Santiago v. Cuomo et al

Filing 205

Final Jury Charge and Verdict Sheet. The attached Jury Charge is marked as Court Exhibit 2 and the attached Verdict Form is marked as Court Exhibit 2A. Both court exhibits reflect changes from the 11/29/22 charging conference. (Attachments: # 1 Verdict Form Court Exhibit 2A) (LW)

Case 1:12-cv-02137-KAM-ST Document 205 Filed 11/29/22 Page 1 of 31 PageID #: 2708
Court Ex. 2
Jury Charge
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JESUS SANTIAGO
Plaintiff,
-against-

12-CV-2137(KAM)(SLT)

BRIAN FISCHER, INDIVIDUALLY AND
AS COMMISSIONER OF THE NEW YORK
STATE DEPARTMENT OF CORRECTIONS
AND COMMUNITY SUPERVISION, et al.,
Defendants.
-----------------------------------X

JURY CHARGE

1

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Jury Charge
TABLE OF CONTENTS
PART I: GENERAL RULES .....................................................................................................................4
1.

Juror Attentiveness............................................................................................ 4

3.

Role of the Jury ................................................................................................... 5

2.

4.

5.
6.

7.
8.

9.

10.

11.
12.
13.

Role of the Court ................................................................................................ 4
Conduct of Counsel .............................................................................................. 7
Jury to Disregard Court’s View ................................................................. 8

Matters the Jury May Not Consider .......................................................... 9
Burden of Proof ................................................................................................... 11

Definition of Evidence .................................................................................. 12
Direct and Circumstantial Evidence...................................................... 14

Witness Credibility.......................................................................................... 15
Biased Witnesses ................................................................................................. 17
Interested Witnesses ....................................................................................... 17

No Duty to Call Witnesses or Produce Evidence ........................... 18

PART II: DAMAGES...............................................................................................................................19
A.

The Statute: 42 U.S.C. § 1983.................................................................. 19

a.

Compensatory Damages ....................................................................................... 22

1.

b.
c.
d.

Damages Generally .............................................................................................. 21
Punitive Damages ................................................................................................. 24
Nominal Damages ................................................................................................... 25
Mitigation of Damages ..................................................................................... 26

PART III: DELIBERATIONS ON DAMAGES....................................................................................27
1.

Selection of a Foreperson ........................................................................... 27

3.

Right to See Evidence ..................................................................................... 28

2.

4.

5.
6.

7.

8.

Duty to Deliberate ............................................................................................ 27
Communications with the Court.................................................................. 29
Communications with Others ......................................................................... 29

Return of Verdict .............................................................................................. 30
Verdict Form .......................................................................................................... 30

Conclusion ............................................................................................................... 31

2

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Court Ex. 2
Jury Charge
KIYO A. MATSUMOTO, United States District Judge:
To the Members of the Jury:
Now that the evidence on the plaintiff’s claim for
damages

has

been

presented

and

the

attorneys

for

the

plaintiff and the defendants have concluded their closing
arguments, it is my responsibility to instruct you on the
law that governs this case.

My instructions will be in

three parts:
First:

I

will

instruct

you

regarding

the

general

rules that define and govern the duties of a jury in a
civil case and the way in which you are to review the
evidence;
Second:
plaintiff’s

I

will

damages

instruct

claims

in

you
this

on

determining
case,

which

the
the

plaintiff must prove by a preponderance of the evidence;
and
Third:

I will give you some general rules regarding

your deliberations.

3

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PART I: GENERAL RULES
1. Juror Attentiveness
Please
instructions.

pay

close

attention

during

these

I will go as slowly as I can and be as clear

as possible.
I told you at the very start of the trial that
your

principal

function

during

the

taking

of

testimony

would be to listen carefully and observe each witness who
testified.

It has been obvious to me and to counsel that

you have faithfully discharged this duty.
never

lagged,

and

it

is

evident

testimony with close attention.

that

Your interest

you

followed

the

I ask that you please now

give me that same careful attention that you gave at trial
as I instruct you.
2. Role of the Court
My duty at this point is to instruct you as to
the law.

