Truong, et al v. Sacramento County Sheriff's Department, et al

Filing 110

FINAL PRETRIAL ORDER signed by Chief Judge Morrison C. England, Jr., on 1/27/15. A trial is SET for 7/20/2015 at 09:00 AM in Courtroom 7 (MCE) before Chief Judge Morrison C. England, Jr.. The estimated length of trial is six (6)days. (Attachments: # 1 Attachment 1, # 2 Attachment 2). (Kastilahn, A)

1.1A DUTY OF JURY (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS)
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. You will be allowed to keep this set throughout the trial to which to refer. This set
of instructions is not to be taken home and must remain in the jury room when you leave
in the evenings. At the end of the trial, I will give you a final set of instructions. It is the
final set of instructions which will govern your deliberations.
You must not infer from these instructions or from anything I may say or do as
indicating 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. You will recall that you took an oath to do so.
In following my instructions, you must follow all of them and not single out some
and ignore others; they are all important.

1.1C DUTY OF JURY
Members of the Jury: Now that you have heard all of the evidence [and the
arguments of the attorneys/parties], it is my duty to instruct you as to the law of the
case.
A copy of these instructions will be sent with you to the jury room when you
deliberate.
You must not infer from these instructions or from anything I may say or do as
indicating 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. You will recall that you took an oath to do so.
In following my instructions, you must follow all of them and not single out some
and ignore others; they are all important.

1.3 BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE
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.

COMMENT
This instruction may not apply to cases based on state law.

1.6 WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
1.

the sworn testimony of any witness;

2.

the exhibits which are received into evidence; and

3.

any facts to which the lawyers have agreed.

1.7 WHAT IS NOT EVIDENCE
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:
(1)
Arguments and statements by lawyers are not evidence. The lawyers are
not witnesses. What they have said in their opening statements, [will say in their] 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 the lawyers have
stated them, your memory of them controls.
(2)
Questions and objections by lawyers are not evidence. Attorneys have a
duty to their clients 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.
(3)
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]
[have given] a limiting instruction, you must follow it.
(4)
Anything you may have seen or heard when the court was not in session
is not evidence. You are to decide the case solely on the evidence received at the trial.

COMMENT
With regard to the bracketed material in paragraph 3, select the appropriate
bracket depending on whether the instruction is given at the beginning or at the end of
the case. See also Instruction 1.6 (What Is Evidence).

1.9 DIRECT AND CIRCUMSTANTIAL EVIDENCE
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.

COMMENT
It may be helpful to include an illustrative example in the instruction:
By way of example, if you wake up in the morning and see that the sidewalk is
wet, you may find from that fact that it rained during the night. However, other evidence,
such as a turned on garden hose, may provide a different explanation for the presence
of water on the sidewalk. Therefore, before you decide that a fact has been proved by
circumstantial evidence, you must consider all the evidence in the light of reason,
experience, and common sense.

1.11 CREDIBILITY OF WITNESSES
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. Proof of a fact does not necessarily depend on the number of
witnesses who testify about it.
In considering the testimony of any witness, you may take into account:
(1)
testified to;

the opportunity and ability of the witness to see or hear or know the things

(2)

the witness’s memory;

(3)

the witness’s manner while testifying;

(4)
prejudice;

the witness’s interest in the outcome of the case and any bias or

(5)

whether other evidence contradicted the witness’s testimony;

(6)

the reasonableness of the witness’s testimony in light of all the evidence;

(7)

any other factors that bear on believability.

and

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

2.8 IMPEACHMENT EVIDENCE—WITNESS
The evidence that a witness [e.g., has been convicted of a crime, lied under oath
on a prior occasion, etc.] may be considered, along with all other evidence, in deciding
whether or not to believe the witness and how much weight to give to the testimony of
the witness and for no other purpose.

COMMENT
If this instruction is given during the trial, the committee recommends giving the
second sentence in numbered paragraph 3 of Instruction 1.7 (What Is Not Evidence)
with the concluding instructions. See also Instruction 1.8 (Evidence for Limited
Purpose).

2.11 EXPERT OPINION
Some witnesses, because of education or experience, are permitted to state
opinions and the reasons for those opinions.
Opinion testimony should be judged just like any other testimony. You may
accept it or reject it, and give it as much weight as you think it deserves, considering the
witness’s education and experience, the reasons given for the opinion, and all the other
evidence in the case.

