Desantis et al., v. City of Santa Rosa et al.

Filing 180

COURT'S PROPOSED PRELIMINARY JURY INSTRUCTIONS. Signed by Judge Jeffrey S. White on August 23, 2012. Any objections must be filed no later than August 30, 2012. (wsn, COURT STAFF) (Filed on 8/23/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

PATRICIA DESANTIS, et al.

11
For the Northern District of California

United States District Court

10

12

No. C 07-03386 JSW

Plaintiffs,
v.

COURT’S PROPOSED
PRELIMINARY JURY
INSTRUCTIONS

CITY OF SANTA ROSA, et al.,

13

Defendants.

14
/
15
16

The parties are HEREBY ADVISED that the following constitutes the Court’s Proposed

17

Preliminary Jury Instructions. Any objections thereto must be filed by no later than August 30,

18

2012.

19
20
21
22
23
24
25
26
27
28

IT IS SO ORDERED.
Dated: August 23, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

1
2
3

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

4

These instructions are preliminary instructions to help you understand the principles that

5

apply to civil trials and to help you understand the evidence as you listen to it. You will be

6

allowed to keep this set throughout the trial to which to refer. This set of instructions is not to

7

be taken home and must remain in the jury room when you leave in the evenings. At the end of

8

the trial, I will give you a final set of instructions. It is the final set of instructions which will

9

govern your deliberations.
You must not infer from these instructions or from anything I may say or do as indicating

11
For the Northern District of California

United States District Court

10

that I have an opinion regarding the evidence or what your verdict should be. It is your duty to

12

find the facts from all the evidence in the case. To those facts you will apply the law as I give

13

it to you. You must follow the law as I give it to you whether you agree with it or not. And you

14

must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That

15

means that you must decide the case solely on the evidence before you. You will recall that you

16

took an oath to do so.

17
18

In following my instructions, you must follow all of them and not single out some and
ignore others; they are all important.

19
20
21
22
23
24
25
26
27
28
2

1
2
3
4

CLAIMS AND DEFENSES
To help you follow the evidence, I will give you a brief summary of the positions of
the parties.
Richard DeSantis was shot and killed in front of his home on the night of April 9,

5

2007 by Santa Rosa officers who responded to a 911 call by his wife, Patricia DeSantis.

6

Patricia DeSantis reported on the 911 call that Richard DeSantis had discharged a handgun

7

into the ceiling of their residence because he was “shooting at the people who were hiding up

8

in the attic,” that he was protecting his family, and that he was mentally unstable. Richard

9

DeSantis died from gun shot wounds from the Defendant Officers as he was approaching

11
For the Northern District of California

United States District Court

10

them and was pronounced dead at the scene of the incident.
The decedent’s wife, Patricia DeSantis, the decedent’s daughter, Dani DeSantis, and

12

the decedent’s mother, Adrianne DeSantis, are bringing claims against Sergeant Rich Celli

13

Officer Travis Menke and Officer Patricia Mann Seffens who were shot Mr. DeSantis.

14

Patricia and Dani DeSantis are also bringing a claim against the City of Santa Rosa on the

15

grounds that the City had a de facto policy of failing to discipline officers which encouraged

16

the use of excessive force.

17

You will be called upon to decide whether the Defendant Officers are liable for

18

excessive force and whether the City of Santa Rosa is liable for violating Plaintiffs’

19

constitutional rights. Plaintiffs bear the burden of proving their claims and of proving the

20

damages for these claims.

21

The Defendants deny all of Plaintiffs’ claims.

22
23
24
25
26
27
28
3

1

BURDEN OF PROOF

2

PREPONDERANCE OF THE EVIDENCE

3

When a party has the burden of proof on any claim by a preponderance of the

4

evidence, it means you must be persuaded by the evidence that the claim is more probably

5

true than not true.

6
7

You should base your decision on all of the evidence, regardless of which party
presented it.

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

1
2
3

TWO OR MORE PARTIES - DIFFERENT LEGAL RIGHTS
You should decide the case as to each party separately. Unless otherwise stated, the
instructions apply to all parties.

4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

1
2

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

3

1.

the sworn testimony of any witness;

4

2.

the exhibits which are received into evidence; and

5

3.

any facts to which the lawyers have agreed.

