Washington v. Sandoval et al
Filing
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DRAFT PRELIMINARY JURY INSTRUCTIONS. Signed by Judge Lucy H. Koh on July 17, 2013. (lhklc1, COURT STAFF) (Filed on 7/17/2013)
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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JESSE WASHINGTON,
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No. 12-CV-0250 LHK
Plaintiff,
v.
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D. SANDOVAL,
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Defendant.
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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IT IS SO ORDERED.
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Dated: July 17, 2013
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DRAFT PRELIMINARY JURY INSTRUCTIONS
Case No. 10-CV-250-LHK
___________________________________
LUCY H. KOH
United States District Judge
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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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Source: Ninth Circuit Model Jury Instruction 1.1A.
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DRAFT PRELIMINARY JURY INSTRUCTIONS
Case No. 10-CV-250-LHK
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CLAIMS AND DEFENSES
To help you follow the evidence, I will give you a brief summary of the positions of the
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parties:
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The Plaintiff, Jesse Washington, an inmate in the California Department of Corrections
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and Rehabilitation system, claims that, while he was housed at Salinas Valley State Prison, he
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made numerous requests directed toward the Defendant, David Sandoval, for various
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accommodations of Mr. Washintgon’s living condition. Mr. Washington claims that Mr.
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Sandoval retaliated against him for making these requests and thereby violated Mr.
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Washington’s First Amendment right to free speech.
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Mr. Washington has the burden of proving these claims by a preponderance of the
evidence.
Mr. Sandoval denies Mr. Washington’s claims and asserts that his actions were at all
times appropriate under the Constitution.
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Source: Ninth Circuit Model Jury Instruction 1.2; Rhodes v. Robinson, 408 F.3d 559,
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567-68 (9th Cir. 2004); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); McCoy v. Evans,
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2011 U.S. Dist. LEXIS 98769 at *38-39 (N.D. Cal. 2011)
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DRAFT PRELIMINARY JURY INSTRUCTIONS
Case No. 10-CV-250-LHK
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BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE
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When a party has the burden of proof on any claim by a preponderance of the evidence, it
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means you must be persuaded by the evidence that the claim is more probably true than not true.
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You should base your decision on all of the evidence, regardless of which party presented
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it.
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Source: Ninth Circuit Model Jury Instruction 1.3
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DRAFT PRELIMINARY JURY INSTRUCTIONS
Case No. 10-CV-250-LHK
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WHAT IS EVIDENCE
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The evidence you are to consider in deciding what the facts are consists of:
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1. the sworn testimony of any witness;
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2. the exhibits which are received into evidence; and
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3. any facts to which the lawyers have agreed.
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Source: Ninth Circuit Model Jury Instruction 1.6
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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WHAT IS NOT EVIDENCE
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In reaching your verdict, you may consider only the testimony and exhibits received into
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evidence. Certain things are not evidence, and you may not consider them in deciding what the
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facts are. I will list them for you:
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(1) Arguments and statements by lawyers are not evidence. The lawyers are not
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witnesses. What they have said in their opening statements, will say in their
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closing arguments, and at other times is intended to help you interpret the
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evidence, but it is not evidence. If the facts as you remember them differ from the
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way the lawyers have stated them, your memory of them controls.
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(2) Questions and objections by lawyers are not evidence. Attorneys have a duty
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to their clients to object when they believe a question is improper under the rules
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of evidence. You should not be influenced by the objection or by the court’s
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ruling on it.
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(3) Testimony that has been excluded or stricken, or that you have been instructed
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to disregard, is not evidence and must not be considered. In addition sometimes
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testimony and exhibits are received only for a limited purpose; when I give a
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limiting instruction, you must follow it.
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(4) Anything you may have seen or heard when the court was not in session is not
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evidence. You are to decide the case solely on the evidence received at the trial.
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Source: Ninth Circuit Model Jury Instruction 1.7
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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EVIDENCE FOR LIMITED PURPOSE
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Some evidence may be admitted for a limited purpose only.
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When I instruct you that an item of evidence has been admitted for a limited purpose, you
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must consider it only for that limited purpose and for no other.
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Source: Ninth Circuit Model Jury Instruction 1.8
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such
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as testimony by a witness about what that witness personally saw or heard or did. Circumstantial
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evidence is proof of one or more facts from which you could find another fact. By way of
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example, if you wake up in the morning and see that the sidewalk is wet, you may find from that
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fact that it rained during the night. However, other evidence, such as a turned on garden hose,
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may provide a different explanation for the presence of water on the sidewalk. Therefore, before
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you decide that a fact has been proved by circumstantial evidence, you must consider all the
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evidence in the light of reason, experience, and common sense. You should consider both kinds
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of evidence. The law makes no distinction between the weight to be given to either direct or
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circumstantial evidence. It is for you to decide how much weight to give to any evidence.
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Source: Ninth Circuit Model Jury Instruction 1.9 & (comment)
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DRAFT PRELIMINARY JURY INSTRUCTIONS
Case No. 10-CV-250-LHK
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RULING ON OBJECTIONS
There are rules of evidence that control what can be received into evidence. When a
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lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks
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that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the
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objection, the question may be answered or the exhibit received. If I sustain the objection, the
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question cannot be answered, and the exhibit cannot be received. Whenever I sustain an
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objection to a question, you must ignore the question and must not guess what the answer might
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have been.
