Roberts v. Herrington et al
Filing
62
ORDER: The Court appreciates the parties' proposed jury instructions and pre-trial filings. The Court is attaching its current working drafts of the preliminary instructions, the final instructions, and the verdict forms. Signed by Judge D. P. Marshall Jr. on 12/10/2014. (Attachments: # 1 Document Preliminary Instructions, # 2 Document Final Instructions, # 3 Document Verdict Forms)(jak)
PRELIMINARY INSTRUCTIONS
COURT'S JURY INSTRUCTION NO. 1.01
GENERAL: NATURE OF CASE; BURDEN OF PROOF;
DUTY OF JURY; CAUTIONARY
Ladies and gentlemen of the jury: I will take a few moments now to
give you some initial instructions about this case and about your duties as
jurors. During the trial, I will give you more instructions. And at the end
of the trial, I will give you further instructions. Unless I specifically tell
you otherwise, all these instructions—both those I give you now and those
I give you later—are equally binding on you and must be followed.
In this case, I am the judge of the law and the jury is the judge of the
facts. As the judge of the facts, it is your duty to determine the true facts
from the evidence and the reasonable inferences arising from the evidence.
In making your factual determinations, you must not engage in guess work
or speculation.
As I explained during voir dire, this is a civil case brought by Brunson
Roberts against two guards at the Arkansas Department of
Correction—John Herrington and Brian Levengood. Roberts claims that
the guards used excessive force against him. Roberts says that during an
Court’s Working Draft 10 December 2014
Page 1 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
inspection of his property, Herrington and Levengood threw him on his
cot and twisted his arm, even though Roberts had told them that his left
shoulder had recently been dislocated. Herrington and Levengood deny
using excessive force against Roberts. They say that during the inspection
of Roberts’s property, Roberts didn’t obey their order to submit to
handcuffs and behaved aggressively toward them. The guards say that
they used the minimum amount of force necessary to subdue Roberts and
regain order.
On the alleged excessive-force claims: the Eighth Amendment to the
Constitution prohibits cruel and unusual punishment. In particular, it
prohibits the use of excessive force against someone in custody. To prevail
on this claim, Roberts must prove by a preponderance of the evidence that
a particular ADC guard used physical force on him, that the force used
was excessive and applied maliciously and sadistically for the purpose of
causing harm, not in a good faith effort to achieve a legitimate purpose,
and that as a direct result Roberts was injured. In determining whether the
force was excessive, you must consider several things: the need for the
application of force; the relationship between the need and the amount of
Court’s Working Draft 10 December 2014
Page 2 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
force that was used; the extent of the injury inflicted; and whether the force
was used to achieve a legitimate purpose or maliciously and sadistically
for the purpose of causing harm. Maliciously means intentionally injuring
another without just cause or reason. Sadistically means engaging in
extreme or excessive cruelty or delighting in cruelty.
It will be your duty to decide from the evidence whether Roberts is
entitled to a verdict against either guard. You must consider Roberts’s
claim against each guard separately. Roberts’s claim against either guard
may not survive as a matter of law for one reason or another. That’s for me
to decide later. And I’ll tell you in my final instructions what particular
claims you must decide.
This case should be considered and decided by you as a dispute
between persons of equal worth. All persons stand equal before the law
and are to be treated as equals.
From the evidence you will decide what happened. You are entitled
to consider that evidence in light of your own observations and
experiences in the affairs of life. You will then apply those facts to the law
that I give you in these and in my other instructions, and in that way reach
Court’s Working Draft 10 December 2014
Page 3 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
your verdict. While you are the sole judges of the facts, you must follow
the law, as stated in my instructions, whether you agree with it or not. In
deciding what the facts are, you may have to decide what testimony you
believe and what testimony you do not believe. You may believe all of
what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider the witnesses’
intelligence, their opportunity to have seen or heard the things they testify
about, their memories, any motives they may have for testifying a certain
way, their manner while testifying, whether they said something different
at an earlier time, the general reasonableness of their testimony, and the
extent to which their testimony is consistent with other evidence that you
believe.
Do not allow sympathy or prejudice to influence you. The law
demands of you a just verdict, unaffected by anything except the evidence,
your common sense, and the law as I give it to you.
You should not take anything I may say or do during the trial as
indicating what I think of the evidence or what I think your verdict should
be.
