THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Witness Intimidation

    1.    Jury May Consider Attempts to Influence Witnesses
    2.    Witnesses: Intimidation By Government Agents
    3.    Witness Intimidation: Evidence That Defendant Discussed Harming Witness 
           Admissible Only As To Consciousness Of Guilt

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    In weighing the testimony of a witness, you may consider, if you wish, the extent to which either party may have influenced or attempted to influence the testimony of that witness. The testimony of a witness could be influenced by promises, threats, or other inducements. You may consider the circumstances under which the witness was interviewed or interrogated and whether the witness felt intimidated by the interrogation techniques and was still frightened during his testimony.

RELATED NCJIC MATERIALS:

See generally NCJIC 77.13 [Witness Intimidation].

See also NCJIC 36.1.2 [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].

See also NCJIC 36.1.3 [Instruction Regarding Intimidation Of Witnesses By Prosecution Investigator].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

    In considering the testimony of any witness, you may consider whether he was intimidated or threatened by agents of the federal government. It is not necessary for you to find that such agents intended to threaten the witness, but only that the witness believed that he was threatened and that harm would come to him if he did not testify in accordance with their wishes. If you conclude that any witness believed that he was threatened or intimidated by agents of the federal government, then you are entitled to take this state of mind into consideration in determining what weight, if any, to give to the testimony of the witness.

SAMPLE INSTRUCTION # 2:

    There was some evidence about an effort or threat by an ___________ (type of law enforcement agency officer e.g., FBI agent) to one of the witnesses who ended up not testifying under the evidence because of a threat. That is not substantive evidence as to what the witness would have said if (he/she) hadn't taken the Fifth in response to what was said by the ___________ (type of law enforcement agency officer e.g., FBI agent) , but if you find there was a threat as indicated, you may consider that as evidence of a general weakness in the case the ___________ (type of law enforcement agency) had worked up. It's not, however, substantive proof of any fact in the case.

United States v. Oliver, No. C-CR-78-59 (W.D.N.C. 1979).

    In considering the significance of certain statements allegedly made by witnesses to officers of the ___________ (name of law enforcement agency), you may consider, if you wish, the mental state of the witness at the time that (he/she) was interviewed by officers of the ___________ (name of law enforcement agency). If you believe that the interview was conducted under circumstances which were inherently coercive or inherently threatening or that the witness at the time of the interview was frightened by such officers, then you may consider these factors in determining whether the statements attributed to the witness were freely given by (him/her).

United States v. Higgans, No. 73-CR-102 (E.D. Wis. 1973).

RELATED NCJIC MATERIALS:

See generally NCJIC 77.13 [Witness Intimidation].

See also NCJIC 36.1.2 [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].

See also NCJIC 36.1.3 [Instruction Regarding Intimidation Of Witnesses By Prosecution Investigator].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

    Evidence that the defendant discussed harming a witness is a circumstance which, if proven, may be considered as showing a consciousness of guilt on the part of the defendant. However, you may not consider this evidence for any other purpose such as to conclude that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character with respect to the other charges in this case.

    In evaluating any evidence that the defendant discussed harming a witness, you must first decide whether or not you believe this evidence is accurate. If you do not believe it to be accurate, you must ignore it. You also may consider that there may be reasons--fully consistent with innocence--that could cause a person to discuss harming a witness. For example, a person who has committed no crime may act in that manner out of fear of an unjust conviction, a desire to retaliate against a lying witness, or to try to impress others by appearing tough. You must also consider that feelings of guilt do not necessarily reflect actual guilt.

    Whether or not this evidence causes you to find a consciousness of guilt on the defendant's part, and the significance, if any, of that consciousness of guilt is entirely up to you as the sole judges of the facts of this case. You must keep in mind that the defendant is not on trial for any acts or crimes not alleged in the Information. Nor may a defendant be convicted of the crimes charged even if you were to find that he committed other crimes--even crimes similar to the one in the Information.

RELATED NCJIC MATERIALS:

NCJIC 26.2.2 [Witness Afraid To Testify: Limiting Instruction].

NCJIC 34.8.1 [Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction].