Cohea v. Pliler, et al

Filing 311

ORDER re PROPOSED TRIAL DOCUMENTS signed by Judge Garland E. Burrell, Jr on 7/20/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,

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2:00-cv-02799-GEB-EFB

Plaintiff,

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No.

v.

PROPOSED TRIAL DOCUMENTS

J. COLVIN, D. McCARGAR, S.L.
BAUGHMAN, M.A. MICHEELS, R
YAMAMOTO, SD AKIN, D. ADAMS,
A GOLD, and S. SCARSELLA,

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Defendants.
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Attached are the Court’s proposed voir dire questions

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and

preliminary

jury

instructions.

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should be submitted as soon as practicable.

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Dated:

July 20, 2015

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Any

proposed

modifications

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

DANNY JAMES COHEA,

No. 2:00-cv-02799-GEB-EFB

Plaintiff,
v.

VOIR DIRE

J. COLVIN, D. McCARGAR, S.L.
BAUGHMAN, M.A. MICHEELS, R
YAMAMOTO, SD AKIN, D. ADAMS,
A GOLD, and S. SCARSELLA,
Defendants.

Good morning and welcome to the United States District
Court. Thank you for your presence and anticipated cooperation
in the jury selection questioning process we are about to begin.
You are performing an important function in our legal system.
The court personnel who will assist me in this trial
are on the platform below me. The Courtroom Deputy is Shani
Furstenau. Next to her is the Certified Court Reporter.
We are about to begin what is known as voir dire. The
purpose of voir dire is to determine whether you can be a fair
and impartial juror on this case. Near or at the end of the
process, each party can use a certain amount of what are called
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peremptory

challenges,

which

excuse

sitting as a juror on this case.

a

potential

juror

from

A potential juror can also be

excused for other reasons.
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Ms. Furstenau, please administer the oath to the

2.

The

panel.
Jury

Administrator

randomly

selected

potential jurors and placed their names on the sheet that has
been given to each party in the numerical sequence in which they
were randomly selected. Each juror has been placed in his or her
randomly-selected

seat.

The

Courtroom

Deputy

has

given

each

juror a large laminated card on which the number is placed,
which

reflects

the

order

in

which

the

juror

was

randomly

selected.
3.

I will ask a series of questions to the jurors as

a group. If you have a response, please raise the number you’ve
been

given.

Generally,

you

will

be

given

an

opportunity

to

respond in accordance with the numerical order in which you are
seated, with the juror in the lowest numbered seat responding
first. If no number is raised, I will simply state “no response”
for the record and then ask the next question. If you know it is
your turn to respond to a question, you may respond before I
call your name or your seat number, by stating your last name or
just your seat number, then your response. That should expedite
the process.
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4.

If you conclude any question unduly pries into

your private affairs and you, therefore, wish to discuss it
privately,
protect

let

your

me

know.

legitimate

While

I’m

privacy

authorized

interest,

I

under
may

law

ask

to

some

questions about the matter you indicate you want to discuss
privately to determine whether it, or any aspect of the matter,
should

be

discussed

in

open

court.

This

approach

is

taken

because the trial should be open unless I have a legitimate
reason to close an aspect of it.
5.

The evidence and argument portion of the trial

should be completed in approximately 3 court days, after which
the case will be submitted to the jury for jury deliberation.
Trial will be conducted on Tuesdays, Wednesdays, and Thursdays,
from 9:00 a.m. to about 4:30 p.m. However, once you commence
jury deliberations, you will be expected to deliberate every day
except weekends from 9:00 a.m. to about 4:30 p.m. until you
complete

your

deliberations.

Does

this

schedule

present

a

special problem to any member of the jury panel?
6.

This is a civil lawsuit filed by the Plaintiff

Danny James Cohea against the Defendants Adams, Akin, Baughman,
Colvin, Gold, McCargar, Micheels, Scarsella, and Yamamoto. The
Plaintiff is representing himself, which means that, in addition
to his role as the Plaintiff, he is acting as his own attorney
during the trial.
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The lawsuit concerns events that occurred from 1997 to
2000, when the Plaintiff was a state prisoner housed at the
California State Prison, Sacramento, which will be referred to
as CSP-Sacramento. At the referenced time, the Defendants worked
as correctional staff at CSP-Sacramento.
Plaintiff

alleges

that

the

Defendants

retaliated

against him in violation of the First Amendment by issuing,
endorsing,

and/or

finding

him

guilty

of

false

disciplinary

reports. Plaintiff further claims that Defendants Akin, Gold,
and

Michaels

violated

his

Fourteenth

Amendment

due

process

rights during prison hearings that concerned the disciplinary
reports. Plaintiff has the burden of proving his claims.
Defendants respond that they did not retaliate against
Plaintiff

but

took

appropriate

measures

to

maintain

institutional order, and did not violate Plaintiff’s due process
rights during the prison disciplinary hearings.
7.