It is your duty to accept these instructions of

law and apply them to the facts as you determine them, just
as it has been my duty to preside over the trial and decide
what testimony and evidence is relevant under the law for
your consideration.
On these legal matters, you must take the law as
I

give

it

to

you.

If

any

attorney

4

has

stated

a

legal

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principle different from any that I state to you in my
instructions, it is my instructions that you must follow.
Please do not single out any instruction as alone
stating the law, but you should consider my instructions as
a whole when you retire to deliberate in the jury room.
You should not, any of you, be concerned about
the wisdom of any rule that I state.

Regardless of any

opinion that you may have as to what the law may be — or
ought to be — it would violate your sworn duty to base a
verdict upon any other view of the law than that which I
give you.
3. Role of the Jury
As

members

of

the

jury,

exclusive judges of the facts.
You

determine

the

credibility

you

are

the

sole

and

You pass upon the evidence.
of

the

witnesses.

You

resolve such conflicts as there may be in the testimony.
You draw whatever reasonable inferences you decide to draw
from

the

facts

as

you

have

determined

them,

and

you

determine the weight of the evidence.
In determining these issues, you must rely upon
your own recollection of the evidence.

What the lawyers

have said in their opening statements, in their closing
arguments, in their objections, or in their questions is

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not evidence.

What I may have said — or what I may say in

these instructions — about a fact issue is not evidence.
The

evidence

before

you

consists

of:

1)

the

answers given by witnesses — the testimony they gave, 2)
the exhibits that were received in evidence, and 3) any
agreements as known as stipulations, of the parties that
were received into evidence.
Please

bear

in

mind

witness is never evidence.

that

a

question

put

to

a

Only the answers are evidence.

However, you may not consider any answer that I directed
you to disregard or that I directed struck from the record.
Do not consider such answers.
Because you are the sole and exclusive judges of
the facts, I do not mean to indicate any opinion as to the
facts or what your verdict should be.

The rulings I have

made during the trial are not any indication of my views of
what

your

decision

should

be

as

to

whether

or

not

the

plaintiff has proven his case.
I also ask you to draw no inference from the fact
that, upon occasion, I asked questions of certain witnesses.
These questions were only intended for clarification or to
expedite matters and certainly were not intended to suggest
any opinions on my part as to the verdict you should render,
or whether any of the witnesses may have been more credible
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than any other witnesses.

The court has no opinion as to

the verdict you should render in this case.
As to the facts, members of the jury, you are the
exclusive judges.

You are to perform the duty of finding

the facts without bias or prejudice to any party.
4. Conduct of Counsel
It is the duty of the attorney on each side of a
case

to

object

when

the

other

side

offers

testimony

or

other evidence which the attorney believes is not properly
admissible.

Counsel also have the right and duty to ask

the court to make rulings of law and to request conferences
at the side bar out of the hearing of the jury.

All those

questions of law must be decided by me, the court.

You

should not show any prejudice against an attorney or his
client because the attorney objected to the admissibility
of evidence, asked for a conference out of the hearing of
the jury, or asked the court for a ruling on the law.
As

I

already

indicated,

my

rulings

on

the

admissibility of evidence do not, unless expressly stated
by me, indicate any opinion as to the weight or effect of
such evidence.

You are the sole judges of the credibility

of all witnesses and the weight and effect of all evidence.

7

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Your verdict should be based on the facts that
you find from the evidence admitted at trial, and the law
as instructed by the court.
During the course of the trial, I may have had to
admonish or direct an attorney at times.

You should draw

no inference against the attorney or the client.
duty

of

the

attorneys

to

offer

evidence

objections on behalf of their side.
cut

off

counsel

from

an

improper

It is the
and

press

It is my function to
line

of

argument

or

questioning, to strike offending remarks, and to admonish
counsel when I think it is necessary.
no inference from that.

But you should draw

It is irrelevant whether you like

a lawyer or whether you believe I like a lawyer.
In fact, in this case, I would like to express my
gratitude to each of the attorneys for their conscientious
efforts on behalf of their clients and for work well done.
5. Jury to Disregard Court’s View
I

have

not

expressed

nor

have

I

intended

to

intimate any opinion as to which witnesses are or are not
worthy of belief, what facts are or are not established, or
what

inference

evidence.

or

inferences

should

be

drawn

from

the

If any expression of mine has seemed to indicate

an opinion relating to any of these matters, I instruct you
to disregard it.
8

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You are, I repeat, the exclusive, sole judges of
all of the questions of fact submitted to you and of the
credibility of the witnesses.

Your authority, however, is

not to be exercised arbitrarily; it must be exercised with
sincere judgment, sound discretion, based on the evidence,
and in accordance with the rules of law which I give you.
In making your determination of the facts in this
case, your judgment must be applied only to that which is
properly
evidence,

in

evidence.

although

you

Arguments

of

may

consideration

give

counsel

are

not

to

in

those

arguments in making up your mind on what inferences to draw
from the facts which are in evidence.
From time to time the court has asked a question
or has been called upon to pass upon the admissibility of
certain evidence, although I have tried to do so, in so far
as it was practicable, out of your hearing.

Do not be

concerned with the reasons for any such rulings and do not
draw

any

inferences

from

them.

Whether

evidence

is

admissible is purely a question of law in the province of
the court and outside the province of the jury.
6. Matters the Jury May Not Consider
Your

verdict

must

be

based

solely

upon

evidence presented at this trial or the lack of evidence.

9

the

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It

would

be

improper

for

you

to

consider

any

personal feelings you may have about one of the parties’
race, religion, national origin, gender, or age.

It would

be equally improper for you to allow any feelings you might
have

about

the

nature

of

the

damages

defendant to influence you in any way.

claim

against

the

The parties in this

case are entitled to a trial free from prejudice.

Our

judicial system cannot work unless you reach your verdict
through a fair and impartial consideration of the evidence.
In this case, the defendants are state government
officials who are involved with the criminal justice system
and law enforcement.

The mere fact that the defendants are

government officials or involved with law enforcement and
criminal justice does not mean they are entitled to any
greater or lesser consideration by you.

All litigants are

equal before the law and are entitled to the same fair
consideration as you would give any other party.
Similarly, under your oath as jurors, you are not
to be swayed by fear or sympathy, or prejudice against a
party.

You

presented

should
during

be
the

guided

solely

trial,

without

by

the

regard

evidence
to

the

consequences of your decision.
You have been chosen to try the issues of fact
and reach a verdict on the basis of the evidence or lack of
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evidence.

Do

not

let

fear,

sympathy,

or

prejudice

interfere with your clear thinking, because there is a risk
that you will not arrive at a just verdict.

All parties to

a civil lawsuit are entitled to a fair trial.

You must

make a fair and impartial decision so that you will arrive
at the just verdict.
7. Burden of Proof
This is a civil case and, as such, the plaintiff
has

the

damages

burden
claims

of
by

proving
a

the

material

preponderance

of

aspects

the

of

evidence.

his
To

establish a fact by a preponderance of the evidence means
to prove that the fact is more likely true than not true. A
preponderance of the evidence means the greater weight of
the evidence.
of

the

It refers to the quality and persuasiveness

evidence,

not

to

the

number

of

witnesses

or

documents. In determining whether a claim has been proved
by a preponderance of the evidence, you may consider the
relevant testimony of all witnesses, regardless of who may
have called them, and all the exhibits received in evidence,
regardless of who may have offered them in evidence.
If you find that the credible evidence on a given
issue

is

evenly

divided

between

the

plaintiff

and

the

defendants — that it is equally probable that one side is
right as it is that the other side is right — then you must
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decide that issue against the plaintiff. That is because
the plaintiff bears the burden of proof and must prove more
than simple equality of evidence — the plaintiff must prove
his claims for damages by a preponderance of the evidence.
On the other hand, the plaintiff need prove no more than a
preponderance.

