Rosenblatt v. City of Hillsborough et al
PRELIMINARY JURY INSTRUCTIONS. Signed by Magistrate Judge Laurel Beeler on 1/22/2014. (ls, COURT STAFF) (Filed on 1/22/2014)
1.0 COVER SHEET
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
TOWN OF HILLSBOROUGH et al.
No. C 12-1250 LB
DATED: January 22, 2014
United States Magistrate Judge
1.1B DUTY OF JURY (COURT READS INSTRUCTIONS ONLY)
Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on
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.
1.2 CLAIMS AND DEFENSES
To help you follow the evidence, I will give you a brief summary of the positions of the
parties at trial. This is a civil lawsuit. The plaintiff is Jerrold Rosenblatt. The Defendants are
Sergeant Patrick Aherne of the Hillsborough Police Department, Matt O’Connor, who was the
Town of Hillsborough’s Chief of Police at the time, and the Town of Hillsborough.
On August 20, 2011 Patrick Aherne discharged his Taser at Plaintiff Jerrold Rosenblatt
while arresting him. Plaintiff alleges that Defendant Patrick Aherne’s use of his Taser was an
excessive use of force against him and further alleges that he was unlawfully arrested in his
home on August 20, 2011, in violation of his rights under the Fourth Amendment to the United
States Constitution. Plaintiff Jerrold Rosenblatt alleges that Defendant Patrick Aherne acted
with the intent to interfere with Plaintiff’s civil rights by threats, intimidation, or coercion, in
violation of his rights under California state law, and that his actions were negligent. Plaintiff
Jerrold Rosenblatt alleges that Defendant Matt O’Connor, who was the Town of Hillsborough’s
Chief of Police at the time, ratified Defendant Aherne’s violation of Plaintiff’s constitutional
rights. Plaintiff further alleges that Matt O’Connor and the Town of Hillsborough were
responsible for a policy that permitted Hillsborough Police Officers to use a Taser gun against a
citizen in circumstances that constitute excessive force and that this policy caused the violation
of Plaintiff’s constitutional rights. Defendants generally deny all of these claims.
1.3 BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE
When a party has the burden of proof on any claim by a preponderance of the evidence, it
means you must be persuaded by the evidence that the claim is more probably true than not true.
You should base your decision on all of the evidence, regardless of which party presented
1.5 TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS
You should decide the case as to each defendant separately. Unless otherwise stated, the
instructions apply to all parties.
1.6 WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
the sworn testimony of any witness;
the exhibits which are received into evidence; and
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.
1.8 EVIDENCE FOR LIMITED PURPOSE
Some evidence may be admitted for a limited purpose only.
When I instruct you that an item of evidence has been admitted for a limited purpose, you
must consider it only for that limited purpose and for no other.
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
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.
1.10 RULING ON OBJECTIONS
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
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.
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
In considering the testimony of any witness, you may take into account:
(1) the opportunity and ability of the witness to see or hear or know the things testified
(2) the witness’s memory;
(3) the witness’s manner while testifying;
(4) the witness’s interest in the outcome of the case and any bias or prejudice;
(5) whether other evidence contradicted the witness’s testimony;
(6) the reasonableness of the witness’s testimony in light of all the evidence; and
(7) any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify about it.
1.12 CONDUCT OF THE JURY
I will now say a few words about your conduct as jurors.
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, text
messaging, or any Internet chat room, blog, Web site 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 else including your family members, your
employer, the media or press, and the people involved in the trial, although you may
notify 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. 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.
1.13 NO TRANSCRIPT AVAILABLE TO JURY
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 you cannot hear or see the testimony, evidence, questions or arguments, let
me know so that I can correct the problem.
1.14 TAKING NOTES
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 in the
courtroom. No one will read your notes. They will be destroyed at the conclusion of the case.
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.
1.18 BENCH CONFERENCES AND RECESSES
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.
1.19 OUTLINE OF TRIAL
Trials proceed in the following way: 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 defendant may
cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may
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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