THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Witness Credibility: Use Of Drugs By Witness At Time Of Observation
1. Witness Credibility:
Use Of Drugs By Witness At Time Of Observation
2. Informer-Addicts:
Factors To Consider
3. Witness Using Drugs Or
Receiving Drug Treatment
4. Use Of Drugs/Alcohol By
Witness: Greater Caution
5. Drugs/Alcohol Use May
Have Effect On Person's Perception Of Events
And Ability To Recall
6. Drug Prosecutions: Drug
User May Have a Motive For Testifying Falsely
7. Heavy Marijuana Use And
Ability To Recall
8. Drug Use And Ability To
Recall: Limiting Instruction
9. Drug Addict Inherent
Perjurer Where His/Her Own Interests Are Concerned
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Witness Credibility: Use Of Drugs By Witness At Time Of Observation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The testimony of a witness who used narcotic drugs at the time of the events concerning which his testimony has been given should be considered with care because of the possible effect that the use of such drugs may have had upon his ability to recall these events. Further, a witness who has extensively used narcotic drugs, or been addicted to them, may be more suggestible than an ordinary witness and may be more likely to unconsciously attempt to make his testimony conform to the wishes of those who are in a position to reward him for it.
AUTHORITY:
United States v. Hopkins, 518 F.2d 152, 155 (3d Cir. 1975).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
SAMPLE INSTRUCTION # 2
(controlled substance), or been addicted to it, may be more suggestible than an ordinary witness and may be more likely to unconsciously attempt to make (his/her) testimony conform to the wishes of those who are in a position to reward (him/her) for it.A witness who has extensively used __________
AUTHORITY:
United States v. Hopkins, 518 F.2d 152, 155 (3d Cir. 1975).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Informer-Addicts: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If an informer is also a narcotics addict, there are additional reasons why his testimony should be considered with great care. An addict has a constant need for a supply of drugs and for money to support his habit, and also may have abnormal fear of imprisonment in which his supply of drugs might be cut off. These are special circumstances which you may consider in weighing testimony of this kind. You of course may give the testimony such weight as you think proper, after considering all relevant circumstances.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981).
SAMPLE INSTRUCTION # 2:
The testimony of a witness who is or was in the government's pay and was an addict at the time of the events to which he testified must be given careful scrutiny and weighed with great care because the witness may recognize the possibility of being further rewarded by the government. Such rewards could consist of the government recommending a lighter sentence for a crime of which the witness has already been convicted.
The fact that an addict-informer faces the immediate threat of being jailed and thereby kept from access to the drugs to which he is addicted, as well as the prospect of a long term prison sentence, may substantially increase the danger that the addict-informer may color his testimony to as to place guilt on a defendant.
AUTHORITIES:
United States v. Hopkins, 518 F.2d 152, 155 (3rd Cir. 1975); Government of the Virgin Islands v. Hendricks, 476 F.2d 776, 779-780 (3rd Cir. 1973).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981)
SAMPLE INSTRUCTION # 3:
An addict-informer faces the immediate threat of being jailed and thereby kept from access to the drugs to which he is addicted as well as the prospect of a long-term prison sentence and possible retaliation from various persons in the drug trade. These factors substantially increase the danger that the addict-informer may color his testimony so as to place guilt on the defendant.
AUTHORITIES:
Government of Virgin Islands v. Hendricks, 476 F.2d 776, 779-780 (3d Cir. 1973).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 25.7.2 [Cautionary Instruction: Addict Informer].
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Witness Using Drugs Or Receiving Drug Treatment
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that some of the government's witnesses were users of illegal drugs during the time period they testified about, and that some have continued to use drugs more recently. You also have heard testimony that some of these same witnesses have received treatment for drug abuse. Those matters are to be considered for one purpose only: the believability of those witnesses.
Drug use may affect believability two ways. First, it may affect a witness' ability accurately to perceive events at the time they happen, or to report those events accurately later. In other words, it may affect the ability of these witnesses to be truthful, even if they have no desire to testify falsely. Second, because the use and acquisition of illegal drugs may involve deceit and concealment, drug use may in part form the basis for an opinion that other witnesses have about the character for truthfulness of the witness who uses drugs.