So long as you find that the scales tip,

however

slightly,

element

will

have

in

favor

been

of

proved

the

plaintiff,

by

a

then

that

preponderance

of

evidence.
A preponderance of the evidence means the greater
weight of the evidence.

That does not mean the greater

number of witnesses or the greater length of the time taken
by either side.

This determination is based on the quality

and persuasiveness of the evidence—the weight and effect it
has on your minds.
Some

of

you

may

have

heard

of

proof

beyond

a

reasonable doubt, which is the proper standard of proof in
a criminal

trial.

That

requirement

does

not

apply

to

a

civil case such as this and you should put it out of your
mind.
8. Definition of Evidence
You must determine the facts in this case based
solely

on

the

evidence

or

those

12

inferences

which

can

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reasonably be drawn from the evidence.

I will now instruct

you on what evidence is and how you should consider it.
As

I

previously

indicated,

evidence

has

been

presented to you in the following forms:
a) Sworn

testimony

from

witnesses

on

examination and cross examination.

direct

Again, I

emphasize that it is the witness' answers that
are evidence, not the questions asked by the
lawyers or the court.
b) Exhibits that have been received in evidence
by the court. If exhibits have been marked for
identification, but have not been received in
evidence, you may not consider the exhibit as
evidence.
c) Stipulations of fact – an agreement among the
parties that a certain fact is true.

You must

regard such facts as true.
The

following

are

not

evidence

and

are

to

be

disregarded by you in deciding what the facts are.
a) Arguments,

statements,

or

questions

by

the

lawyers or myself.
b) Objections
exhibits.

to

the

However,

13

questions
if

an

or

the

offered

objection

was

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overruled, treat the answer to that question
or that testimony like any other answer.
c) Testimony that has been excluded, stricken, or
that you have been instructed to disregard.
d) Anything

I

may

have

said

or

done

is

not

evidence.
e) Anything you may have seen or heard outside
the courtroom is not evidence.
It is for you alone to decide the weight, if any,
to

be

given

to

the

testimony

you

have

heard

and

the

exhibits you have seen.
9. Direct and Circumstantial Evidence
I have told you that evidence comes in various
forms such as the sworn testimony of witnesses, exhibits,
and stipulations.

These forms of evidence fall into two

categories - direct and circumstantial.

You may use both

types of evidence in reaching your verdict in this case.
The law does not distinguish between the weight, that is,
the value, of direct evidence as opposed to circumstantial
evidence.

Nor is a greater degree of certainty required

where something is to be proved by circumstantial evidence
as opposed to direct evidence.

You are to weigh all the

evidence in the case, both direct and circumstantial.

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Direct
evidence

or

evidence:

testimony

Direct

about

a

evidence

fact

by

an

is

physical

eyewitness

or

participant who testifies to knowing that fact through one
of the five senses.
Circumstantial

evidence:

Circumstantial

evidence

is the proof of a chain of circumstances pointing to the
existence or nonexistence of certain facts.
that

you

find

have

been

proven,

you

Based on facts
may

draw

such

reasonable inferences or conclusions as seem justified in
light of your experience and common sense.

Whether a given

inference should be drawn is entirely a matter for you, the
jury, to decide.

Please bear in mind, however, that an

inference is not to be drawn by guesswork or speculation.
In drawing inferences, you should exercise your
common sense.

There are times when different inferences

may be drawn from different facts, whether they are proved
by direct or circumstantial evidence.

The plaintiff may

ask you to draw one set of inferences, while the defendants
may ask you to draw another.
to

decide

what

inferences

It is only for you, the jury,
you

will

draw

from

the

facts

which you decide have been proven.
10.

Witness Credibility
You have had the opportunity to observe all the

witnesses.

It is now your job to decide how believable
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each witness was in his or her testimony.
judges

of

the

credibility

of

each

You are the sole

witness

and

of

the

importance of his or her testimony.
It must be clear to you by now that you are being
called upon to resolve various factual issues raised by the
parties in the face of very different pictures painted by
both

sides.

