Croston v. Hobbs et al
Filing
109
ORDER: The Court appreciates the parties' proposed jury instructions. The Court is attaching its current working drafts of the voir dire, the preliminary instructions, the final instructions, and the interrogatories. The Court has concluded that the issues are better submitted as a deliberate-indifference claims as opposed to excessive-force claims. The Court has framed the elements instructions accordingly. Please file any objection or comment about the voir dire and preliminary instructio ns by noon on Friday, July 8. Hold fire on the final instructions and interrogatories. Those will be taken up on Monday at the pretrial. Signed by Judge D. P. Marshall Jr. on 7/7/2016. (Attachments: # 1 Document Voir Dire, # 2 Document Preliminary Instructions, # 3 Document Final Instructions, # 4 Document Interrogatories)(jak)
COURT’S PRELIMINARY INSTRUCTION NO. 1
GENERAL: NATURE OF CASE; BURDEN OF PROOF;
DUTY OF JURY; CAUTIONARY
Ladies and gentlemen of the jury: Here are some initial
instructions about this case and your duties as jurors. During the
trial, I may give you more instructions. And at the end of the trial,
I will give you final instructions. Follow all my instructions.
This civil case involves a prisoner and a former prison guard.
Detrick Croston is an inmate in the Arkansas Department of
Correction. Roderick Cooksey is a former ADC guard. Croston
claims that Cooksey violated his Eighth Amendment right to be free
from cruel and unusual punishment. More specifically, Croston
alleges that Cooksey sexually assaulted, sexually harassed, and
verbally threatened him. Cooksey denies these allegations. You
must decide—from the evidence—whether Croston is entitled to a
verdict against Cooksey on his Eighth Amendment claims.
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Your duty is to decide what the facts are from the evidence.
Consider the evidence in the light of your own observations and
experiences. Use your common sense. After you have decided what
the facts are, you will have to apply those facts to the law that I give
you in these and in my other instructions. That is how you will
reach your verdict. Only you will decide what the facts are. But you
must follow my instructions, whether you agree with them or not.
You have taken an oath to follow the law that I give you in my
instructions.
In deciding what the facts are, you will have to decide what
testimony you believe and what testimony you don’t believe. You
may believe all of what a witness said, or only part of it, or none of
it.
In deciding what testimony to believe, consider several things:
the witnesses’ intelligence; their opportunity to have seen or heard
the things they testify about; their memories; any motives they
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may have for testifying a certain way;
their demeanor 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.
A caution about considering a witness’s demeanor while
testifying. Many folks are nervous just being in court. And there are
bold liars and shy truth tellers. Use your common sense and be
discerning when judging someone’s credibility based on their
demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind
that people sometimes hear or see things differently and sometimes
forget things. You will have to decide whether a contradiction is an
innocent misrecollection, a lapse of memory, or a lie—and that may
depend on whether it has to do with an important fact or only a
small detail.
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COURT’S PRELIMINARY INSTRUCTION NO. 2
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 I tell you the parties have agreed are
true.
Some things are not evidence. I will list those things for you
now:
1. Lawyers’ statements, arguments, questions, and comments
are not evidence.
2. Objections are not evidence. Lawyers have a right—and
sometimes a duty—to object when they believe something should
not be a part of the trial. Do not be influenced one way or the other
by objections. If I sustain a lawyer’s objection to a question or an
exhibit, that means the law does not allow you to consider that
information. When that happens, you have to ignore the question
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or the exhibit; and you must not try to guess what the information
might have been.
3. Testimony and exhibits that I strike from the record or tell
you to disregard are not evidence; and you must not consider them.
4. Anything you see or hear about this case outside the
courtroom is not evidence; and you must not consider it.
5. I might tell you that you can consider a piece of evidence for
one purpose only and not for any other purpose. If that happens, I
will tell you what purpose you can consider the evidence for and
what you are not allowed to consider it for. You need to pay close
attention when I give an instruction about evidence that you can
consider for only certain purposes because you might not have that
instruction in writing later in the jury room.
6. Finally, some of you may have heard the terms “direct
evidence” and “circumstantial evidence.”
You should not be
concerned with those terms because the law makes no distinction
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between the weight to be given to direct and circumstantial
evidence.
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COURT’S PRELIMINARY INSTRUCTION NO. 3
BURDEN OF PROOF
You will have to decide whether certain facts have been proved
by the greater weight of the evidence. A fact has been proved if you
find that it is more likely true than not true. You decide that by
considering all the evidence, and then deciding what evidence is
more believable.
The greater weight of the evidence is not
established by who has the most witnesses or exhibits. You are,
instead, looking for the truth in the whole case.
You have probably heard the phrase “proof beyond a
reasonable doubt.” That is a stricter standard than “more likely true
than not true.” The standard of “proof beyond a reasonable doubt”
applies in criminal cases, but not in this civil case; so put it out of
your minds.
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COURT’S PRELIMINARY INSTRUCTION NO. 4
BENCH CONFERENCES
During the trial, I will sometimes need to talk privately with
the lawyers. I may talk with them here at the bench while you are
in the courtroom. Or I may call a recess and let you leave the
courtroom while I talk with the lawyers.
Either way, please
understand that while you are waiting, we are working. We have
these conferences to make sure that the trial is proceeding according
to the law and to avoid confusion or mistakes. We will do what we
can to limit the number of these conferences and to keep them as
short as possible.
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COURT’S PRELIMINARY INSTRUCTION NO. 5
NO TRANSCRIPT AVAILABLE/NOTE-TAKING
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 copy of the testimony to refer to. You must pay close
attention to the testimony and other evidence as it is presented here
in the courtroom.
