Lawman v. City and County of San Francisco et al

Northern District of California, cand-4:2015-cv-01202

Proposed Preliminary Jury Instructions. Signed by Magistrate Judge Donna M. Ryu on 08/01/2016. (dmrlc1, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 GARY RICHARD LAWMAN, 7 Case No. 15-cv-01202-DMR Plaintiff, 8 v. [PROPOSED] PRELIMINARY JURY 9 INSTRUCTIONS CITY AND COUNTY OF SAN 10 FRANCISCO, et al., 11 Defendants. 12 Northern District of California United States District Court 13 Counsel shall raise any objections to these proposed preliminary jury instructions at the 14 August 3, 2016 supplemental pretrial conference. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DUTY OF JURY 2 Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on 3 the law. 4 You must not infer from these instructions or from anything I may say or do as indicating 5 that I have an opinion regarding the evidence or what your verdict should be. 6 It is your duty to find the facts from all the evidence in the case. To those facts you will 7 apply the law as I give it to you. You must follow the law as I give it to you whether you agree 8 with it or not. And you must not be influenced by any personal likes or dislikes, opinions, 9 prejudices, or sympathy. That means that you must decide the case solely on the evidence before 10 you. You will recall that you took an oath to do so. 11 In following my instructions, you must follow all of them and not single out some and 12 ignore others; they are all important. Northern District of California United States District Court 13 CLAIMS AND DEFENSES 14 To help you follow the evidence, I will give you a brief summary of the positions of the 15 parties: 16 [Parties to provide for court review.] 17 BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE 18 When a party has the burden of proof on any claim by a preponderance of the evidence, it 19 means you must be persuaded by the evidence that the claim is more probably true than not true. 20 You should base your decision on all of the evidence, regardless of which party presented 21 it. 22 TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS 23 You should decide the case as to each defendant party separately. Unless otherwise stated, 24 the instructions apply to all parties. 25 EVIDENCE 26 The evidence you are to consider in deciding what the facts are consists of: 27 1. the sworn testimony of any witness; 28 2 1 2. the exhibits which are received into evidence; and 2 3. any facts to which the lawyers have agreed. 3 In reaching your verdict, you may consider only the testimony and exhibits received into 4 evidence. Certain things are not evidence, and you may not consider them in deciding what the 5 facts are. I will list them for you: 6 (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. 7 What they have said in their opening statements, will say in their closing arguments, and at 8 other times is intended to help you interpret the evidence, but it is not evidence. If the facts 9 as you remember them differ from the way the lawyers have stated them, your memory of 10 them controls. 11 (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their 12 clients to object when they believe a question is improper under the rules of evidence. You Northern District of California United States District Court 13 should not be influenced by the objection or by the court's ruling on it. 14 (3) Testimony that has been excluded or stricken, or that you have been instructed to 15 disregard, is not evidence and must not be considered. In addition sometimes testimony 16 and exhibits are received only for a limited purpose; when I give a limiting instruction, you 17 must consider that evidence only for that limited purpose and for no other. 18 (4) Anything you may have seen or heard when the court was not in session is not 19 evidence. You are to decide the case solely on the evidence received at the trial. 20 DIRECT AND CIRCUMSTANTIAL EVIDENCE 21 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as 22 testimony by a witness about what that witness personally saw or heard or did. Circumstantial 23 evidence is proof of one or more facts from which you could find another fact. You should 24 consider both kinds of evidence. The law makes no distinction between the weight to be given to 25 either direct or circumstantial evidence. It is for you to decide how much weight to give to any 26 evidence. 27 RULING ON OBJECTIONS 28 There are rules of evidence that control what can be received into evidence. When a 3 1 lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 2 it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 3 question may be answered or the exhibit received. If I sustain the objection, the question cannot 4 be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, 5 you must ignore the question and must not guess what the answer might have been. 6 Sometimes I may order that evidence be stricken from the record and that you disregard or 7 ignore the evidence. That means that when you are deciding the case, you must not consider the 8 evidence that I told you to disregard. 9 CREDIBILITY OF WITNESSES 10 In deciding the facts in this case, you may have to decide which testimony to believe and 11 which testimony not to believe. You may believe everything a witness says, or part of it, or none 12 of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it. Northern District of California United States District Court 13 In considering the testimony of any witness, you may take into account: 14 (1) the opportunity and ability of the witness to see or hear or know the things testified to; 15 (2) the witness's memory; 16 (3) the witness's manner while testifying; 17 (4) the witness's interest in the outcome of the case and any bias or prejudice; 18 (5) whether other evidence contradicted the witness's testimony; 19 (6) the reasonableness of the witness's testimony in light of all the evidence; and 20 (7) any other factors that bear on believability. 21 The weight of the evidence as to a fact does not necessarily depend on the number of 22 witnesses who testify about it. 23 CONDUCT OF THE JURY 24 I will now say a few words about your conduct as jurors. 