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Sometimes I may order that evidence be stricken from the record and that you disregard
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or ignore the evidence. That means that when you are deciding the case, you must not consider
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the evidence that I told you to disregard.
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Source: Ninth Circuit Model Jury Instruction 1.10
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and
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which testimony not to believe. You may believe everything a witness says, or part of it, or none
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of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it.
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In considering the testimony of any witness, you may take into account:
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(1) the opportunity and ability of the witness to see or hear or know the things testified to;
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(2) the witness’s memory;
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(3) the witness’s manner while testifying;
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(4) the witness’s interest in the outcome of the case and any bias or prejudice;
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(5) whether other evidence contradicted the witness’s testimony;
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(6) the reasonableness of the witness’s testimony in light of all the evidence; and
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(7) any other factors that bear on believability.
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The weight of the evidence as to a fact does not necessarily depend on the number of
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witnesses who testify about it.
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Source: Ninth Circuit Model Jury Instruction 1.11
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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CONDUCT OF THE JURY
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I will now say a few words about your conduct as jurors.
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First, keep an open mind throughout the trial, and do not decide what the verdict should
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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
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case and on my instructions as to the law that applies, you must not be exposed to any other
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information about the case or to the issues it involves during the course of your jury duty. Thus,
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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, 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.
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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
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evidence that each party has had an opportunity to address. A juror who violates these
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restrictions jeopardizes the fairness of these proceedings. If any juror is exposed to any outside
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information, please notify the court immediately.
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Source: Ninth Circuit Model Jury Instruction 1.12
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DRAFT PRELIMINARY JURY INSTRUCTIONS
Case No. 10-CV-250-LHK
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NO TRANSCRIPT AVAILABLE TO JURY
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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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Source: Ninth Circuit Model Jury Instruction 1.13
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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TAKING NOTES
If you wish, you may take notes to help you remember the evidence. If you do take notes,
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please keep them to yourself until you and your fellow jurors go to the jury room to decide the
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case. Do not let note-taking distract you. When you leave, your notes should be left in the jury
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room. No one will read your notes. They will be destroyed at the conclusion of the case.
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Whether or not you take notes, you should rely on your own memory of the evidence.
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Notes are only to assist your memory. You should not be overly influenced by your notes or
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those of your fellow jurors.
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Source: Ninth Circuit Model Jury Instruction 1.14
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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BENCH CONFERENCES AND RECESSES
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From time to time during the trial, it may become necessary for me to talk with the
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attorneys out of the hearing of the jury, either by having a conference at the bench when the jury
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is present in the courtroom, or by calling a recess. Please understand that while you are waiting,
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we are working. The purpose of these conferences is not to keep relevant information from you,
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but to decide how certain evidence is to be treated under the rules of evidence and to avoid
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confusion and error.
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Of course, we will do what we can to keep the number and length of these conferences to
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a minimum. I may not always grant an attorney’s request for a conference. Do not consider my
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granting or denying a request for a conference as any indication of my opinion of the case or of
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what your verdict should be.
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Source: Ninth Circuit Model Jury Instruction 1.18
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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OUTLINE OF TRIAL
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Trials proceed in the following way: First, each side may make an opening statement. An
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opening statement is not evidence. It is simply an outline to help you understand what that party
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expects the evidence will show. A party is not required to make an opening statement.
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Mr. Washington will then present evidence, and counsel for Mr. Sandoval may cross-
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examine. Then Mr. Sandoval may present evidence, and counsel for Mr. Washington may cross-
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examine.
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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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Source: Ninth Circuit Model Jury Instruction 1.19
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DEPOSITION IN LIEU OF LIVE TESTIMONY
A deposition is the sworn testimony of a witness taken before trial. The witness is placed
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under oath to tell the truth and lawyers for each party may ask questions. The questions and
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answers are recorded.
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You should consider deposition testimony, presented to you in court in lieu of live
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testimony, insofar as possible, in the same way as if the witness had been present to testify. Do
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not place any significance on the behavior or tone of voice of any person reading the questions or
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answers.
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Source: Ninth Circuit Model Jury Instruction 2.4.
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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IMPEACHMENT EVIDENCE—WITNESS
The evidence that a witness has been convicted of a crime or has lied under oath on a
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prior occasion may be considered, along with all other evidence, in deciding whether or not to
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believe the witness and how much weight to give to the testimony of the witness and for no other
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purpose.
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Source: Ninth Circuit Model Jury Instruction 2.8.
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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USE OF INTERROGATORIES OF A PARTY
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Evidence will now be presented to you in the form of answers of one of the parties to
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written interrogatories submitted by the other side. These answers were given in writing and
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under oath, before the actual trial, in response to questions that were submitted in writing under
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established court procedures. You should consider the answers, insofar as possible, in the same
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way as if they were made from the witness stand.
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Source: Ninth Circuit Model Jury Instruction 2.10
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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EXPERT OPINION
Some witnesses, because of education or experience, are permitted to state opinions and
the reasons for those opinions.
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Opinion testimony should be judged just like any other testimony. You may accept it or
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reject it, and give it as much weight as you think it deserves, considering the witness’s education
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and experience, the reasons given for the opinion, and all the other evidence in the case.
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Source: Ninth Circuit Model Jury Instruction 2.11.
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DRAFT PRELIMINARY JURY INSTRUCTIONS
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