COMMENT
SEE FED. R. EVID. 602, 701–05.

2.12 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE
Certain charts and summaries not received in evidence [may be] [have been]
shown to you in order to help explain the contents of books, records, documents, or
other evidence in the case. They are not themselves evidence or proof of any facts. If
they do not correctly reflect the facts or figures shown by the evidence in the case, you
should disregard these charts and summaries and determine the facts from the
underlying evidence.

COMMENT
This instruction applies only where the charts and summaries are not received
into evidence and are used for demonstrative purposes. See Jury Instructions
Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 3.10A (2004).

2.13 CHARTS AND SUMMARIES IN EVIDENCE
Certain charts and summaries [may be] [have been] received into evidence to
illustrate information brought out in the trial. Charts and summaries are only as good as
the underlying evidence that supports them. You should, therefore, give them only such
weight as you think the underlying evidence deserves.

COMMENT
See United States v. Johnson, 594 F.2d 1253, 1254-55 (9th Cir.1979) (error to
permit the introduction of a summary of evidence without the establishment of a
foundation for the evidence). See also Fed. R. Evid. 1006. See also Jury Instructions
Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 3.10A(1) (2004).
This instruction may be unnecessary if there is no dispute as to the accuracy of the
chart or summary.

2.14 EVIDENCE IN ELECTRONIC FORMAT
Those exhibits capable of being displayed electronically will be provided to you in
that form, and you will be able to view them in the jury room. A computer, projector,
printer and accessory equipment will be available to you in the jury room.
A court technician will show you how to operate the computer and other
equipment; how to locate and view the exhibits on the computer; and how to print the
exhibits. You will also be provided with a paper list of all exhibits received in evidence.
(Alternatively, you may request a paper copy of an exhibit received in evidence by
sending a note through the [clerk] [Court Security Officer].) If you need additional
equipment or supplies, you may make a request by sending a note.
In the event of any technical problem, or if you have questions about how to
operate the computer or other equipment, you may send a note to the [clerk] [Court
Security Officer], signed by your foreperson or by one or more members of the jury. Be
as brief as possible in describing the problem and do not refer to or discuss any exhibit
you were attempting to view.
If a technical problem or question requires hands-on maintenance or instruction,
a court technician may enter the jury room [with [the clerk] [the Court Security Officer]
[me] present for the sole purpose of assuring that the only matter that is discussed is
the technical problem.] When the court technician or any non-juror is in the jury room,
the jury shall not deliberate. No juror may say anything to the court technician or any
non-juror other than to describe the technical problem or to seek information about
operation of equipment. Do not discuss any exhibit or any aspect of the case.
The sole purpose of providing the computer in the jury room is to enable jurors to
view the exhibits received in evidence in this case. You may not use the computer for
any other purpose. At my direction, technicians have taken steps to make sure that the
computer does not permit access to the Internet or to any “outside” website, database,
directory, game, or other material. Do not attempt to alter the computer to obtain access
to such materials. If you discover that the computer provides or allows access to such
materials, you must inform me immediately and refrain from viewing such materials. Do
not remove the computer or any electronic data [disk] from the jury room, and do not
copy any such data.
COMMENT
This instruction is premised on the assumption that the parties have stipulated in
writing to the availability of electronic display devices in the jury room and to the
procedures set forth in the instruction. The stipulation should be subject to approval by
the judge and entered as an order. It should contain the following provisions:
1. The parties agree to an allocation of the costs of providing the necessary
equipment, including the computer, hard drive, projector, cable, printer, monitor

and other accessories.
2. The parties jointly will arrange to load images of the admitted exhibits onto a
hard drive in “PDF” format. (This format is meant to assure maximum security.)
They shall assure that the hard drive contains only such items and nothing else.
3. The parties jointly will compile a document entitled “Admitted Exhibit List” that
consists of all trial exhibits actually received into evidence, listed in numerical
order and containing the date (where available) and a brief description of the
exhibit. The Admitted Exhibit List should be text searchable. (In complicated or
document-laden cases, it would be advisable for the parties to prepare a second
exhibit list that would contain the same information, except that the exhibits
would be listed in chronological order. That second list would be made available
to the jury in "hard copy," not electronic form.)
4. Before the jury retires to deliberate, the parties will review the notebook
computer, the exhibit list interface and the images of the exhibits, to assure their
accuracy. Unless a party objects before the jury retires to deliberate, that party
will waive all objections to the materials and equipment submitted to the jury.
5. The parties shall maintain at the courthouse a backup notebook computer and
a backup hard drive with images and data identical to what was loaded onto the
hard drive sent into the jury room.
6. [During the “tutorial” that the technician provides in the jury room and on any
later occasion that a technician enters the jury room to address a technical
problem or matter, the judge will be present and the court reporter will record
what is said.]
Paragraph 6 of the recommended stipulation is bracketed because if the jury
encounters a technical problem after it has begun to deliberate, a variety of potentially
difficult issues can arise. Inevitably, the technician will require and receive information
from one or more jurors about the difficulty the jury is encountering. In many instances,
the court technician will need to re-enter the jury room in order to address the problem.
It is conceivable that the technician will be exposed to evidence that the jury was
attempting to view or at least to the exhibit number(s) of such evidence. If the jurors
themselves had developed charts, summaries, vote tallies or other indicia of their
deliberations, or if they had written summaries of their findings thus far, the technician
might be exposed to that information. (E.g., such matters could have been placed on a
blackboard or in summaries strewn about the jury table.) If the judge and court reporter
enter the jury room they, too, could be exposed to aspects of the jury’s deliberations
that are not supposed to be revealed. The committee therefore suggests that in the
event that a non-juror might be required to enter the jury room to deal with a technical
problem, the judge should sua sponte raise these and related issues with counsel,
before authorizing such entry. Among the factors that the judge and counsel should
discuss are the following.

(a) Can the technical problem be addressed without entry into the room; e.g., by
removing the equipment for examination outside the presence of jurors?
(b) Can the technical problem be addressed without any information from the jury
other than an innocuous statement to the effect that (for example) “the printer
isn’t working”?
(c) Can the risk of even inadvertent disclosure of the jury’s deliberations be
eliminated by instructing the jury to cover any charts and to remove or conceal
any papers, etc.?
(d) Should the technician, Court Security Officer or clerk be sworn in, with an
oath that requires them not to disclose whatever they see or hear in the jury
room, except for the nature of the technical problem and whether the problem
has been fixed?
Whether or not these or other appropriate precautions to minimize or eliminate
the risk of disclosure are taken, the judge may consider giving the jury this instruction:
You have informed me that there is a technical problem that has interfered
with your ability to review evidence electronically. I will send a technician
into the jury room to deal with the problem. Please do not allow any
materials reflecting any aspect of your deliberations to be visible during
the technician’s presence.
Finally, if Instruction 2.14 is given in a criminal case, the judge should not permit
any tape-recorded conversation or evidence to be included in the electronic evidence
loaded onto the hard drive that contains the PDF files, because under Fed. R. Crim. P.
43, the defendant has a right to be present at the replaying of a tape. United States v.
Felix-Rodriguez, 22 F.3d 964, 966-67 (9th Cir.1994).

3.1 DUTY TO DELIBERATE
When you begin your deliberations, you should elect one member of the jury as
your presiding juror. That person will preside over the deliberations and speak for you
here in court.
You will then discuss the case with your fellow jurors to reach agreement if you
can do so. Your verdict must be unanimous.
Each of you must decide the case for yourself, but you should do so only after
you have considered all of the evidence, discussed it fully with the other jurors, and
listened to the views of your fellow jurors.
Do not hesitate to change your opinion if the discussion persuades you that you
should. Do not come to a decision simply because other jurors think it is right.
It is important that you attempt to reach a unanimous verdict but, of course, only
if each of you can do so after having made your own conscientious decision. Do not
change an honest belief about the weight and effect of the evidence simply to reach a
verdict.

3.1A CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY
Because you must base your verdict only on the evidence received in the case
and on these instructions, I remind you that you must not be exposed to any other
information about the case or to the issues it involves. Except for discussing the case
with your fellow jurors during your deliberations:
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 email, text messaging, or any Internet chat
room, blog, website or other feature. This applies to communicating with
your family members, your employer, the media or press, and the people
involved in the trial. 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.
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. A juror who
violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial
could result that would require the entire trial process to start over]. If any juror is
exposed to any outside information, please notify the court immediately.