I caution you, though, that these witnesses are not on trial so you are not here to determine their guilt; you are concerned only with their credibility. Likewise, the fact that other witnesses may have used drugs has no tendency whatsoever to show that [the defendant] is guilty of any charge.
AUTHORITIES:
FRE 608(b), FRE 405(a) & FRE 405(b); United States v. Kinnard, 465 F.2d 566, 569-70 (D.C. Cir. 1972) (court must give addict-informant instruction on request, cautioning jury of unreliability); Chicago & N.W. Ry. Co. v. McKenna, 74 F.2d 155, 159 (8th Cir. 1934) ("We believe it will be admitted that habitual users of opium, or other like narcotics become notorious liars. The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities;" quoting State v. Fong Loon, 29 Idaho 248, 158 P. 233, 237 (1916)); United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, 454 U.S. 849 (1981) (circumstances of each case determine whether addict-informant cautionary instruction must be given); United States v. Harris, 542 F.2d 1283, 1303 (7th Cir. 1976), cert. denied, 430 U.S. 934 (1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Use Of Drugs/Alcohol By Witness: Greater Caution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The testimony of someone who is shown to have used addictive drugs during the period of time about which the witness testified must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses.
You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.
AUTHORITIES:
5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.16 [Witness's Use of Addictive Drugs] (2001); see also O'Malley, Grenig & Lee (formerly Devitt & Blackmar) Federal Jury Practice and Instructions, §15.05 (2000).
SAMPLE INSTRUCTION # 2:
You have heard evidence that some of the government's witnesses were users of illegal drugs during the time period they testified about, and that some have continued to use drugs more recently. Although you alone are to determine what weight, if any, to give the testimony of these witnesses, keep in mind that their testimony should be considered with greater caution and care than that of other witnesses.
AUTHORITIES:
United States v. Kinnard, 465 F.2d 566, 569-70 (D.C. Cir. 1972) (court must give addict-informant instruction on request, cautioning jury of unreliability); Chicago & N.W. Ry. Co. v. McKenna, 74 F.2d 155, 159 (8th Cir. 1934) ("We believe it will be admitted that habitual users of opium, or other like narcotics become notorious liars. The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities;" quoting State v. Fong Loon, 29 Idaho 248, 158 P. 233 (1916)); United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, 454 U.S. 849 (1981) (circumstances of each case determine whether addict-informant cautionary instruction must be given); United States v. Harris, 542 F.2d 1283, 1303 (7th Cir. 1976), cert. denied, 430 U.S. 934 (1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Drugs/Alcohol Use May Have Effect On Person's Perception Of Events And Ability To Recall
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
There has been testimony that a witness,__________ (name of witness), was a regular user of __________ (alcohol/controlled substance). You may consider that fact in evaluating __________’s (name of witness) credibility, if you wish, for __________ (alcohol/controlled substance) may have an effect on a person's perception of events and on (his/her) ability accurately to recall them later. Because of the dependency it can produce, regular __________ (alcohol/controlled substance) use may also affect a person's motivation for acting in a particular manner and thus may be considered on the question of __________’s (name of witness) truthfulness as well.
AUTHORITIES:
Wilson v. United States, 232 U.S. 563, 567 (1914); United States v. Hopkins, 518 F.2d 152, 154-55 (3d Cir. 1975); United States v. Kearney, 420 F.2d 170, 172-73 (D.C. Cir. 1969); see also Sand et al., Modern Federal Jury Instructions, Instruction 7-9.1 (1989); 3 Weinstein's Evidence ¶ 607[04].
SAMPLE INSTRUCTION # 2:
A witness who was using illegal drugs or who was under the influence of alcohol during the time he or she testified about may not be able to testify accurately about the events. Using these substances may impair the ability of a witness to see, hear or otherwise perceive what is happening clearly and to understand it properly. Using these substances may impair the ability of the witness to remember accurately what the witness thinks he or she has observed. And, using these substances may impair the ability of the witness to recall and express an accurate account of what actually happened. If you believe a witness has been affected by use of illegal drugs or alcohol, you must consider the testimony of that witness with more caution than the testimony of other witnesses.