In

making

these

judgments,

you

should

carefully scrutinize all of the testimony of each witness,
the circumstances under which each witness testified, and
any other matter in evidence which may help you decide the
truth and the importance of each witness’s testimony.
You

should

use

all

the

tests

for

truthfulness

that you would use in determining matters of importance to
you in your everyday life.

You should consider any bias or

hostility the witness may have shown for or against any
party

as

well

as

any

outcome of the case.

interest

the

witness

has

in

the

You should consider the opportunity

the witness had to see, hear, and know the things about
which

she

or

he

testified;

the

accuracy

of

his

or

her

memory; his or her candor or lack of candor; his or her
intelligence; the reasonableness and probability of his or
her testimony and its consistency or lack of consistency;
and the testimony’s corroboration or lack of corroboration
with other credible testimony.
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11.

Biased Witnesses
In

deciding

whether

to

believe

a

witness,

you

should specifically note any evidence of hostility toward,
or alliances which the witness may have with, one of the
parties.
other

Likewise, you should consider evidence of any

interest

or

motive

that

the

witness

may

have

in

cooperating with one of the parties.
It is your duty to consider whether the witness
has permitted any such bias or interest to color his or her
testimony.

In short, if you find that a witness is biased,

you should view his or her testimony with caution, weigh it
with care, and subject it to close and searching scrutiny.
12.

Interested Witnesses
In evaluating the credibility of the witnesses,

you should take into account any evidence that a witness
may benefit in some way from the outcome of the case.

For

example, both plaintiff and defendants have an interest in
prevailing at trial.

An interest in the outcome may create

a

falsely

motive

to

testify

and

may

sway

a

witness

to

testify in a way that advances his or her own interests.
Therefore, if you find that any witness whose testimony you
are considering may have an interest in the outcome of this
trial,

then

evaluating

you

the

should

bear

credibility

of
17

that
his

factor
or

her

in

mind

testimony

when
and

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decide

with

great

care

whether

and

how

much

of

the

testimony to accept.
Keep

in

mind,

though,

that

it

does

not

automatically follow that testimony given by an interested
witness is to be disbelieved.

There are many people who,

no matter what their interest in the outcome of the case
may be, would testify truthfully.

It is for you to decide,

based on your own perceptions and common sense, to what
extent, if at all, the witness’s interest has affected his
or her testimony.
13.

No Duty to Call Witnesses or Produce Evidence
The law does not require any party to call as

witnesses all persons who may have been present at any time
or place involved in the case, or who may appear to have
some knowledge of the matters in issue at this trial.

Nor

does the law require any party to produce as exhibits all
papers and things mentioned in the evidence in this case.
You should not speculate about evidence that witnesses have
mentioned but which has not been introduced in this case.
You must disregard such references and decide the facts of
this

case

based

only

on

the

submitted.

18

evidence

that

has

been

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I will now turn to the second part of this charge
and instruct you as to the types of damages you may award,
if any, for the plaintiff’s damages claims.
PART II: DAMAGES
A. The Statute: 42 U.S.C. § 1983
In this case, plaintiffs' claims against the
defendants are brought under a federal statute, 42 U.S.C. §
1983, called "Section 1983."

Section 1983 is a federal

civil rights law that creates a federal remedy for persons
who have been deprived by state officials of rights,
privileges and immunities secured by the United States
Constitution or laws of the United States.

Section 1983

states in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom or usage of any State or
Territory or the District of Columbia, subjects or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
In this case, the plaintiff has already
established, by a preponderance of the evidence, each of
the following three elements of his Section 1983 claim:
First, that the act or acts complained of were
committed by the defendant acting under color of state law;

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Second, that the defendants’ conduct deprived the
plaintiff of rights, privileges or immunities secured by
the Constitution or laws of the United States; and
Third, that the defendants’ acts were the
proximate cause of injuries sustained by the plaintiff.
I stress again that each of the elements above
have already been established against each of the
defendants, and the defendants have been found to have
violated the plaintiff’s constitutional rights under
Section 1983, by refusing to vacate the illegal postrelease supervision, by refusing to ask a judge to
resentence the plaintiff, and/or by enforcing the illegal
post-release supervision against plaintiff which led to his
re-incarceration, between June 12, 2007 to February 1, 2008,
for violating PRS.