25 First, keep an open mind throughout the trial, and do not decide what the verdict should be 26 until you and your fellow jurors have completed your deliberations at the end of the case. 27 Second, because you must decide this case based only on the evidence received in the case 28 and on my instructions as to the law that applies, you must not be exposed to any other 4 1 information about the case or to the issues it involves during the course of your jury duty. Thus, 2 until the end of the case or unless I tell you otherwise: 3 Do not communicate with anyone in any way and do not let anyone else communicate with 4 you in any way about the merits of the case or anything to do with it. This includes discussing the 5 case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any 6 Internet chat room, blog, Web site or other feature. This applies to communicating with your 7 fellow jurors until I give you the case for deliberation, and it applies to communicating with 8 everyone else including your family members, your employer, the media or press, and the people 9 involved in the trial, although you may notify your family and your employer that you have been 10 seated as a juror in the case. But, if you are asked or approached in any way about your jury 11 service or anything about this case, you must respond that you have been ordered not to discuss 12 the matter and to report the contact to the court. Northern District of California United States District Court 13 Because you will receive all the evidence and legal instruction you properly may consider 14 to return a verdict: do not read, watch, or listen to any news or media accounts or commentary 15 about the case or anything to do with it; do not do any research, such as consulting dictionaries, 16 searching the Internet or using other reference materials; and do not make any investigation or in 17 any other way try to learn about the case on your own. 18 The law requires these restrictions to ensure the parties have a fair trial based on the same 19 evidence that each party has had an opportunity to address. A juror who violates these restrictions 20 jeopardizes the fairness of these proceedings. If any juror is exposed to any outside information, 21 please notify the court immediately. 22 NO TRANSCRIPT AVAILABLE TO JURY 23 During deliberations, you will have to make your decision based on what you recall of the 24 evidence. You will not have a transcript of the trial. I urge you to pay close attention to the 25 testimony as it is given. 26 If at any time you cannot hear or see the testimony, evidence, questions or arguments, let 27 me know so that I can correct the problem. 28 5 1 TAKING NOTES 2 If you wish, you may take notes to help you remember the evidence. If you do take notes, 3 please keep them to yourself until you and your fellow jurors go to the jury room to decide the 4 case. Do not let note-taking distract you. When you leave each day, your notes should be left in 5 the jury room. No one will read your notes. They will be destroyed at the conclusion of the case. 6 Whether or not you take notes, you should rely on your own memory of the evidence. 7 Notes are only to assist your memory. You should not be overly influenced by your notes or those 8 of your fellow jurors. 9 BENCH CONFERENCES AND RECESSES 10 From time to time during the trial, it may become necessary for me to talk with the 11 attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is 12 present in the courtroom, or by calling a recess. Please understand that while you are waiting, we Northern District of California United States District Court 13 are working. The purpose of these conferences is not to keep relevant information from you, but 14 to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion 15 and error. 16 Of course, we will do what we can to keep the number and length of these conferences to a 17 minimum. I may not always grant an attorney's request for a conference. Do not consider my 18 granting or denying a request for a conference as any indication of my opinion of the case or of 19 what your verdict should be. 20 OUTLINE OF TRIAL 21 Trials proceed in the following way: First, each side may make an opening statement. An 22 opening statement is not evidence. It is simply an outline to help you understand what that party 23 expects the evidence will show. A party is not required to make an opening statement. 24 The plaintiff will then present evidence, and counsel for the defendant may cross-examine. 25 Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. 26 After the evidence has been presented, I will instruct you on the law that applies to the case 27 and the attorneys will make closing arguments. 28 After that, you will go to the jury room to deliberate on your verdict. 6 1 JUDICIAL NOTICE 2 The court has decided to accept as proved the fact that [parties to provide for court review], 3 even though no evidence has been introduced on the subject. You must accept this fact as true. 4 USE OF INTERROGATORIES OF A PARTY 5 Evidence may be presented to you in the form of answers of one of the parties to written 6 interrogatories submitted by the other side. These answers were given in writing and under oath, 7 before the actual trial, in response to questions that were submitted in writing under established 8 court procedures. You should consider the answers, insofar as possible, in the same way as if they 9 were made from the witness stand. 10 USE OF REQUESTS FOR ADMISSION 11 Evidence may be presented to you in the form of admissions to the truth of certain facts. 12 These admissions were given in writing before the trial, in response to requests that were Northern District of California United States District Court 13 submitted under established court procedures. You must treat these facts as having been proved. 14 EXPERT OPINION 15 Some witnesses, because of education or experience, are permitted to state opinions and 16 the reasons for those opinions. 17 Such testimony should be judged just like any other testimony. You may accept it or reject 18 it, and give it as much weight as you think it deserves, considering the witness's education and 19 experience, the reasons given for the opinion, and all the other evidence in the case. 20 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE (Needed?) 21 Certain charts and summaries not received in evidence may be shown to you in order to 22 help explain the contents of books, records, documents, or other evidence in the case. They are 23 not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures 24 shown by the evidence in the case, you should disregard these charts and summaries and 25 determine the facts from the underlying evidence. 26 CHARTS AND SUMMARIES IN EVIDENCE (Needed?) 27 Certain charts and summaries may be received into evidence to illustrate information brought 28 out in the trial. Charts and summaries are only as good as the underlying evidence that supports 7 1 them. You should, therefore, give them only such weight as you think the underlying evidence 2 deserves. ISTRIC TES D TC TA 3 O S U ED 4 IT IS SO ORDERED. RT D RDERE UNIT OO IT IS S 5 Dated: August 1, 2016 ______________________________________ R NIA 6 Donna M. Ryu Ryu M.Judge United States Magistrate NO 7 onna Judge D FO RT 8 LI ER H A N C 9 F D IS T IC T O R 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8