If you wish, you may take notes to help you remember what
witnesses say. If you do take notes, do not show them to anyone
until you and your fellow jurors go to the jury room to decide the
case after you have heard and seen all of the evidence. And do not
let note-taking distract you from paying close attention to the
evidence as it is presented. The Clerk has provided each of you with
a pad of paper and a pencil. At each recess, leave your notes face
down in your chair. When you leave at night, your notes will be
secured and not read by anyone.
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COURT’S PRELIMINARY INSTRUCTION NO. 6
QUESTIONS BY JURORS
When the lawyers have finished questioning a witness, you
may propose questions to clarify the testimony. In your questions,
• Don’t express any opinion about the testimony;
• Don’t argue with a witness; and
• Don’t sign your name or juror number.
Submit your questions in writing by passing them to the Court
Security Officer. I will review each one with the lawyers. If the
question is proper, the lawyers or I will ask it.
Don’t put any special weight on the question just because a
juror suggested it. Don’t put any special weight on the question just
because I may be the one asking. And consider the witness’s answer
just like any other piece of evidence.
You may not get your question answered. For example, I may
decide that the question is not proper under the rules of evidence.
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And even if the question is proper, you may not get an immediate
answer. For example, a later witness or a coming exhibit may
provide the answer.
Don’t feel slighted or disappointed if your question isn’t asked
or answered immediately. Remember, you are not advocates for
either side; you are impartial judges of the facts.
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COURT’S PRELIMINARY INSTRUCTION NO. 7
CONDUCT OF THE JURY
Finally, to make sure this trial is fair to both parties, you must
follow these rules:
First, don’t talk or communicate among yourselves about this
case, or about anyone involved with it, until the end of the trial
when you go to the jury room to deliberate and decide on your
verdict. Don’t share your notes until deliberations begin.
Second, don’t 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.
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Fourth, during the trial, don’t talk with or speak to any of the
parties, lawyers, or witnesses in this case—not even to pass the time
of day. 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—even if it is simply to pass the time of day—that may raise a
suspicion about your fairness. If any lawyer, party, or witness
doesn’t speak to you when you pass in the hall, ride the elevator, or
the like, understand that they are not being rude. They know they
are not supposed to talk to you while the trial is going on; and they
are just following the rules.
Fifth, don’t read any news stories, articles, or blogs about the
case or about anyone involved with it. Don’t listen to any radio or
television reports about the case or about anyone involved with it.
Sixth, don’t do any research—on the Internet, in a library, in
newspapers, or otherwise—and don’t investigate this case on your
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own. Do not visit or view any place discussed in this case, and do
not use the Internet or other means to search for or view any place
discussed in the testimony. Don’t look up any information about
this case, the law, or the people involved—including the parties, the
witnesses, the lawyers, or me.
The parties have a right to have you decide their case based
only on evidence admitted here in court.
If you research,
investigate, or experiment on your own, or get information from
other places, your verdict might be influence by inaccurate,
incomplete, or misleading information. Witnesses here in court take
an oath to tell the truth; and the accuracy of their testimony is tested
through cross-examination. Both parties are entitled to a fair trial
and an impartial jury; and you have to conduct yourselves in a way
that assures the integrity of the trial process. If you decide a case
based on information not admitted in court, you will deny the
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parties a fair trial. You will deny them justice under law. You have
taken an oath to follow the rules; and you must do so.
Seventh, remember, cell phones are not permitted in the
courthouse or in the jury room.
Eighth, do not make up your mind during the trial about what
your verdict should be. Keep an open mind until after you and your
fellow jurors have discussed all the evidence.
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 lawyers 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 trial is intended to indicate
what I think 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
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decide on the believability and credibility of the witnesses and the
weight and value of the evidence.
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COURT’S PRELIMINARY INSTRUCTION NO. 8
EXPANDED INSTRUCTION RE: JURY PROHIBITION ON
ELECTRONIC COMMUNICATIONS/RESEARCH
During the trial—while you are in the courthouse, at lunch, on
breaks, 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 with anyone about this case. And do not use
any electronic device or media—such as the telephone, a cell phone,
a smart phone, Blackberry, iPad, computer, the Internet, any Internet
service, any text or instant messaging service, any Internet chat
room, blog, or website such as Facebook, YouTube, or Twitter—to
communicate to anyone any information about this case until I
accept your verdict.
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, Instagram, or the like during
the trial? On your oath, do you promise not to use the Internet to
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look up anything about the case, the matters discussed, the
lawyers, Croston, Cooksey, 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 in contempt of court and possibly punished.
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COURT’S PRELIMINARY INSTRUCTION NO. 9
OUTLINE OF TRIAL
The trial will proceed in the following manner:
First, Mr. Croston’s lawyer will make an opening statement.
Next, Mr. Cooksey’s lawyer will make an opening statement. An
opening statement is not evidence or argument. It is simply a
summary of what the lawyer expects you will see and hear during
the trial.
After opening statements, Mr. Croston’s lawyers will present
evidence by calling witnesses, and Mr. Cooksey’s lawyer will
cross-examine those witnesses.
After Mr. Croston’s case, Mr.
Cooksey’s lawyer may present evidence by calling witnesses, and
Mr. Croston’s lawyer will cross-examine those witnesses.
Finally, Mr. Croston may offer rebuttal evidence.
After you have seen and heard all of the evidence from both
sides, I will give you some instructions on the law. Then, the
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lawyers will make closing arguments that summarize and interpret
the evidence. Just as with opening statements, closing arguments
are not evidence.
After the closing arguments, I will give you some final
instructions. Then you’ll go to the jury room to deliberate and
decide on your verdicts.
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