THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Witness Perjury (See also Perjury)
1.
Testimony Of Perjurer Must Be Considered With Caution
2. Testimony Of Person
Giving False Affidavit Or Testimony Must Be Considered
With Caution
3. Jury May Disregard All
Uncorroborated Testimony If They Find Witness Testified
Falsely To Material Fact
4. Testimony Of Admitted
Perjurer Should Not Be Believed Unless It Is Corroborated
By Other Credible
Evidence
5. Past Subornation Of
Perjury Or Past Perjury And Current Testimony
6. Past Conviction Of
Fraud Or Perjury: Testimony Must Be Corroborated
7. Admitted Perjurer Is
Not Presumed To Speak The Truth
8. Oath And Threat Of
Perjury Prosecution Gives The Assurance That Most Witnesses
Will Testify
Truthfully
9. Distrust Of Witness
Testimony Made False By Leading Questions
10. Propensity To Lie To Authorities
Damaging To Witness's Credibility
11. Jury May Infer The Opposite From
What A Perjurer Testified To
12. Falsus In Uno
13. Defendant Need Not Present
Evidence That Witnesses Have Testified Falsely
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Testimony Of Perjurer Must Be Considered With Caution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
__________ (name of witness) has admitted lying under oath. You may give (his/her) testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care.
AUTHORITIES:
Former Seventh Circuit Pattern Instructions, §3.21.
SAMPLE INSTRUCTION # 2:
Certain of the government's witnesses has admitted to lying under oath. You may give their testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care.
AUTHORITIES:
Former Seventh Circuit Federal Criminal Jury Instructions, 3.21.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Casey, No. 85-CR-111 (E.D. Wis. 1986).
SAMPLE INSTRUCTION # 3:
The testimony of a witness who has previously been convicted of perjury or false statements under oath should be received with caution and considered with care.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Testimony Of Person Giving False Affidavit Or Testimony Must Be Considered With Caution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A witness who testifies that on a prior occasion (he/she) knowingly gave [a false affidavit] [false testimony under oath] should not be treated like an ordinary witness. The fact that (he/she) knowingly ignored (his/her) oath on a prior occasion suggests that (his/her) testimony should be weighed with care and considered with caution.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Jury May Disregard All Uncorroborated Testimony If They Find Witness Testified Falsely To Material Fact
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you become satisfied beyond a reasonable doubt from the evidence in this case that any witness has, on this trial, wilfully testified falsely as to any material fact, you are at liberty, in your discretion, to disregard all the testimony of such witness except insofar as you find it corroborated by other evidence that is credible.
AUTHORITIES:
Wis. JI Criminal 305; Spick v. State, 140 Wis. 104, 121 N.W. 664 (1909); State v. Lombardi, 8 Wis. 2d 421, 99 N.W.2d 829 (1959).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Testimony Of Admitted Perjurer Should Not Be Believed Unless It Is Corroborated by Other Credible Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The testimony of an admitted perjurer is always suspect and should be received with caution. Ordinarily, a jury should not convict a person upon the testimony of such a person unless it is corroborated by other credible evidence.
In weighing the testimony of an admitted perjurer, the jury should analyze the circumstances of the prior perjured testimony to determine whether these lies under oath fall into a pattern and whether the testimony of the witness at the trial is consistent or inconsistent with this pattern of prior fabrications.
SAMPLE INSTRUCTION # 2:
The testimony of a witness who admitted that he committed perjury in the past should be weighed with great care and caution unless such testimony is corroborated by other credible evidence.
AUTHORITY:
United States v. Abraham, 541 F.2d 1234, 1240 (7th Cir. 1976).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Past Subornation Of Perjury Or Past Perjury And Current Testimony
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where a person persuades a witness to testify falsely the person has committed the crime of suborning perjury. A witness who admits that in the past he or she has suborned or committed perjury is a witness who has had no respect for the testimonial oath.