Court’s Working Draft 10 December 2014
Page 4 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S JURY INSTRUCTION NO. 1.02
EVIDENCE: LIMITATIONS
I have mentioned the word "evidence." "Evidence" includes the
testimony of witnesses, the documents and other things received as
exhibits, and any facts that have been stipulated—that is, agreed to by the
parties.
Certain things are not evidence. I will list those things for you now:
1.
Statements, arguments, questions, and comments by lawyers
are
not evidence.
2.
Objections are not evidence. Lawyers have a right and
sometimes a duty to object or to move that certain evidence that has
already been received be stricken. If such an objection or such a motion to
strike is made, it will be my duty, as judge, to rule on the matter and
determine whether you jurors may take into consideration the challenged
evidence. You are not to concern yourself with the reasons for the
attorneys’ objections or motions to strike or with the reasons for the
Court’s rulings. You also should not be influenced by the objection or the
Court’s Working Draft 10 December 2014
Page 5 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
motion to strike.
If I sustain an objection to a question or an exhibit, you must ignore
the question or the exhibit and must not try to guess what the information
might have been. Similarly, testimony and exhibits that I strike from the
record, or tell you to disregard, are not evidence and must not be
considered.
3.
Anything you see or hear about this case outside the courtroom
is not evidence. Furthermore, a particular item of evidence is sometimes
received for a limited purpose only. That is, it can be used by you only for
one particular purpose, and not for any other purpose. I will tell you when
that occurs and instruct you on the purposes for which the item can and
cannot be used.
Finally, some of you may have heard the terms “direct evidence” and
“circumstantial evidence.” A fact is established by direct evidence when,
for example, it is proved by witnesses who testify to what they saw, heard,
or experienced. A fact is established by circumstantial evidence when its
existence can reasonably be inferred from other facts proved in the case.
The law makes no distinction between the weight to be given to direct and
Court’s Working Draft 10 December 2014
Page 6 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
circumstantial evidence.
Court’s Working Draft 10 December 2014
Page 7 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S JURY INSTRUCTION NO. 1.03
BURDEN OF PROOF
The burden of proving a fact is placed upon the party whose claim or
defense depends upon that fact. The party who has the burden of proving
a fact must prove it by a preponderance of the evidence. To prove
something by the “preponderance of the evidence” is to prove that it is
more likely true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced,
you cannot find that fact has been proved. The preponderance of the
evidence is not necessarily established by the greater number of witnesses
or exhibits a party has presented.
You may have heard of the term “proof beyond a reasonable doubt.”
This is a stricter standard, which applies in criminal cases. It does not
apply in civil cases like this one. You should, therefore, put it out of your
minds.
Court’s Working Draft 10 December 2014
Page 8 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S JURY INSTRUCTION NO. 1.04
BENCH CONFERENCES
During the trial it will be necessary for me to speak with the lawyers out
of your hearing, either by having a bench conference here while you are
present in the courtroom, or by calling a recess. Please understand that while
you are waiting, we are working. The purpose of these conferences is to
decide how certain evidence is to be treated under the Rules of Evidence,
which govern the trial, and to avoid confusion and error. We will, of course,
do what we can to keep the number and length of these conferences to a
minimum.
Court’s Working Draft 10 December 2014
Page 9 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S JURY INSTRUCTION NO. 1.05
NO TRANSCRIPT AVAILABLE/NOTE-TAKING
At the end of the trial you must make your decision based on what you
recall of the evidence. You will not have a written transcript to consult. You
must pay close attention to the testimony as it is given.
If you wish, however, 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. And do not let
note-taking distract you so that you do not hear other answers by the witness.
The Clerk has provided each of you with a pad of paper and a pencil. At each
recess, leave your notes in your chair.
When you leave at night, your notes will be secured and not read by
anyone.
Court’s Working Draft 10 December 2014
Page 10 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S JURY INSTRUCTION NO. 1.06
CONDUCT OF THE JURY
Finally, to insure fairness, you as jurors must obey the following rules:
First, as jurors, I do not want you to talk among yourselves about this
case, or about anyone involved with the case, until the end of the case when
you go to the jury room to deliberate and decide on your verdict.
Second, do not talk with anyone else about this case, or about anyone
involved with it, until the trial has ended and you have been discharged as
jurors.
Third, when you are outside the courtroom, do not let anyone tell you
anything about the case, or about anyone involved with it. If someone does
try to talk to you about the case during the trial, please report it to me
immediately.
