Solomon v. City of South Lake Tahoe et al
Filing
89
ORDER DENYING TRIAL CONTINUANCE signed by Judge Garland E. Burrell, Jr. on 1/16/2015 ORDERING 85 Plaintiff' continuance request is DENIED. ATTACHED are the Court's proposed voir dire questions and preliminary jury instructions. Any propos ed modifications should be submitted as soon as practicable. As noted in the proposed voir dire, it is anticipated that it will take 2-3 court days for the parties to present evidence and closing arguments. Trial will be conducted on Wednesday and Thursday of next week from 9:00 AM to about 4:30 PM, and Friday from 10:00 AM to about 4:30 PM. Once jury deliberations commence, the jury is expected to deliberate every day except weekends from 9:00 AM to about 4:30 PM. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICK WAYNE SOLOMON,
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No.
2:13-cv-00115-GEB-CKD
Plaintiff,
v.
ORDER DENYING TRIAL CONTINUANCE;
PROPOSED TRIAL DOCUMENTS
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OFFICER J. HERMINGHAUS,
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Defendant.
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On January 15, 2015, Plaintiff filed a motion seeking
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to continue trial “due to the fact that Plaintiff’s father passed
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away.” (Pl.’s Mot. to Continue Trial (“Mot.”) 1:22-24, ECF No.
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85.) Plaintiff argues:
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[Plaintiff’s] father passed away and his
military memorial service with honors is set
in Florida for January 27, 2015, which is the
third day set for trial in this matter.
Considering
jury
selection
and
pretrial
motions, it is unlikely that the trial would
be complete by the third day. Even so, Mr.
Solomon is leaving for Florida to be with
family and will not be available for even the
first
days
of
trial.
Under
these
circumstances
the
Court
is
within
its
discretion to grant a continuance due to the
death in Mr. Solomon’s immediate family.
Moreover, the Defendant will not be unduly
prejudiced by a later court date, whereas, if
the continuance is not granted, Plaintiff
will prejudiced to the point of being unable
to proceed or present his case at all. It
would be patently unfair to not grant this
Motion and thereby force Plaintiff to choose
between being with family at this important
time, or forfeit his case.
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(Id. at 3:6-19.)
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Defendant opposes a continuance, rejoining that this
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request
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trial. (Def.’s Opp’n 2:1-14.) Defendant contends:
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is
the
simply
another
attempt
by
Plaintiff
Plaintiff’s father passed away on December 8,
2014[,] but not a word was spoken of the
death
until
January
12,
2015.
On
the
contrary, the history of Plaintiff’s attempts
to continue to trial are completely unrelated
to the latest excuse provided by the funeral
of Plaintiff’s father. For example:
On January 6, 2015, Plaintiff’s Attorney
Joseph Laub called defense counsel seeking a
continuance of trial because a relative of
counsel had scheduled an out of town wedding
(there was no mention that Plaintiff’s father
had passed away or of any impending funeral).
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When defense counsel would not agree to
continue the trial because of the wedding,
Attorney Laub asked to continue trial so that
the parties could engage in arbitration.
Defense counsel declined the invitation and
expressed readiness for trial.
On January 12, 2015, Attorney Laub left
a voicemail message for defense counsel
seeking to continue trial because Plaintiff’s
father “had just passed away”.
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After an exchange of voicemails, Defense
counsel FAX’d a letter to Plaintiff’s counsel
seeking verification that Plaintiff’s father
had in fact “just passed away” due to
skepticism
resulting
from
Plaintiff’s
history.
While defense counsel was traveling to
South Carolina for unrelated depositions on
January
15,
2015,
Plaintiff’s
counsel
provided a copy of the death certificate
verifying that Plaintiff’s father had passed
away on December 8, 2014, as opposed to “just
passed away”. It was also verified that
Plaintiff’s father had been cremated and that
a memorial service was scheduled for January
27, 2015 (i.e. six weeks after the death and
at a time when Plaintiff had known for over a
year that trial in this matter has been set
for January 21, 2015).
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to
avoid
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(Id. at 2:26-3:25 (bullets and citations omitted).) Defendant
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further
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scheduled for over a year[,]” and
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It would be unduly
continue trial because:
argues
that
he
“is
ready
for
trial
prejudicial
which
to
has
been
now
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Defense counsel has made irrevocable
travel arrangements to attend trial as
scheduled by the Court and will incur
substantial cancellation fees if required to
reschedule such arrangements.
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Defendant
has
served
subpoenas
to
witnesses who have adjusted work and personal
schedules to accommodate the current trial
date.
Defendant has adjusted his own work (and
personal) schedule as a police officer and
arranged for coverage of his duties to
accommodate trial.
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Defense counsel has cleared his calendar
to conduct this trial as scheduled and, with
more than a dozen other federal trials
currently scheduled throughout 2015, it would
be difficult to clear another date to
reschedule this trial.
(Id. at 4:2-16 (bullets omitted).)
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Plaintiff’s continuance request is untimely; the trial
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commencement date has been scheduled since April 18, 2013, and
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Plaintiff’s father passed away on December 8, 2014, more than a
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month before the trial commencement date. Further, a sufficient
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explanation has not been provided concerning why the memorial
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service should not have been scheduled on a different date, in
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light of the known trial date. Also, it appears likely that trial
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will be completed next week, since only one excessive force claim
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is being tried.