Raise your number if you have any knowledge of

the facts or events in this case or if there is anything about
the allegations which causes you to feel that you might not be a
fair juror in this case.
8.

Raise your number if there is any reason why you

will not be able to give your full attention to this case.
9.

Raise your number if you will not be able to

decide this case based solely on the evidence presented at the
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trial or if you are opposed to judging a witness’s credibility.
10.

Raise your number if you will not apply the law I

will give you if you believe a different law should apply.
11.

Would Plaintiff introduce himself, and indicate

any witness that he may choose to call.
12.

Would

Defendants’

attorneys

now

introduce

themselves, their clients, and indicate any witness that their
clients may choose to call.
Raise

your

number

if

you

know

or

have

had

any

interaction with any person just introduced or named.
13.

Raise your number if you have ever served as a

juror in the past.
State whether it was a civil or criminal case,
and state whether the jury reached a verdict, but do not state
the actual verdict reached.
14.

Raise

your

number

if

you,

any

member

of

your

family, or any close friend has ever been employed by a law
enforcement agency, including military law enforcement?
Is

there

anything

about

that

employment

which

might cause you to favor or disfavor any party in this case or
make it difficult for you to be a juror in this case?
15.

Raise your number if you would tend to believe

the testimony of a witness just because that witness is a law
enforcement officer and for no other reason?
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16.

On the other hand, raise your number if you would

tend not to believe testimony of a witness just because that
witness is a law enforcement officer?
17.

Raise your number if you have had any experience

or are aware of anything that could have a bearing on your
ability to be a fair and impartial juror in this case.
18.

Now, I am going to ask you to put yourselves in

the position of each lawyer and party in this case. Raise your
number if you have information that you think should be shared
before each side is given an opportunity to exercise what are
called peremptory challenges.
19.

The Courtroom Deputy Clerk will give juror number

one a sheet on which there are questions that I want each of you
to answer. Please pass the sheet to the juror next to you after
you answer the questions. The sheet asks you to state:
Your name and your educational background and the
educational background of any person residing with you; and
Your

present

and

former

occupations

and

the

present and former occupations of any person residing with you.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

DANNY JAMES COHEA,

No. 2:00-cv-02799-GEB-EFB

Plaintiff,
v.

PRELIMINARY JURY INSTRUCTIONS

J. COLVIN, D. McCARGAR, S.L.
BAUGHMAN, M.A. MICHEELS, R
YAMAMOTO, SD AKIN, D. ADAMS,
A GOLD, and S. SCARSELLA,
Defendants.

PRELIMINARY INSTRUCTION NO. 1

Ladies and gentlemen: You are now the jury in this
case. It is my duty to instruct you on the law.
These

instructions

are

preliminary

instructions

to

help you understand the principles that apply to civil trials
and to help you understand the evidence as you listen to it. At
the

end

of

the

trial,

I

will

give

you

a

final

set

of

instructions, which will govern your deliberations.
You must not infer from these instructions, or from
anything I may say or do, that I have an opinion regarding the
evidence or what your verdict should be.
It

is

your

duty

to

find

the

facts

from

all

the

evidence in the case. To those facts you will apply the law as I
give it to you. You must follow the law as I give it to you
whether you agree with it or not. And you must not be influenced
by

any

personal

likes

or

dislikes,

opinions,

prejudices,

or

sympathy. That means that you must decide the case solely on the
evidence before you.
In following my instructions, you must follow all of
them and not single out some and ignore others; they are all
important.

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PRELIMINARY INSTRUCTION NO. 2

I am now going to give you jury admonitions that you
must remember. When we take recesses, I may reference these
admonitions

by

telling

you

to

remember

the

admonitions

or

something similar to that. You are required to follow these
admonitions whether or not I remind you to remember them:
First, keep an open mind throughout the trial, and do
not decide what the verdict should be until you and your fellow
jurors have completed your deliberations at the end of the case.
Second, because you must decide this case based only
on the evidence received in the case and on my instructions as
to the law that applies, you must not be exposed to any other
information about the case or to the issues it involves during
the course of your jury duty. Thus, until the end of the case or
unless I tell you otherwise:
Do not communicate with anyone in any way and do not
let anyone else communicate with you in any way about the merits
of the case or anything to do with it. This includes discussing
the case in person, in writing, by phone or electronic means,
via e-mail, Facebook, text messaging, or any Internet chat room,
blog,

Web

site,

App,

or

other

feature.