Fourth, during the trial you should not talk with or speak to any of the
parties, lawyers, or witnesses involved in this case—you should not even pass
the time of day with any of them. It is important not only that you do justice
in this case, but that you also give the appearance of doing justice. If a person
from one side of the lawsuit sees you talking to a person from the other side
Court’s Working Draft 10 December 2014
Page 11 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
—even if it is simply to pass the time of day—an unwarranted and
unnecessary suspicion about your fairness might be aroused. If any lawyer,
party, or witness does not speak to you when you pass in the hall, ride the
elevator, or the like, remember it is because they are not supposed to talk or
visit with you.
Fifth, do not read any news stories, articles, or blogs about the case or
about anyone involved with it, or listen to any radio or television reports
about the case or about anyone involved with it.
Sixth, do not do any research or make any investigation about the case
on your own about any matter involved in this case. By way of example, that
means that you must not consult the Internet (e.g., Google or Wikipedia), a
dictionary, textbook, encyclopedia, or talk with a person you consider
knowledgeable. In fairness, you must only learn about this case from the
evidence you receive here at the trial and apply those facts to the law as I give
it to you.
Seventh, remember, cell phones are not permitted in the courtroom or
in the jury room.
Eighth, keep an open mind during the trial about what the verdict
Court’s Working Draft 10 December 2014
Page 12 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
should be. Keep an open mind until after you have heard all of the evidence.
Once the trial has been completed and you have retired to the jury room to
decide the case, you and your fellow jurors are free to discuss the evidence
among yourselves.
Ninth, remember that you are not to be influenced in any degree by any
personal feelings or sympathy or prejudice for or against any of the parties or
the attorneys in the case. Each party is entitled to the same fair and impartial
consideration at your hands.
Tenth, no statement, remark, or ruling that I make or question that I
might ask of a witness during the course of the trial is intended to indicate
how I feel about the facts of the case. You, as the jurors, are the sole judges of
the facts of the case. You and you alone will have to decide upon the
believability and credibility of the witnesses and the weight and value of the
evidence.
Court’s Working Draft 10 December 2014
Page 13 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S JURY INSTRUCTION NO. 1.07
EXPANDED INSTRUCTION RE: JURY PROHIBITION ON
ELECTRONIC COMMUNICATIONS/RESEARCH
During the trial, while you are in the courthouse and after you leave for
the day, do not provide any information to anyone by any means about this
case. For example, do not talk face-to-face or use any electronic device or
media, such as the telephone, a cell phone, a smart phone, Blackberry, PDA,
computer, the Internet, any Internet service, any text or instant messaging
service, any Internet chat room, blog, or website such as Facebook, Instagram,
YouTube, or Twitter, to communicate to anyone any information about this
case until I accept your verdict. Do not use the Internet to look up or research
anything about the case.
Ask each juror: Juror No. —, on your oath, do you promise not to post
anything about your jury service on any social media website such as
Facebook, Twitter, Myspace, or the like during the trial? On your oath, do
you promise not to use the internet to look up anything about the case, the
matters discussed, the lawyers, Roberts, either defendant, me, or the law?
Remember, you have taken an oath to follow the rules, and you must
do so. If you do not, the case might have to be retried, and you could be held
Court’s Working Draft 10 December 2014
Page 14 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
in contempt of court and possibly punished.
Court’s Working Draft 10 December 2014
Page 15 of 17
Roberts v. Herrington, et al.
5:12-cv-188-DPM
COURT'S INSTRUCTION NO. 1.08
OUTLINE OF TRIAL
The trial will proceed in the following manner:
First, Roberts’s lawyer will make an opening statement. Next, the
Defendants’ lawyer will make an opening statement. An opening statement
is not evidence but is simply a summary of what the attorney expects the
evidence to be.
Roberts will then present evidence by calling witnesses, and
Defendants’ lawyers may cross-examine those witnesses. Following Roberts’s
case, the Defendants may present evidence by calling witnesses, and Roberts
may cross-examine those witnesses.
Finally, Roberts may offer rebuttal evidence.
After presentation of evidence is completed, the Court will give you
some final instructions. The attorneys will then have a second opportunity to
address you directly, and on that second occasion, they are permitted to argue
to you the evidence in an attempt to persuade you to their differing views of
the true facts of the case. As with opening statements, closing arguments are
not evidence. Then you will retire to the jury room to deliberate on your
Court’s Working Draft 10 December 2014
Roberts v. Herrington, et al.
No. 5:12-cv-188-DPM
Page 16 of 17
verdict.
Court’s Working Draft 10 December 2014
Roberts v. Herrington, et al.
No. 5:12-cv-188-DPM
Page 17 of 17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?