6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

1
2

WHAT IS NOT EVIDENCE
In reaching your verdict, you may consider only the testimony and exhibits received

3

into evidence. Certain things are not evidence, and you may not consider them in deciding

4

what the facts are. I will list them for you:

5

1.

Arguments and statements by lawyers are not evidence. The lawyers are not

6

witnesses. What they have said in their opening statements, and will say in their closing

7

arguments, and at other times is intended to help you interpret the evidence, but it is not

8

evidence. If the facts as you remember them differ from the way the lawyers have stated

9

them, your memory of them controls.
2.

Questions and objections by lawyers are not evidence. Attorneys have a duty

11
For the Northern District of California

United States District Court

10

to their clients to object when they believe a question is improper under the rules of

12

evidence. You should not be influenced by the objection or by the court’s ruling on it.

13

3.

Testimony that has been excluded or stricken, or that you have been instructed

14

to disregard, is not evidence and must not be considered. In addition sometimes testimony

15

and exhibits are received only for a limited purpose; when I give you a limiting instruction,

16

you must follow it.

17
18

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.

19
20
21
22
23
24
25
26
27
28
7

1

EVIDENCE FOR LIMITED PURPOSE

2

Some evidence may be admitted for a limited purpose only.

3

When I instruct you that an item of evidence has been admitted for a limited purpose,

4

you must consider it only for that limited purpose and for no other.

5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8

1
2

DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact,

3

such as testimony by a witness about what that witness personally saw or heard or did.

4

Circumstantial evidence is proof of one or more facts from which you could find another

5

fact. You should consider both kinds of evidence. The law makes no distinction between the

6

weight to be given to either direct or circumstantial evidence. It is for you to decide how

7

much weight to give to any evidence.

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9

1

RULING ON OBJECTIONS

2

There are rules of evidence that control what can be received into evidence. When a

3

lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side

4

thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule

5

the objection, the question may be answered or the exhibit received. If I sustain the

6

objection, the question cannot be answered, and the exhibit cannot be received. Whenever I

7

sustain an objection to a question, you must ignore the question and must not guess what the

8

answer might have been.

disregard or ignore the evidence. That means that when you are deciding the case, you must

11
For the Northern District of California

Sometimes I may order that evidence be stricken from the record and that you

10

United States District Court

9

not consider the evidence that I told you to disregard.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

1

CREDIBILITY OF WITNESSES

2

In deciding the facts in this case, you may have to decide which testimony to believe

3

and which testimony not to believe. You may believe everything a witness says, or part of it,

4

or none of it. Proof of a fact does not necessarily depend on the number of witnesses who

5

testify about it.

6

In considering the testimony of any witness, you may take into account:

7

1.

8

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

testified to;
the witness’s memory;

3.

the witness’s manner while testifying;

11
For the Northern District of California

2.

10

United States District Court

9

4.

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

12

5.

whether other evidence contradicted the witness’s testimony;

13

6.

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

14

7.

any other factors that bear on believability.

15

The weight of the evidence as to a fact does not necessarily depend on the number of

16

witnesses who testify about it.

17
18
19
20
21
22
23
24
25
26
27
28
11

1
2

NO TRANSCRIPT AVAILABLE TO JURY
During deliberations, you will have to make your decision based on what you recall

3

of the evidence. You will not have a transcript of the trial. I urge you to pay close attention

4

to the testimony as it is given.

5
6

If at any time you cannot hear or see the testimony, evidence, questions or arguments,
let me know so that I can correct the problem.

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12

1
2

TAKING NOTES
If you wish, you may take notes to help you remember the evidence. If you do take

3

notes, please keep them to yourself until you and your fellow jurors go to the jury room to

4

decide the case. Do not let note-taking distract you. When you leave, your notes should be

5

left in the courtroom. No one will read your notes. They will be destroyed at the conclusion

6

of the case.

7

Whether or not you take notes, you should rely on your own memory of the evidence.

8

Notes are only to assist your memory. You should not be overly influenced by your notes or

9

those of your fellow jurors.

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13

1

QUESTIONS TO WITNESSES BY JURORS

2

You will be allowed to propose written questions to witnesses after the lawyers have

3

completed their questioning of each witness. You may propose questions in order to clarify

4

the testimony, but you are not to express any opinion about the testimony or argue with a

5

witness. If you propose any questions, remember that your role is that of a neutral fact

6

finder, not an advocate.

