THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Witnesses Generally
1. Single Witness
2. Weight Of Evidence Not
To Be Decided By Number Of Witnesses
3. Jury Must Only Consider
Testimony Based On Knowledge Of Witness
4. Witnesses Are Presumed
To Tell The Truth
5. Jury May Consider
Whether Witness Complied With The Ordinary Rules
And Customs Of His Or Her
Profession
6. Each Party Has The
Right To Talk With Witnesses Called By The Other
7. Witness Guessing: No
Probative Value
8. Oath To Tell The Truth:
No Presumption That Witness Will Abide By The Oath
9. Witness Must Have
Personal Knowledge
10. Previous Testimony Not Offered
For Truth
11. Witness Claiming Privilege:
Inference
12. Witness Claiming Privilege: No
Inference Against Defendant
13. Witness Claiming Privilege:
Marital Privilege
14. Speculation By Witness; Jury Must
Only Consider Testimony Based On Knowledge
Of Witness
15. Duty Of Attorney To Interview
Witnesses
16. Number Of Witnesses
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Single Witness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all of the evidence upon which the proof of which such fact depends.
AUTHORITY:
CALJIC No. 2.27 [modified]; California v. Rincon-Pineda, 14 Cal. 3d 864, 123 Cal. Rptr. 119, 133-34, 538 P.2d 247, 261 (1975) [holding that a special instruction must be given sua sponte by the trial court to protect the defendant's rights in cases in which the prosecution is based upon the uncorroborated testimony of a single witness].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 95.4 [Perjury: Two Witness Rule].
See NCJIC 257.3.2.1 [Entrapment: Single Witness Sufficient].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Weight Of Evidence Not To Be Decided By Number Of Witnesses
See THE SHELLOW COLLECTION: Evidence Generally -- Weight Of Evidence Not To Be Decided By Number Of Witnesses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Jury Must Only Consider Testimony Based On Knowledge Of Witness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Court has permitted a number of witnesses to testify to their understanding of events, intentions, motivations and other matters related to the case. This testimony can only be considered by the jury if the jury concludes that these understandings were based on the witnesses' knowledge. An understanding based upon speculation, intuition, or other evidence which is not reliable, cannot be considered by the jury in assessing the weight of the state's case.
AUTHORITIES:
FRE 602; Robinson v. State, 702 A2d 741, 750 (MD 1996) [personal knowledge of witness must be sufficient to form a relevant and testimonial bases for the expression of an opinion]; U.S. v. Allen, 10 F3d 405, 414 (7th Cir. 1993); Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1190, 1212 (D.C. Pa. 1981).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Croft, No. 83-CR-11 (W.D. Wis. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Witnesses Are Presumed To Tell The Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
All witnesses are presumed to tell the truth. If you can reconcile the evidence upon this presumption, you should do so.
AUTHORITIES:
United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976 (1974); Cupp v. Naughten, 414 U.S. 141 (1973).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Jury May Consider Whether Witness Complied With The Ordinary Rules And Customs Of His Or Her Profession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the weight to be given to the testimony of a witness, you may consider, if you wish, whether the evidence indicates that the witness complied with the ordinary rules and customs of his or her profession. If the testimony of a witness indicates a departure from accepted procedures, and the witness is unable to explain this departure to your satisfaction, you may consider this in determining what weight to give to his or her testimony.
SAMPLE INSTRUCTION # 2:
You are instructed that in considering what weight, if any, to give to the testimony of a witness, you may consider, although you need not do so, whether or not the facts of the case indicate that the witness complied with the ordinary rules and customs of his profession. If the testimony of a witness indicates that he departed from accepted procedures, and he is unable to explain this departure to your satisfaction, you may consider this in determining what weight to give to his testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Substance Testing/Identification Instructions – Defense Theory: Tests Not Properly Performed
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Each Party Has The Right To Talk With Witnesses Called By The Other
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A witness is not the property of either the government or of the defendant. Each party has the right to talk with witnesses called by the other, if the witness wishes to talk with the lawyer.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Witnesxs Bias: Generally – Refusal To Speak To Defense Counsel As Witness Bias.