As a result, the plaintiff seeks

damages because he was incarcerated for violating an
illegal term of post-release supervision between June 12,
2007 to February 1, 2008.

You are to decide whether the

plaintiff has proven that he suffered damages, whether he
is entitled to damages, and the amount of damages, if any,
for the plaintiff’s alleged injuries that resulted from the
defendants’ violations of the plaintiff’s constitutional
rights.

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1. Damages Generally
The fact that I am instructing you on how to
award damages does not mean that I have any opinion on
whether any of the defendants should pay damages in this
case.

I am instructing you about damages only so that you

will have guidance if you decide that plaintiff is entitled
to recover damages.
If you find that the plaintiff has proven that
all of the defendants are responsible for his injuries, you
may simply determine the overall total amount of damages
for which the defendants are liable.
There are three defendants in this case and it
does not follow that if you award damages against one
defendant, the other defendants must also to pay damages.
Each defendant is entitled to fair, separate, and
individual consideration of the plaintiff’s damages claim,
without regard to your decision as to the other defendant.
If you find, for example, that only one or two defendants
are responsible for a particular injury, then you may
impose damages for that injury only upon those defendants
and determine the amount to be paid by each defendant.
Finally, one last reminder about the defendants.
You must remember that the defendants in this case are
individuals: The State of New York and its agencies are not
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on trial.

There is no claim here against New York State,

the New York State Department of Correctional Services
(“DOCS”), or the New York State Division of Parole
(“Parole”).

The defendants are being sued by plaintiff in

their individual capacities.

In order to consider the

plaintiff’s damages with respect to a defendant, you must
find, by a preponderance of the evidence, that the
defendant that you are deliberating about was responsible
for the plaintiff’s damages.
I will now define the types of damages you may
award.
a. Compensatory Damages
The purpose of the law of damages is to award, as
far as possible, just and fair compensation for the loss,
if any, which results from a defendant's violation of a
plaintiff's rights.

If you find that the defendant you are

considering is liable for damages, as I have explained it,
then you must award the plaintiff sufficient damages to
compensate him for any injury proximately resulting from
that defendant's conduct.
Compensatory damages seek to compensate the
plaintiff for the damage he has suffered.

This might

include damages resulting from a plaintiff's physical
injury, pain and suffering, mental anguish, shock, and
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discomfort he has suffered as a result of a defendants’
conduct.
You shall award compensatory damages only for
those injuries which you find that plaintiff has proven by
a preponderance of the evidence as to the specific
defendant you are considering.

Moreover, you may award

compensatory damages only for those injuries which you find
plaintiff has proven to have been the proximate result of
conduct by the defendant in violation of Section 1983.
That is, you may not simply award compensatory damages for
any injury suffered by plaintiff--you may award
compensatory damages only for those injuries that resulted
from the conduct by the defendant that violated plaintiff's
federal rights under color of law.
Compensatory damages must not be based on
speculation or sympathy. They must be based on the evidence
presented at trial.
Should you decide to award damages, computing
damages may be difficult, but you must not let that
difficulty lead you to engage in arbitrary guesswork. On
the other hand, the law does not require that a plaintiff
prove the exact amount of his losses with mathematical
precision, but only with as much definitiveness and
accuracy as the circumstances permit.
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b. Punitive Damages
Whether or not you award the plaintiff’s
compensatory damages, you may also, in your discretion,
make an award of punitive damages.
You may, but are not required to, award punitive
damages only if you find that a particular defendant’s
conduct (1) was motivated by evil motive or intent, or (2)
the defendant’s conduct involved reckless or callous
indifference to the plaintiff's federal constitutional
rights.

An award of punitive damages, however, is

discretionary; that is, if you find that the legal
requirements for punitive damages are satisfied, then you
may decide to award punitive damages, or you may decide not
to award them.
The purposes of punitive damages are not to
compensate plaintiffs but rather to punish defendants and
to deter defendants and others from committing similar acts
in the future.