3.2 COMMUNICATION WITH COURT
If it becomes necessary during your deliberations to communicate with me, you
may send a note through the Court Security Officer, signed by your presiding juror or by
one or more members of the jury. No member of the jury should ever attempt to
communicate with me except by a signed writing; I will communicate with any member
of the jury on anything concerning the case only in writing, or here in open court. If you
send out a question, I will consult with the parties before answering it, which may take
some time. You may continue your deliberations while waiting for the answer to any
question. Remember that you are not to tell anyone—including me—how the jury
stands, numerically or otherwise, until after you have reached a unanimous verdict or
have been discharged. Do not disclose any vote count in any note to the court.

3.3 RETURN OF VERDICT
A verdict form has been prepared for you. [Any explanation of the verdict form
may be given at this time.] After you have reached unanimous agreement on a verdict,
your presiding juror will fill in the form that has been given to you, sign and date it, and
advise the court that you are ready to return to the courtroom.

COMMENT
The judge may also wish to explain to the jury the particular form of verdict being
used and just how to “advise the court” of a verdict.

9.1 SECTION 1983 CLAIM—INTRODUCTORY INSTRUCTION
The plaintiff brings [his] [her] claim[s] under the federal statute, 42 U.S.C. § 1983,
which provides that any person or persons who, under color of law, deprives another of
any rights, privileges, or immunities secured by the Constitution or laws of the United
States shall be liable to the injured party.

9.2 SECTION 1983 CLAIM AGAINST DEFENDANT IN INDIVIDUAL CAPACITY—
ELEMENTS AND BURDEN OF PROOF
In order to prevail on [his] [her] § 1983 claim against the defendant [name of
individual defendant], the plaintiff must prove each of the following elements by a
preponderance of the evidence:
1

the defendant acted under color of law; and

2
the act[s] of the defendant deprived the plaintiff of [his] [her] particular
rights under [the laws of the United States] [and the United States Constitution] as
explained in later instructions.
A person acts “under color of law” when the person acts or purports to act in the
performance of official duties under any state, county, or municipal law, ordinance, or
regulation. [[The parties have stipulated] [I instruct you] that the defendant acted under
color of law.]

9.8 CAUSATION
In order to establish that the act[s] of the defendant [specify name of individual
defendant, supervisor's subordinates, local governing body, or local body's official,
police officer, employee, or final policymaker] deprived the plaintiff of [his] [her]
particular rights under [the laws of the United States] and [the United States
Constitution] as explained in later instructions, the plaintiff must prove by a
preponderance of the evidence that the act[s] [failure to act] [was] [were] so closely
related to the deprivation of the plaintiff's rights as to be the moving force that caused
the ultimate injury.

9.24 PARTICULAR RIGHTS—EIGHTH AMENDMENT—
PRISONER'S CLAIM OF EXCESSIVE FORCE
As previously explained, the plaintiff has the burden to prove that the act[s] of the
defendant [name] deprived the plaintiff of particular rights under the United States
Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his]
[her] rights under the Eighth Amendment to the Constitution when [insert factual basis of
the plaintiff's claim].
Under the Eighth Amendment, a convicted prisoner has the right to be free from
“cruel and unusual punishments.” In order to prove the defendant deprived the plaintiff
of this Eighth Amendment right, the plaintiff must prove the following additional
elements by a preponderance of the evidence:
1
the defendant used excessive and unnecessary force under all of the
circumstances;
2
harm; and
3

the defendant acted maliciously and sadistically for the purpose of causing

the act[s] of the defendant caused harm to the plaintiff.

In determining whether the defendant used excessive force in this case, consider
the need to use force, the relationship between that need and the amount of force used,
whether defendant applied the force in a good faith effort to maintain or restore
discipline, any threat reasonably perceived by the defendant, any efforts made to
temper the severity of a forceful response, and the extent of the injury suffered. In
considering these factors, you should give deference to prison officials in the adoption
and execution of policies and practices that in their judgment are needed to preserve
discipline and to maintain internal security in a prison.