Van et al v. Wal-Mart Stores, inc. et al

Filing 574

AMENDED PRELIMINARY JURY INSTRUCTIONS Signed by Judge Paul S. Grewal on January 5, 2015 (psglc2, COURT STAFF) (Filed on 1/5/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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NATHALIE THUY VAN,

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Plaintiff,
v.

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WAL-MART STORES, INC.,

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Defendant.

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Case No. 5:08-cv-05296-PSG
AMENDED PRELIMINARY JURY
INSTRUCTIONS

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Case No. 5:08-cv-05296-PSG
AMENDED PRELIMINARY JURY INSTRUCTIONS

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United States District Court
For the Northern District of California

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1. DUTY OF JURY
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.

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2. BACKGROUND
This is a tort case alleging various intentional and negligence claims as well as claims of
discrimination under 42 U.S.C. § 1981 and California’s Unruh Act (Cal. Civ. Code § 51).
Plaintiff Nathalie Thuy Van was allegedly detained at a Wal-Mart store in Milpitas when she was
paged to the asset protection office after Wal-Mart accused her twelve-year-old son of taking WalMart’s merchandise without paying for it, and detained him. Van alleges that her son did not take
Wal-Mart merchandise, but instead, she and her son were targeted based on racial discrimination
and she was discriminated against because of her race, that she was falsely threatened with criminal
prosecution, and that she was not allowed to leave the detention room without signing a document
banning her from all Wal-Mart property.
Wal-Mart denies these allegations. Wal-Mart contends that while Van was in the asset protection
office, she never asked to leave, nor did anyone touch, harm or threaten to arrest her. Wal-Mart
maintains that its actions were justifiedbecause Van’s son may have been stealing store
merchandise.

United States District Court
For the Northern District of California

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3. 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.

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United States District Court
For the Northern District of California

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Case No. 5:08-cv-05296-PSG
AMENDED PRELIMINARY JURY INSTRUCTIONS

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United States District Court
For the Northern District of California

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4. 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 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.

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5. 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.
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.

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United States District Court
For the Northern District of California

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6. RULING ON OBJECTIONS
What 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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United States District Court
For the Northern District of California

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7. CREDIBILITY OF WITNESSES

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United States District Court
For the Northern District of California

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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) the opportunity and ability of the witness to see or hear or know the things testified to;
(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.

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Case No. 5:08-cv-05296-PSG
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United States District Court
For the Northern District of California

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8. 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.

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9. 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.

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United States District Court
For the Northern District of California

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10. 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 jury room. 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.

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United States District Court
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United States District Court
For the Northern District of California

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11. QUESTIONS TO WITNESSES BY JURORS
You will be allowed to propose written questions to witnesses after the lawyers have completed
their questioning of each witness. You may propose questions in order to clarify the testimony, but
you are not to express any opinion about the testimony or argue with a witness. If you propose any
questions, remember that your role is that of a neutral fact finder, not an advocate.
Before I excuse each witness, I will offer you the opportunity to write out a question on a form
provided by the court. Do not sign the question. I will review the question with 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 wording submitted
by the juror. This might happen either due to the rules of evidence or other legal reasons, or
because the question is expected to be answered later in the case. If I do not ask a proposed
question, or if I rephrase it, do not speculate as to the reasons. Do not give undue weight to
questions you or other jurors propose. You should evaluate the answers to those questions in the
same manner you evaluate all of the other evidence.
By giving you the opportunity to propose questions, I am not requesting or suggesting that you do
so. It will often be the case that a lawyer has not asked a question because it is legally
objectionable or because a later witness may be addressing that subject.

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12. 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.

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United States District Court
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