The Relationship Between Pre-Trial Motions and Jury Instructions

Criminal Jury Instructions Drafted by the Defense

Charges against a defendant are dismissed not because the defense lawyer knows the judge or plays golf with the prosecutor, but because the lawyer has crafted pretrial motions and supporting briefs which compel the judge to dismiss the charges or risk reversal on appeal. For years James Shellow taught a seminar on Advanced Criminal Procedure at the University of Wisconsin Law School. The two-semester seminar focused exclusively on the preparation of pretrial motions and briefs in support of these motions.

Similarly, when charges are submitted to a jury, the judge advises the jury that it must follow the instructions on the law given by the court. The court usually gives pattern instructions which in large measure were drafted by prosecutors and former prosecutors.

A defense lawyer must draft his own jury instructions. The pattern instructions are for a pattern prosecution, but no two prosecutions are the same and the pattern instructions rarely present the law on which the defendant must rely. James Shellow is considered to be the leading expert in the country on drafting criminal jury instructions from the defendant’s perspective. Forecite has compiled and published jury instructions for criminal defense lawyers. James Shellow is on the Advisory Board of Forecite and its compilation of instructions will contain several thousand instructions he has prepared. Several hundred presently appear on Forecite’s web site in the SHELLOW COLLECTION.