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For the stated reasons, Plaintiff’s continuance request
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is denied. Attached are the Court’s proposed voir dire questions
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and
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should be submitted as soon as practicable.
preliminary
jury
instructions.
Any
proposed
modifications
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As noted in the proposed voir dire, it is anticipated
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that it will take 2-3 court days for the parties to present
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evidence
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Wednesday and Thursday of next week from 9:00 a.m. to about 4:30
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p.m., and Friday from 10:00 a.m. to about 4:30 p.m. Once jury
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deliberations commence, the jury is expected to deliberate every
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day except weekends from 9:00 a.m. to about 4:30 p.m.
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Dated:
and
closing
arguments.
January 16, 2015
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Trial
will
be
conducted
on
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
PATRICK WAYNE SOLOMON,
No. 2:13-cv-00115-GEB-CKD
Plaintiff,
v.
VOIR DIRE
OFFICER J. HERMINGHAUS,
Defendant.
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
peremptory
challenges,
which
excuse
a
potential
juror
from
sitting as a juror on this case. A potential juror can also be
excused for other reasons.
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1.
Ms. Furstenau, please administer the oath to the
2.
Counsel, the Jury Administrator randomly selected
panel.
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.
4.
If you conclude any question unduly pries into
your private affairs and you, therefore, wish to discuss it
privately,
let
me
know.
While
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I’m
authorized
under
law
to
protect
your
legitimate
privacy
interest,
I
may
ask
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.
I anticipate it will take 2-3 court days for the
parties to present evidence and closing arguments to you, after
which you will retire to deliberate on the case. Trial will be
conducted on Wednesday and Thursday of this week from 9:00 a.m.
to about 4:30 p.m., and Friday from 10:00 a.m. to about 4:30
p.m.
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.
whether
the
This is a civil case in which the parties dispute
plaintiff
was
subjected
to
excessive
force
in
violation of the Fourth Amendment during his arrest.
On
Correctional
Department
to
January
Officer
report
21,
2011,
called
that
an
the
the
off-duty
South
plaintiff
El
Lake
Dorado
County
Tahoe
Police
committed
a
battery
against him at the entrance to the Raley’s supermarket in South
Lake Tahoe. The defendant, a South Lake Tahoe Police Officer,
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was sent to respond to the call.
When the defendant contacted the plaintiff inside the
market, plaintiff alleges defendant used excessive force while
taking
alleges
him
into
custody
plaintiff
for
physically
the
alleged
resisted
battery.
arrest
and
Defendant
that
only
reasonable force was used to take him into custody.
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
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.
Plaintiff’s counsel may introduce herself and her
client, and indicate any witness her client may choose to call.
Defendant’s counsel may now do the same thing.
Raise
your
number
if
you
know
or
have
had
any
interaction with any person just introduced or named.
12.
Raise your number if you have ever served as a
juror in the past.
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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.
13.
Raise
your
number
if
you,
any
member
of
your
family, or any close friend has ever been employed by a law
enforcement agency?
Is
there
anything
about
the
experience
which
might cause you to favor or disfavor either party in this case
or make it difficult for you to be a juror in this case?
14.
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?
15.
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?
16.
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.
17.
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.
18.
The Courtroom Deputy Clerk will give juror number
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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
PATRICK WAYNE SOLOMON,
No. 2:13-cv-00115-GEB-CKD
Plaintiff,
v.
PRELIMINARY JURY INSTRUCTIONS
OFFICER J. HERMINGHAUS,
Defendant.
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. 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, 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 clerk, or to the court reporter if
my courtroom clerk is not present, who will give it to me.
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PRELIMINARY INSTRUCTION NO. 3
There are rules of evidence that control what can be
received into evidence. When a lawyer asks a question or offers
an exhibit into evidence, and a lawyer on the other side thinks
that it is not permitted by the rules of evidence, that lawyer
may object. If I overrule the objection, the question may be
answered or the exhibit received. If I sustain the objection,
the
question
cannot
be
answered,
and
the
exhibit
cannot
be
received. Whenever I sustain an 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. 4
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
lawyers
are
not
evidence. The lawyers are not witnesses. What they will 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
the lawyers have stated them, your memory of them controls;
Second, 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;
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
limiting instruction, you must follow it;
Fourth, anything you may have seen or heard when the
court was not in session is not evidence. You are to decide the
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case solely on the evidence received at the trial.
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PRELIMINARY INSTRUCTION NO. 5
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. 6
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. 7
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. 8
From time to time during the trial, it may become
necessary for me to talk with the attorneys 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 an attorney’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. 9
The next phase of the trial will now begin. First,
each side 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.
The plaintiff will then present evidence, and counsel
for
the
present
defendant
evidence,
may
and
cross-examine.
counsel
for
Then
the
the
defendant
plaintiff
may
may
cross-
examine.
After the evidence has been presented, I will instruct
you on the law that applies to the case and the attorneys will
make closing arguments.
After that, you will go to the jury room to deliberate
on your verdict.
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