AUTHORITIES:
United States v. Garner, 581 F.2d 481 (5th Cir. 1978).
SAMPLE INSTRUCTION # 3:
In considering the testimony of the various witnesses in this case, you may consider evidence that during the periods about which they testified these witnesses were using drugs. The use of drugs may in some circumstances affect a person's ability to recall the events which he witnessed and to place these events in a correct sequence. It is for you the jury to determine whether the perceptions or memory of any witnesses were substantially impaired as a consequence of their use of drugs during __________ (year).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982).
SAMPLE INSTRUCTION # 4:
In considering the testimony of __________ (name of witness), you may consider (his/her) use of drugs during the period about which (he/she) testified. The extensive use of drugs may affect a person's ability to perceive events accurately and to recall them without distortion. Further, use of drugs may affect the memory of a witness for events which occurred during the period of drug use.
AUTHORITIES:
United States v. Hopkins, 518 F.2d 152, 155 (3d Cir. 1975); United States v. Kearney, 420 F.2d 170, 173-74 (D.C. 1969).
SAMPLE INSTRUCTION # 5:
In considering the testimony of the various witnesses in this case, you may consider evidence that during the periods about which they testified these witnesses were using drugs. The use of drugs may in some circumstances affect a person's ability to recall the events which he witnessed and to place the events in the correct sequence. It is for you, the jury, to determine whether the perceptions or memory of any witness was substantially impaired as a consequence of his or her use of drugs.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
SAMPLE INSTRUCTION # 6:
The testimony of a witness who used narcotic drugs at the time of the events concerning which his or her testimony has been given should be considered with care because of the possible effect that the use of such drugs may have had upon his or her ability to recall these events.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Drug Prosecutions: Drug User May Have A Motive For Testifying Falsely
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the testimony of witnesses you may consider their use of narcotic drugs. A person who regularly uses narcotic drugs may have a motive for testifying falsely [and for falsely accusing persons of supplying (him/her) with these drugs]. Further, the regular use of narcotic drugs may impair a witness's capacity to observe, remember and recall.
AUTHORITY:
United States v. Kearney, 420 F.2d 170, 173-74 (D.C. Cir. 1969).
SAMPLE INSTRUCTION # 2:
It is defendant __________ (name of defendant) position that __________ (name of witness) either testified falsely or was in error when (he/she) stated that __________ (name of defendant) had directed (him/her) to deliver __________ (controlled substance) to a person waiting (in/at) __________ (location) and that __________ (name of witness) had either been induced to change (his/her) testimony from the version (he/she) had told __________ (name of law enforcement officer) on __________ (date), by promises of benefits and rewards (he /she)would received from the government, or that (his/her) use of drugs had impaired (his/her) memory of the events which had transpired at the __________ (location).
If the evidence you have heard upon this trial creates in your mind a reasonable doubt that it was __________ (name of defendant) who directed this delivery of __________ (controlled substance), then you must find __________ (name of defendant) not guilty of Count(s) ______.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Heavy Marijuana Use And Ability To Recall
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A witness who is shown to have been a heavy user of marijuana may have difficult in accurately remembering events which occurred during time of such heavy usage. Also, the perceptions of the witness may have been distorted during times of heavy marijuana usage.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Drug Use And Ability To Recall: Limiting Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that __________ (name of witness) [, and __________ (name of witness)] [had] [have] used drugs and/or alcohol and that this may have affected [his/her/their] memory of events about which [he/she/they] spoke. It is for you to determine whether [his/her/their] drug and/or alcohol use has affected [his/her/their] memories. You are not to use this evidence for any other purpose.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Curley, Case No. 93-CR-86-S (W.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Drug Addict Inherent Perjurer Where His/Her Own Interests Are Concerned
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A drug addict is inherently a perjurer where (his/her) own interests are concerned.
AUTHORITIES:
Fletcher v. United States, 158 F.2d 321, 322 (D.C. Cir. 1946).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witnesses Generally.
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 27.2.3 [Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation].
See also NCJIC 27.2.4 [Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed].
See also NCJIC 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].
See also NCJIC 31.6.11 [Use Of Drugs Or Alcohol By Eyewitness].