THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Witnesses: Prior Inconsistent Statements/Impeachment (See also Impeachment)
1.
Prior Statements: Credibility
2. Prior Statements: Jury
May Conclude That Prior Statements Are True And
Present Testimony Is False
3. Prior Inconsistent
Statements: Jury Can Accept Either Version Or Neither Version
4. Discrepancies In
Testimony: Limiting Instruction
5. Prior Inconsistent
Statements: Conditions For Consideration
6. Prior Inconsistent
Statements: Jurors Are Sole Judges Of Witness Credibility
7. Jury May Consider
Contradictions In Assessing Weight To Be Given To Testimony
8. Previous Inconsistent
Statement May Be Considered For Its Truth
9. Witness Credibility:
Past Contradictory Statements
10. Impeachment By Prior Statement
11. Impeachment By Prior Inconsistent
Statements
12. Impeachment By Prior Unsworn
Statements
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Prior Statements: Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence that on some former occasion a witness made a statement inconsistent with (his/her) testimony in this case may be considered by you only in determining the credibility of the witness and not to establish the truth of the matters contained in that prior statement.
AUTHORITIES:
Seventh Circuit Pattern Instructions 3.09 [Prior Inconsistent Statements--Witnesses] [formerly 3.18]; United States v. Hall, 109 F.3d 1227, 1237 (7th Cir. 1997); U.S. Const. XIV; Wis. Const. Art. I, §8(1); Ticey v. Peters, 8 F.3d 498 (7th Cir. 1993); Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982); United States v. Leslie, 542 F.2d 285 (5th Cir. 1976); United States ex rel. White v. Lane, 785 F. Supp. 768 (N.D. Ill. 1992).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Jackson, No. 89-CR-62 (E.D. Wis. 1990).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Prior Statements: Jury May Conclude That Prior Statements Are True And Present Testimony Is False
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a witness has made a statement or has testified inconsistently with his or her testimony upon this trial, the witness may be less credible than one who has made no such prior inconsistent statements. Also, the jury may conclude, if it wishes, that the prior statements are true and that the present testimony is false.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Prior Inconsistent Statements: Jury Can Accept Either Version Or Neither Version
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have heard evidence that on an earlier occasion, a witness said something different than what the witness said here at trial. You may consider that evidence for two purposes.
First, you may consider whether that evidence suggests that the witness is a less believable person either because the witness cannot remember accurately the events described or because the witness chooses not to describe those events accurately. In this way, the inconsistent statements may help you to decide how much weight to give all of that witness' testimony.
Second, you may consider the earlier statement itself as actual evidence to prove the point at issue, just as the statement at trial is actual evidence. In that case, it is for you alone to decide whether you accept the witness' version at trial, or the earlier version, or neither.
AUTHORITY:
Wis. Stat. §906.13; Gelhaar v. State, 41 Wis. 2d 230, 163 N.W.2d 609, 612-14 (1969), cert. denied, 399 U.S. 929 (1970).
SAMPLE INSTRUCTION # 2:
If a witness under oath repeatedly contradicts his prior testimony, also under oath, you may disregard all of his testimony upon this trial.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Discrepancies In Testimony: Limiting Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a witness testifies and this testimony is inconsistent with what the witness has stated on some previous occasion, this inconsistency may be considered by the jury in weighing the credibility of the witness, but for this purpose only. The previous statement cannot be considered for its truth.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Prior Inconsistent Statements: Conditions For Consideration
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that some witnesses made statements at times before trial that may be inconsistent with their testimony here at trial. You may consider as evidence those earlier statements only if you conclude first that the earlier statement was made; second that it was inconsistent with that witness' testimony at trial; and third, the person was able to be cross-examined about the statement at trial.
If you find all three conditions, you may consider the earlier statement as well as the statement at trial, giving each just such weight as you think they deserve.
AUTHORITIES:
Wis. Stat. §908.01(4)(a)1; Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 838 (1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Prior Inconsistent Statements: Jurors Are Sole Judges Of Witness Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Evidence has been received to the effect that witnesses made prior statements which are inconsistent with their testimony in Court during this trial. It is for you, the jury, to determine the weight and credence to be given to the witness-stand testimony and the prior statement. [The jurors are the sole judges of the credibility of witnesses.]
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982) [bracketed material omitted]; United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); State v. Stevens, No. 87-FE-15 (Manitowoc County, November, 1988).
SAMPLE INSTRUCTION # 2:
Evidence has been received to the effect that a witness other than the defendant made a prior statement which is inconsistent with that witness's testimony in court during this trial. It is for you, the jury, to determine the weight and credence to be given the witness-stand testimony and the prior statement. The jurors are the sole judges of the credibility of witnesses.
AUTHORITIES:
Gervais v. Kostin, 48 Wis. 2d 190, 179 N.W.2d 828, 832 (1970); Ianni v. Grain Dealers Mut. Ins. Co., 42 Wis. 2d 354, 360, 166 N.W.2d 148, 151 (1969).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mattson, Special Court-Martial, Coast Guard (U.S.C.G., Group Milwaukee, Wisconsin, January, 1976);United States v. Robinson, et al., No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Jury May Consider Contradictions In Assessing Weight To Be Given To Testimony
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If a witness has testified under oath on two separate occasions, and on these occasions has testified to the same matters, but with material differences as to the events he describes, then you may consider these contradictions in assessing the weight, if any, you shall give to the testimony of such witness.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Previous Inconsistent Statement May Be Considered For Its Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
During the cross-examination of several witnesses, the questioner established that the witness had made a previous statement concerning the same subject to the police. Sometimes this previous statement was consistent with the testimony of the witness; other times it was inconsistent with that testimony.
The law of __________ (state permitting use of statement) treats previous inconsistent statements differently than previous consistent statements. A previous inconsistent statement may, should the jury choose, be considered for its truth. A previous consistent statement on the other hand has no probative value and may only be considered as evidence that the statement was made.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Witness Credibility: Past Contradictory Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
CAVEAT: Use of the term "accomplice" may be prejudicial to the defendant. See NCJIC 25.6.6 [No Reference To The Term "Accomplice"].
SAMPLE INSTRUCTION:
A witness who has made contradictory accusations to an accomplice at times (he/she) did not know that (his/her) words were overheard by the police may be less credible in repeating one of these accusations at later times.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Impeachment.
RELATED NCJIC MATERIALS:
See NCJIC 26.3 [Prior Inconsistent Statements].
See NCJIC Chapter 27: Witness Credibility.
See NCJIC 305.16.10 [Prior Inconsistent Statements].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Impeachment By Prior Statement
See THE SHELLOW COLLECTION: Witnesses – Impeachment: Impeachment By Prior Statement.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Impeachment By Prior Inconsistent Statements
See THE SHELLOW COLLECTION: Witnesses – Impeachment: Impeachment By Prior Inconsistent Statements.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Impeachment By Prior Unsworn Statements
See THE SHELLOW COLLECTION: Witnesses – Impeachment: Impeachment By Prior Unsworn Statements.