While you cannot presume that such a witness has committed perjury in this trial, neither can you presume that either the sanctity of the oath or the threat of a perjury prosecution will insure that the witness will testify truthfully.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Past Conviction Of Fraud Or Perjury: Testimony Must Be Corroborated
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the testimony of __________ (name of witness), you should bear in mind that (he/she) has been previously convicted of fraud and of perjury. A witness who has been convicted of perjury is a person who has knowingly testified to a material fact under oath with the knowledge that (his/her) testimony was false at the time it was given. The criminal justice system recognizes that witnesses make mistakes, are forgetful, and sometimes are coached; the effects of all of these can be ameliorated by the instructions of the trial judge and all can be recognized by a jury as the normal frailties of human beings. Perjury is an entirely different matter and indicates a complete and callous disregard for the solemnity of the oath and for the processes of a criminal justice system. Accordingly, the testimony of an admitted perjurer should be weighed with caution and considered with care and should be considered by the jury only if it is corroborated by other credible evidence.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Admitted Perjurer Is Not Presumed To Speak The Truth
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A witness who has admitted that he committed perjury is not presumed when he testifies to speak the truth.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Oath And Threat Of Perjury Prosecution Gives The Assurance That Most Witnesses Will Testify Truthfully
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The promise of a witness to the prosecutor to tell the truth does not add to the credibility of the witness. It is the sanctity of the oath and the threat of perjury prosecution which gives the assurance that most witnesses will testify truthfully.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Distrust Of Witness Testimony Made False By Leading Questions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A witness who can be encouraged to testify falsely by leading questions should be distrusted in all of his testimony.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Propensity To Lie To Authorities Damaging To Witness's Credibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A propensity to lie to police officers, prosecutors and even judges is especially damaging to a witness's credibility.
AUTHORITY:
United States v. Manske,186 F.3d 770, 780 (7th Cir. 1999); Crivens v. Roth, 172 F.3d 991, 998 (7th Cir. 1999).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Jury May Infer The Opposite From What A Perjurer Testified To
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that you may infer the opposite from what a witness testified to and that the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance as to give assurance that (he/she) is fabricating, and that, if (he/she) is, there is no alternative but to assume the truth of what (he/she) denies.
AUTHORITIES:
United States v. Tropiano, 418 F.2d 1069, 1075 (2d Cir. 1969); Dyer v. McDougall, 201 F.2d 265, 269 (2d Cir. 1952).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Stevens, No. J-9112 (Circuit Court, Milwaukee County, 1982.
SAMPLE INSTRUCTION # 2:
The testimony of one who has a motive to so testify may be uttered with such hesitation, discomfort, arrogance and defiance, as to give assurance that (he/she) is fabricating and that if (he/she) is, there is no alternative but to assume the opposite from that to which (he/she) testified.
AUTHORITIES:
United States v. Tropiano, 418 F.2d 1069, 1075 (2d Cir. 1969); Edwards v. State, 46 Wis. 2d 249, 174 N.W.2d 269, 272 (1970); Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952), (L. Hand).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Falsus In Uno
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If you become satisfied beyond a reasonable doubt from the evidence in this case that any witness has, on this trial, willfully testified falsely as to any material fact, you are at liberty, in your discretion, to disregard all the testimony of such witness except insofar as you find it corroborated by other evidence that is credible.
AUTHORITY:
WIS JI - CRIMINAL 305 (falsus in uno).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Defendant Need Not Present Evidence That Witnesses Have Testified Falsely
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is the defendant __________’s (name of defendant) position that (he/she) was not involved in any criminal activity charged against (him/her). It is (his/her) view that certain prosecution witnesses have falsely testified against him for reasons of their own, such as to obtain their own freedom from imprisonment by providing a likely target for prosecution. Defendant need not produce any affirmative testimony for you to accept this position. Rather, if evidence brought out on cross-examination or inferences drawn from testimony elicited by the prosecution itself create a reasonable doubt in your mind of this defendant's criminal participation in the crimes alleged, then you must acquit (him/her).
AUTHORITIES:
United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir. 1976); United States v. Vole, 435 F.2d 774 (7th Cir. 1970).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Impeachment – Impeachment By Prior Perjury.
RELATED NCJIC MATERIALS:
See NCJIC 27.7.6 [Impeachment By Prior Perjury Conviction Or Admission To Intentionally Lying Under Oath].
See NCJIC 27.7.8 [Witness Willfully False (Falsus In Uno): Definition of "Material Part"].
See generally NCJIC Chapter 95: Perjury And Related Offenses.