See also THE SHELLOW COLLECTION: Prosecution Misconduct: Interfering With Access To Witnesses.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Witness Guessing: No Probative Value
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If a witness testifies that he is guessing as to the occurrence or nonoccurrence of an event, such a guess has no probative value and may not be considered by you in determining the facts in this case.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Cox, No. H-1065 (Circuit Court, Milwaukee County); State v. Dronso, No. H-9460 (Circuit Court, Milwaukee County, 1975); State v. Bailey, No. H-5568 (Circuit Court, Milwaukee County).
SAMPLE INSTRUCTION # 2:
The guess of a witness has no probative value and is not competent evidence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Oath To Tell The Truth: No Presumption That Witness Will Abide By The Oath
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the testimony of a witness, you may consider (his/her) attitude toward the oath (he/she) has taken to tell the truth. Any person who takes an oath to testify truthfully is competent to testify in a federal court in the United States. Merely because a witness has taken an oath to testify truthfully does not create the presumption that (he/she) will abide by that oath.
AUTHORITIES:
United States v. Pincione, 565 F.2d 404 (6th Cir. 1977); United States v. Schwartz, 398 F.2d 464 (7th Cir. 1968), cert. denied, 393 U.S. 1062 (1969).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Witness Must Have Personal Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that under the Federal Rules of Evidence, a witness may only testify to those matters about which he has personal knowledge. Thus, if in your consideration of the evidence in this case, we determined that a witness did not have personal knowledge of a matter about which he or she testified, you may disregard such testimony.
AUTHORITIES:
FRE 602.
SAMPLE INSTRUCTION # 2:
With certain exceptions, a witness may testify only to matters of which he or she has personal knowledge. If it develops in the course of a trial that a witness has repeated statements made by another and the evidence convinces you that the witness was not present when these statements were made, then you may disregard the testimony of that witness.
AUTHORITY:
Wis. Stat. §906.02.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 85.2.6 [Criminal Street Gangs: Expert's Testimony Must Be Based On Personal Knowledge Or Actual Evidence].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Previous Testimony Not Offered For Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Court has permitted you to hear excerpts of the testimony of __________ (name of witness) at the trial of __________ (name of defendant). This testimony was not offered for its truth and the jury may not consider factual assertions in this testimony as true or draw inferences from such assertions.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Evidence: Tapes And Transcripts.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
See also NCJIC 24.2.2.3 [Jury Should Not Consider Demeanor Of Person Reading Prior Testimony Into The Records].
See also NCJIC 24.2.7.1 [Transcript Testimony From Previous Trial, Preliminary Hearing, Deposition, Etc.].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Witness Claiming Privilege: Inference
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
When a witness has previously been asked a question which implies an answer and the witness refused to answer the question on the grounds that a truthful answer would have tended to incriminate (him/her), the jury may infer that, had the witness answered, (he/she) would have given the answer implied by the question.
The jury may treat this implied answer as though it were given by the witness in this trial.
AUTHORITIES:
Baxter v. Palmigiano, 425 U.S. 308 (1976) (adverse inference may be drawn against party who exercises privilege against self-incrimination in civil case); but cf. United States v. Harris, 542 F.2d 1283 (7th Cir. 1976).
SAMPLE INSTRUCTION # 2:
The defendant subpoenaed __________ (name of witness) as a witness in this case[, and required that (he/she) bring with (him/her) certain __________ (records, e.g., financial records) which it was assumed were in (his/her) possession]. __________ (name of witness) has refused to be a witness in this case on behalf of the defendant upon the grounds that, if (he/she) should testify, (his/her) answers would tend to incriminate (him/her).
While there is no presumption that __________ (name of witness) is guilty of any offense because (he/she) asserted (his/her) privilege against self-incrimination, you may from this assertion draw such inferences as you believe to be reasonable under the circumstances.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Fifth Amendment Issues.
