Model Jury - Section 1





   Ladies and gentlemen: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial I will give you more detailed instructions. Those instructions will control your deliberations.

   It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so, you must follow that law whether you agree with it or not. The evidence will consist of the testimony of witnesses, documents, and other things received into evidence as exhibits and any facts on which the lawyers agree or which I may instruct you to accept.

   You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.


   See Instruction 3.01 for instruction at end of case.


   To help you follow the evidence, I will give you a brief summary of the positions of the parties:

   Plaintiff claims that ___________________________________________________.

   Defendant denies those claims [and also contends that ______________________].


   The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:

   1.   statements and arguments of the attorneys;

   2.   questions and objections of the attorneys;

   3.   testimony that I instruct you to disregard;

4.   anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.


   See Instruction 3.05 for instruction at end of case.


   Some evidence is admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.


   As a rule, limiting instructions need only be given when requested and need not be given sua sponte by the court. United States v. McLennan, 563 F.2d 943, 947-48 (9th Cir. 1977), cert. denied, 435 U.S. 969 (1978).

   See also Instructions 2.08, 2.09, and 3.05.


   Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.


   See Instruction 3.06 for instruction at end of case.


   There are rules of evidence which control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.

   Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence which I told you to disregard.


   See Instruction 3.05 for instruction at end of case.


   In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

   In considering the testimony of any witness, you may take into account:

   1.   the opportunity and ability of the witness to see or hear or know the things testified to;

   2.   the witness' memory;

   3.   the witness' manner while testifying;

   4.   the witness' interest in the outcome of the case and any bias or prejudice;

   5.   whether other evidence contradicted the witness' testimony;

   6.   the reasonableness of the witness' testimony in light of all the evidence; and   7.   any other factors that bear on believability.

   The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.


   See Instruction 3.07 for instruction at end of case.


   I will now say a few words about your conduct as jurors.

   First, do not talk to each other about this case or about anyone who has anything to do with it until the end of the case when you go to the jury room to decide on your verdict.

   Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. "Anyone else" includes members of your family and your friends. You may tell them that you are a juror, but don't tell them anything about the case until after you have been discharged by me.

   Third, do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone should try to talk to you, please report it to me immediately.

   Fourth, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it.

   Fifth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own.

   Sixth, if you need to communicate with me, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me.

   Seventh, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.


   See Instruction 2.01 for instruction during trial. A similar instruction should be repeated before the first recess and as needed before other recesses (for example, before a weekend recess).


   At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it is difficult and time-consuming for the reporter to [read] [play] back lengthy testimony. I urge you to pay close attention to the testimony as it is given.


   A number of judges in this circuit currently use a similar instruction to discourage requests for lengthy readbacks. Such an instruction may be given in the court's discretion. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).


   If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room].

   Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.


   It is well settled in this circuit that the trial judge has discretion to allow jurors to take notes. United States v. Murray, 492 F.2d 178, 193 (9th Cir. 1973), cert. denied, 419 U.S. 854 (1974), and cert. denied, 419 U.S. 942 (1974); Toles v. United States, 308 F.2d 590, 594 (9th Cir. 1962), cert. denied, 375 U.S. 836 (1963); Harris v. United States, 261 F.2d 792, 796 (9th Cir. 1958), cert. denied, 360 U.S. 933 (1959).

   See Instruction 3.02 for instruction at end of case.


   The trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement.

   The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine.

   After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing arguments and I will instruct you on the law that applies to the case].

   You will then decide the case.


   Fed. R. Civ. P. 51 allows jury instructions before or after arguments.


   When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

   You should base your decision on all of the evidence, regardless of which party presented it.


   See Instruction 5.01 for instruction at end of case. This instruction may not apply to cases based on state law.


   While it is not customary for a juror to ask a question of a witness, if you wish to do so, put the question in writing and hand it to the [marshal] [bailiff] [clerk] [law clerk].

   The court and counsel will review your question. Do not be concerned if the question is not asked.

   Do not discuss your question with anyone, including the [marshal] [bailiff] [clerk] [law clerk]. Remember that you are not to discuss the case with other jurors until it is submitted for your decision.


   Permitting questions from jurors is discretionary. See United States v. Evans, 542 F.2d 805 (10th Cir. 1976), cert. denied, 429 U.S. 1101 (1977); United States v. Callahan, 588 F.2d 1078 (5th Cir.), cert. denied, 444 U.S. 826 (1979); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 (4th Cir. 1985).

   Those judges who wish to allow questions from jurors may give this instruction as a preliminary instruction or as an instruction during trial.


   Languages other than English may be used during this trial.

   The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning of the non-English words.


   See Instruction 3.04 for instruction at end of case.

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