7

Before I excuse each witness, I will offer you the opportunity to write out a question

8

on a form provided by the court. Do not sign the question. I will review the question with

9

the attorneys to determine if it is legally proper.
There are some proposed questions that I will not permit, or will not ask in the

11
For the Northern District of California

United States District Court

10

wording submitted by the juror. This might happen either due to the rules of evidence or

12

other legal reasons, or because the question is expected to be answered later in the case. If I

13

do not ask a proposed question, or if I rephrase it, do not speculate as to the reasons. Do not

14

give undue weight to questions you or other jurors propose. You should evaluate the

15

answers to those questions in the same manner you evaluate all of the other evidence.

16

By giving you the opportunity to propose questions, I am not requesting or suggesting

17

that you do so. It will often be the case that a lawyer has not asked a question because it is

18

legally objectionable or because a later witness may be addressing that subject.

19
20
21
22
23
24
25
26
27
28
14

1
2

BENCH CONFERENCES AND RECESSES
From time to time during the trial, it may become necessary for me to talk with the

3

attorneys out of the hearing of the jury, either by having a conference at the bench when the

4

jury is present in the courtroom, or by calling a recess. Please understand that while you are

5

waiting, we are working. The purpose of these conferences is not to keep relevant

6

information from you, but to decide how certain evidence is to be treated under the rules of

7

evidence and to avoid confusion and error.

conferences to a minimum. I may not always grant an attorney’s request for a conference.

10

Do not consider my granting or denying a request for a conference as any indication of my

11
For the Northern District of California

Of course, we will do what we can to keep the number and length of these

9

United States District Court

8

opinion of the case or of what your verdict should be.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15

1
2

OUTLINE OF TRIAL
Trials proceed in the following way: First, each side may make an opening

3

statement. An opening statement is not evidence. It is simply an outline to help you

4

understand what that party expects the evidence will show. A party is not required to make

5

an opening statement.

6

The plaintiff will then present evidence, and counsel for the defendant may

7

cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may

8

cross-examine.

9

11
For the Northern District of California

United States District Court

10

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.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16

1

CONDUCT OF THE JURY

2

I will now say a few words about your conduct as jurors.

3

First, keep an open mind throughout the trial, and do not decide what the verdict

4

should be until you and your fellow jurors have completed your deliberations at the end of

5

the case.

6

Second, because you must decide this case based only on the evidence received in the

7

case and on my instructions as to the law that applies, you must not be exposed to any other

8

information about the case or to the issues it involves during the course of your jury duty.

9

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

11
For the Northern District of California

United States District Court

10

with you in any way about the merits of the case or anything to do with it. This includes

12

discussing the case in person, in writing, by phone or electronic means, via e-mail, text

13

messaging, or in or on any Internet chat room, blog, website (including such social

14

networking media like Facebook, My Space, LinkedIn, You Tube, and Twitter) or other

15

feature. This applies to communicating with your fellow jurors until I give you the case for

16

deliberation, and it applies to communicating with everyone else including your family

17

members, your employer, the media or press, and the people involved in the trial, although

18

you may notify your family and your employer that you have been seated as a juror in the

19

case. However, you may discuss with fellow jurors the testimony as it is presented,

20

provided that all jurors are present for the discussion. You are to keep an open mind

21

throughout the case until you have fully deliberated. But, if you are asked or approached

22

in any way about your jury service or anything about this case, you must respond that you

23

have been ordered not to discuss the matter and to report the contact to the court.

24

Because you will receive all the evidence and legal instruction you properly may

25

consider to return a verdict: do not read, watch, or listen to any news or media accounts or

26

commentary about the case or anything to do with it; do not do any research, such as

27

consulting dictionaries, searching the Internet or using other reference materials; and do not

28

make any investigation or in any other way try to learn about the case on your own.
17

1

The law requires these restrictions to ensure the parties have a fair trial based on the

2

same evidence that each party has had an opportunity to address. A juror who violates these

3

restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that

4

would require the entire trial process to start over. If any juror is exposed to any outside

5

information, please notify the court immediately.

6
7

.

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18