This

applies

to

communicating with your fellow jurors until I give you the case
for deliberation, and it applies to communicating with everyone
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else

including

people

your

involved

in

family
the

members,

trial,

your

although

employer,

you

may

and

notify

the
your

family and your employer that you have been seated as a juror in
the case. But, if you are asked or approached in any way about
your jury service or anything about this case, you must respond
that you have been ordered not to discuss the matter and to
report the contact to the court.
Because you will receive all the evidence and legal
instruction you properly may consider to return a verdict: do
not read, watch, or listen to any news or media accounts or
commentary about the case or anything to do with it; do not do
any

research,

such

as

consulting

dictionaries,

searching

the

Internet, or using other reference materials; and do not make
any investigation or in any other way try to learn about the
case on your own. The law requires these restrictions to ensure
the parties have a fair trial based on the same evidence that
each party has had an opportunity to address.
Third, if you need to communicate with me, simply give
a signed note to my courtroom deputy, or to the court reporter
if my courtroom deputy is not present, who will give it to me.

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PRELIMINARY INSTRUCTION NO. 3

You

should

decide

the

case

as

to

each

Defendant

separately. Unless otherwise stated, the instructions apply to
all parties.

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PRELIMINARY INSTRUCTION NO. 4

The evidence you are to consider in deciding what the
facts are consists of:
the sworn testimony of any witness;
the exhibits that are received into evidence; and
any facts to which the parties agree.

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PRELIMINARY INSTRUCTION NO. 5

In reaching your verdict, you may consider only the
testimony and exhibits received into evidence. Certain things
are not evidence, and you may not consider them in deciding what
the facts are. I will list them for you:
First,

arguments

and

statements

by

Defendants’

attorneys and by Plaintiff, except when Plaintiff is testifying
under

oath,

witnesses

are

and

not

evidence.

Plaintiff

is

Defendants’

not

a

attorneys

witness

not

when

except

are

he

testifies under oath. What they say in their opening statements,
closing arguments, and at other times is intended to help you
interpret the evidence, but it is not evidence. If the facts as
you remember them differ from the way Defendants’ attorneys and
Plaintiff state them, your memory of the facts controls;
Second, questions and objections by the parties are
not

evidence.

The

parties

have

a

duty

to

object

when

they

believe a question is improper under the rules of evidence. You
should not be influenced by the objection or by the court’s
ruling on it;
Third, testimony that has been excluded or stricken,
or that you have been instructed to disregard, is not evidence
and must not be considered. In addition, sometimes testimony and
exhibits are received only for a limited purpose; when I give a
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limiting instruction, you must follow it;
Fourth, anything you see or hear when the court is not
in session is not evidence. You are to decide the case solely on
the evidence received at the trial.

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PRELIMINARY INSTRUCTION NO. 6

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.

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PRELIMINARY INSTRUCTION NO. 7

There are rules of evidence that control what can be
received into evidence. When Plaintiff or Defendants’ attorneys
ask a question or offer an exhibit into evidence, and another
party thinks that it is not permitted by the rules of evidence,
that party may object. If I overrule the objection, the question
may

be

answered

or

objection,

the

cannot

received.

be

the

question

exhibit
cannot

Whenever

received.

be
I

If

answered,
sustain

an

I

and

sustain
the

the

exhibit

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 that I told you to disregard.

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PRELIMINARY INSTRUCTION NO. 8

During

deliberations,

you

will

have

to

make

your

decision based on what you recall of the evidence. You will not
have

a

transcript

of

the

trial.

I

urge

you

to

pay

close

attention to the testimony as it is given.
If at any time during the trial you cannot hear what
is said or see what is shown, let me know so that I can correct
the problem.

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PRELIMINARY INSTRUCTION NO. 9

If you wish, you may take notes to help you remember
the evidence. 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. When you leave,
your notes should be left on the seat on which you are seated.
Whether or not you take notes, you should rely on your
own

memory

of

the

evidence.

Notes

are

only

to

assist

your

memory. You should not be overly influenced by your notes or
those of your fellow jurors.

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PRELIMINARY INSTRUCTION NO. 10

From time to time during the trial, it may become
necessary for me to talk with the parties out of the hearing of
the jury, either by having a conference at the bench when the
jury

is

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

not

to

keep

relevant

information from you, but to decide how certain evidence is to
be treated under the rules of evidence and to avoid confusion
and error.
Of course, we will do what we can to keep the number
and length of these conferences to a minimum. I may not always
grant a party’s request for a conference. Do not consider my
granting or denying a request for a conference as any indication
of my opinion of the case or of what your verdict should be.

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PRELIMINARY INSTRUCTION NO. 11

The next phase of the trial will now begin. First,
each party 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.
Plaintiff will then present evidence, and Defendants’
attorneys

may

cross-examine.

Then

Defendants

may

present

evidence, and Plaintiff may cross-examine.
After

the

evidence

has

been

presented,

the

parties

will make closing arguments, and I will instruct you on the law
that applies to the case.
After that, you will go to the jury room to deliberate
on your verdict.

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