RELATED NCJIC MATERIALS:
See NCJIC 25.16 [Exercise Of Privilege By Witness].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 300.23 [Privilege Against Self Incrimination (5th Amendment)].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Witness Claiming Privilege: No Inference Against Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Ordinarily a person who is on trial for a crime will subpoena all witnesses whose testimony would tend to clear (him/her). However, there are circumstances in which witnesses who are subpoenaed have a valid basis for refusing to testify. In this instance, __________ (name of witness) was subpoenaed by the defense, and has refused to testify upon the grounds that (his/her) testimony would incriminate (him/her).
Accordingly, while you may not draw any inference of __________’s (name of witness) guilt from (his /her)assertion of (his/her) privilege against compulsory self-incrimination, neither may you weigh, in the scales of your deliberations, __________’s (name of defendant) inability to call __________ (name of witness) as a witness.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
See also THE SHELLOW COLLECTION: Fifth Amendment Issues.
RELATED NCJIC MATERIALS:
See NCJIC 25.16 [Exercise Of Privilege By Witness].
See generally NCJIC Chapter 27: Witness Credibility.
See generally NCJIC 300.23 [Privilege Against Self Incrimination (5th Amendment)].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Witness Claiming Privilege: Marital Privilege
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that the defendant's (husband/wife) is presently charged with the same crime for which the defendant is on trial. Neither the defendant nor the prosecutor could compel (him/her) to testify against (his/her) will.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Schaffer, No. I-4977, (Circuit Court, Milwaukee, County).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See NCJIC 20.11 [Prosecutor Comment On Assertion Of Marital Privilege].
See generally NCJIC 25.16 [Exercise Of Privilege By Witness].
See NCJIC 25.16.4 [No Adverse Inference From Exercise Of Marital Privilege].
See NCJIC 25.16.15 [Marital Privilege: Communications That Contravene Marital Harmony Are Not Shielded].
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Speculation By Witness; Jury Must Only Consider Testimony Based On Knowledge Of Witness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Speculation by a witness is not the same as personal knowledge or observation. Speculation has no probative value and the jury may not consider it as evidence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Credibility: Generally & Miscellaneous.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 27: Witness Credibility.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Duty Of Attorney To Interview Witnesses
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is proper, and in fact it may be the duty of an attorney, to interview any person who may be called as a witness in the case.
SAMPLE INSTRUCTION # 2:
It is proper, and in fact it may be the duty of the prosecutor and defense counsel to [seek to] interview any person who may be called as a witness in the case.
AUTHORITIES:
Seventh Circuit Committee 1.07 [Attorney Interviewing Witness] [formerly 1.06, modified (1980)]; see Committee Comment; ABA Standards, The Prosecution Function 3.1.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985) [bracketed material added]; United States v. Mullins, No. H CR 85-21 (N.D. Ind. 1985).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Witness Bias: Generally – Refusal To Speak To Defense Counsel As Witness Bias.
RELATED NCJIC MATERIALS:
See NCJIC 16.13.2 [Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial].
See generally NCJIC 295.3.2 [Ineffective Assistance Of Counsel At Trial].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Number Of Witnesses
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The weight to be given to any particular evidence is not [necessarily] determined by the number of witnesses testifying on behalf of each side. You are to consider all the evidence in the case in determining the credibility of witnesses. You may find that the testimony of a smaller number of witnesses for one side is more credible than the testimony of a greater number of witnesses for the other side.
AUTHORITIES:
Federal Criminal Jury Instructions of the Seventh Circuit 3.28 (1980) [defendant requests that the bracketed word be omitted, as it tends improperly to suggest that the number of witnesses may, on occasion, determine the weight to be given particular evidence]; Inst. 3.28 was replaced by 1.09 [Number of Witnesses].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mullins, No. H CR 85-21 (N.D. Ind. 1985).
RELATED NCJIC MATERIALS:
See NCJIC 27.7.7 ["Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses].