No. 89-CR-134 (E.D. Wis. 1989).
SAMPLE INSTRUCTION # 2:
In weighing the testimony of a police officer, you should apply the same standards as you apply to the testimony of any other witness. The fact that a witness is a police officer does not make (his/her) testimony any more credible than the testimony of any other witness.
AUTHORITIES:
United States v. Reid, 410 F.2d 1223, 1227-1228 (7th Cir. 1969); United States v. Bush, 375 F.2d 602, 605 n.6 (D.C. Cir. 1967).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Strube, J-1479 (Circuit Court, Milwaukee County); State v. Loveday, H-7717 (Circuit Court, Milwaukee County, 1973); State v. Cox, H-1065 (Circuit Court, Milwaukee County); State v. Rucker, G-4705 (Circuit Court, Milwaukee County).
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Testimony Of Police Officers: Counsel Attack On Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard the testimony of law enforcement officials. The fact that a witness may be employed by the government as a law enforcement official does not mean that his or her testimony is necessarily deserving of more or less consideration or greater or lesser weight than that of an ordinary witness.
At the same time it is quite legitimate for defense counsel to try to attack the credibility of a law enforcement witness.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Blas, No. 89-CR-232 (E.D. Wis. 1990) (Curran, J.); United States v. Lamon, No. 89-CR-134 (E.D. Wis. 1989) (Curran, J.).
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Failure To Follow Agency Policy Or Procedures As Affecting Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Employees of law enforcement agencies may be required by agency policy manuals to follow certain procedures in the development of a criminal case and the preservation of evidence. While the failure of such an employee to follow the rules of (his/her) agency is not a basis for excluding (his/her) testimony, you may consider it in determining the credibility of such testimony and the weight to be given to it.
SAMPLE INSTRUCTION # 2:
Employees of law enforcement agencies may be required by agency policy manuals to follow certain procedures, such as receipts in the chain of custody of drugs and tape recordings, in the development of a criminal case and the preservation of evidence. While the failure of such an employee to follow the rules of his agency is not a basis for excluding his testimony, you may consider it in determining the credibility of such testimony and the weight to be given to it.
AUTHORITY:
United States v. Weiner, 578 F.2d 757, 785 n. 26 (9th Cir. 1978) [suitably modified].
SAMPLE INSTRUCTION # 3:
Employees of law enforcement agencies may be required by agency policy manuals to follow certain procedures in the development of a criminal case and the preservation of evidence. While the failure of such an employee to follow the rules of his agency is not a basis for excluding his testimony, you may consider it in determining the credibility of such testimony and the weight to be given to it.
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: Generally.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Substance Testing/Identification Instructions – Defense Theory: Tests Not Properly Performed.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Government Agents: Failure To Follow Generally Accepted Auditing Standards Or Generally Accepted Accounting Principles
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In weighing the evidence which has been offered by the government you may consider whether there is any evidence that the agents of the government who participated in the investigation and presentation of its evidence followed generally accepted auditing standards or generally accepted accounting principles.
If there is evidence that the agents knew of the existence of such standards and principles and followed them this might lend weight to the evidence presented by the government and to the opinions of its experts. If, on the other hand, there is no evidence that the investigators or experts followed generally accepted auditing standards or generally accepted accounting principles, then this also may be taken into account in determining what weight should be given to the testimony and exhibits of these witnesses.
AUTHORITY:
United States v. Weiner, 578 F.2d 757, 785 n. 26 (9th Cir. 1978) [suitably modified].
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: Generally.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Substance Testing/Identification Instructions – Defense Theory: Tests Not Properly Performed.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Narcotics Agent And Other Agents Not Ordinary Witnesses; May Have Direct Interest In Outcome Of The Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A narcotics agent is not an ordinary witness. In many instances (he/she) has a direct interest in the outcome of a criminal case. If you believe that any of the narcotics agents who testified in this case has a direct interest in the outcome of this case, then you may consider whether this interest has influenced (his/her) testimony.
SAMPLE INSTRUCTION # 2:
An [agent] [detective] is not an ordinary witness. In many instances he has a direct interest in the outcome of a criminal case. If you believe that any of the [agents] [detectives] who have testified in this case have a direct interest in the outcome of this case, then you may consider whether this interest has influenced his or her testimony.
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: Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Future Civil Action As Evidence Of Bias.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See NCJIC 27.6.3 [Testimony Of Police Officers And Other Officials: Professional Interest As Credibility Factor].
See NCJIC 27.6.4 [Bias Of Police Or Government Witness: Potential Benefit From Forfeiture In Drug Case])
See also NCJIC 88.6.3.6 [Police Officer Expert: Possession for Sale -- Bias Due To Forfeiture].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Jury May Consider Whether Testimony Us Affected By Death Of Fellow Officer
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining what weight to give to the testimony of law enforcement officers, you may consider, if you wish, whether their testimony was affected in any way because a fellow law enforcement officer died in this occurrence.
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Jury Not To Consider Officers’ Participation In Investigation In Determining What Weight To Give Their Opinions Concerning The Defendant’s Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In weighing the opinion testimony of government agents who participated in the investigation of __________ (name of defendant), you must not consider their participation in the investigation in determining what weight to give to their opinions concerning __________’S (name of defendant) intent.
AUTHORITIES:
United States v. Saulter, 60 F.3d 270, 277 (7th Cir. 1995), citing United States v. Cruz, 981 F.2d 659, 664 (2d Cir. 1992); United States v. Lipscomb, 14 F.3d 1236, 1239-43 (7th Cir. 1994); United States v. Brown, 7 F.3d 648, 655 (7th Cir. 1993); United States v. DeSoto, 885 F.2d 354, 360-61 (7th Cir. 1989); United States v. Foster, 939 F.2d 435, 452 (7th Cir. 1991).
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Law Enforcement Officers As Defendants In Civil Suit; Interest In Outcome Of Criminal Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The police witnesses who testified in this matter are potential defendants in a civil suit for damages. As such, they have a financial interest in the outcome of this lawsuit. In determining the weight to be given to the testimony of these witnesses, it is proper for you to take such interest into consideration. You are to give to their testimony such weight as under all of the circumstances you think it is entitled to. You have a right to consider their situation, their interest in the result of the trial, the temptations which may exist under the circumstances to testify falsely, and everything appearing in the case bearing upon their credibility, and to give to their testimony just such weight as you think it is entitled to, no more and no less.
AUTHORITIES:
Vogel v. Herzfeld-Phillipson Co., 148 Wis. 573, 134 N.W. 141 (1912).
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: Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Future Civil Action As Evidence Of Bias.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See NCJIC 27.6.3 [Testimony Of Police Officers And Other Officials: Professional Interest As Credibility Factor].
See NCJIC 27.6.4 [Bias Of Police Or Government Witness: Potential Benefit From Forfeiture In Drug Case])
See also NCJIC 88.6.3.6 [Police Officer Expert: Possession for Sale -- Bias Due To Forfeiture].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Jury May Consider Whether Training Manual Advises Law Enforcement Witness To Testify Falsely
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There has been evidence that the basic training manual for __________ (type of law enforcement employee e.g., drug enforcement administration chemists) advises these employees that under some circumstances it may be appropriate to testify falsely on cross-examination concerning whether __________ (testimony e.g., the chemist recognizes a treatise as authoritative). In weighing the testimony of the __________ (type of law enforcement employee e.g., chemists) who have testified in this case, you may consider whether their testimony was prompted by this advice.
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Jury May Consider Thoroughness Or Lack of Thoroughness Of Investigating Officers
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In assessing the weight of the evidence, you may consider, if you wish, evidence of the thoroughness or lack of thoroughness of investigating officers.
SAMPLE INSTRUCTION # 2:
In considering whether the prosecution has proven __________ (name of defendant) guilty of any of the charges in the indictment, you may consider the thoroughness of the prosecution's investigation. You may also consider whether the prosecution's investigators employed or failed to employ standard investigative techniques.
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
See also NCJIC 36.1.11 [Witness Credibility: Consideration Of Defects In Investigation].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Jury May Consider Failure To Gather Evidence Or Investigative Facts Favorable To The Defendant Officers
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The intentional failure to gather evidence or investigative facts favorable to the defendant may be considered by you in determining the weight of the government's case against an accused.
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: Generally.
See THE SHELLOW COLLECTION: Prosecution Misconduct: Refusal To Follow Exculpatory Leads As Evidence Of Bias.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
See also NCJIC 36.1.11 [Witness Credibility: Consideration Of Defects In Investigation].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Law Enforcement Officer Notes
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard testimony from government agents in this case. At times, those government agents testified to statements that other witnesses allegedly made to them. You also heard those government agents testify that they reviewed their notes and reports to prepare for their testimony, and used those notes and reports to refresh their recollection.
Government agents' notes do not routinely constitute substantially verbatim statements of the witness. There has been no allegation that the agents' notes were adopted or approved in this case, and it is the government's contention that its witnesses did not adopt or approve statements contained in the notes or reports of government agents and attributed to those witnesses.
AUTHORITIES:
Government's Response to Defendant Martino's Motion for In Camera Inspection of Agents' Notes, at 1-2 (October 12, 1988); 18 USC 3500.
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Loss Of Law Enforcement Officer Notes
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A prosecution witness in this case testified that (he/she) was questioned by a police officer and that a police officer wrote down the answers which (he/she) gave. The police officer represented to the Court that (he/she) does not have these notes and no witness has testified concerning their disposition. From this you may infer, although you need not do so, that had these notes been produced they would contradict the witness' testimony upon this trial.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Rucker, G-4705 (Circuit Court, Milwaukee County).
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: Generally.
See also THE SHELLOW COLLECTION: Evidence – Missing/Lost/Destroyed Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 36.1 Destroyed Or Lost Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Intentional Destruction Of Report Affecting Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You may consider the intentional destruction of (his/her) report by an ___________ (name of law enforcement agency) [officer] [agent] in weighing the credibility of the [officer] [agent].
AUTHORITY:
United States v. Bastanipour, 697 F.2d 170, 174 (7th Cir. 1982).
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: Generally.
See also THE SHELLOW COLLECTION: Evidence – Missing/Lost/Destroyed Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].
See also NCJIC 36.1 Destroyed Or Lost Evidence.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Officer’s Statement Concerning Guilt Of Defendant Should Be Disregarded
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
During the cross-examination of Detective _________, (he/she) stated that _________ (name of defense attorney) knew that __________ (name of defendant) was one of the (men/women) Detective _________ saw on __________ (date), at __________ (crime scene location, etc.).
Detective _________ should not have made this statement. If you believe that (he/she) made this statement, knowing that it was not proper to do so and made it for the purpose of prejudicing __________ (name of defendant) in the minds of the jury, then you may consider this in weighing the credibility of Detective _________ and the truthfulness of (his/her) testimony. If, on the other hand, you believe that Detective _________ made this statement out of frustration or exasperation and did not do so with an intent to influence the jury, then you probably should draw no inference from (his/her) having made it.
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: Generally.
RELATED NCJIC MATERIALS:
See NCJIC 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].
See also generally NCJIC 27.6 [Police Officers And Governmental Employees].