You should also consider whether

compensatory damages standing alone are likely to deter or
prevent a defendant from again performing any wrongful acts
he may have performed, or whether punitive damages are
necessary to provide deterrence.

Finally, you should

consider whether punitive damages are likely to deter or

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prevent other persons from performing wrongful acts similar
to those a defendant may have committed.
If you decide to award punitive damages, these
same purposes should be considered by you in determining
the appropriate sum of money to be awarded as punitive
damages.

That is, in fixing the sum to be awarded, you

should consider whether a particular defendant should pay
punitive damages at all, and if so, the degree to which
each particular defendant should be punished for his
wrongful conduct, and the degree to which an amount of
punitive damages will deter the defendant or others like
him from committing wrongful acts in the future.
c. Nominal Damages
If you conclude that the only injury that the
plaintiff suffered was the deprivation of his rights,
without any physical, emotional, or financial damage, you
must award nominal damages of one dollar.

In other words,

if you find that plaintiff has failed to prove by a
preponderance of the evidence that he suffered any
compensatory or punitive damages, then you must return an
award of damages in the sum of one dollar.
You must also award nominal damages if you find
that some injury resulted, but you are unable to compute
the monetary damages except by engaging in pure speculation
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or guessing.

You may not award both nominal damages and

compensatory damages.

If the plaintiff was measurably

injured, you must award compensatory damages.

Because the

Second Circuit Court of Appeals has already found that the
defendants’ actions violated plaintiff’s constitutional
rights, if you then find that the plaintiff was not injured
in any way by the defendants’ violations of his
constitutional rights, you must award nominal damages.
d. Mitigation of Damages
The plaintiff has a duty to use reasonable
efforts to mitigate damages.
reduce damages.

To mitigate means to avoid or

You must determine whether the plaintiff

could have done something, after the injurious conduct, to
lessen the harm that he suffered.

The burden is on the

defendant to prove mitigation, by a preponderance of
evidence, that the plaintiff could have lessened the harm
that was done to him, and that he failed to do so.

If the

defendant convinces you that the plaintiff could have
reduced the harm done to him but failed to do so, the
plaintiff is entitled only to damages sufficient to
compensate him for the injury that he would still have
suffered even if he had taken appropriate action to reduce
the harm done to him.

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PART III: DELIBERATIONS ON DAMAGES
Now that I have outlined for you the rules of law
applicable to damages in this case and the processes by
which you should weigh the evidence and determine the facts,
I will give you some guidance for use in your deliberations.
1. Selection of a Foreperson
When you retire, you should select one member of
the jury as your foreperson.

That person will preside over

the deliberations and speak for you here in open court, but
his or her vote is not entitled to any greater weight than
that of any other juror.
2. Duty to Deliberate
You

will

decide the case.

now

retire

to

Courtroom

6B

South

to

In order to prevail, the plaintiff must

sustain his burden of proof as I have explained to you with
respect to damages he may receive from each defendant, if
at

all,

rights.

for

defendants’

violation

of

his

constitutional

If you find that the plaintiff has succeeded in

proving damages, you should return a verdict in plaintiff’s
favor.

If you find that the plaintiff failed to sustain

the burden of proving damages, you should return a verdict
against the plaintiff and must award nominal damages for
the constitutional violation.

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It is your duty as jurors to consult with one
another

and

to

deliberate

unanimous verdict.
himself

or

with

a

view

to

reaching

a

Each of you must decide the case for

herself,

but

you

should

do

so

only

after

a

consideration of the case with your fellow jurors, and you
should not hesitate to change an opinion when convinced
that it is erroneous.
you

are

not

bound

Your verdict must be unanimous, but

to

surrender

your

honest

convictions

concerning the effect or weight of the evidence for the
mere purpose of returning a unanimous verdict or solely
because of the opinion of other jurors.

Discuss and weigh

your respective opinions dispassionately, without regard to
sympathy, without regard to prejudice or favor for either
party,

and

adopt

that

conclusion

which

in

your

good

conscience appears to be supported by the evidence and in
accordance with the truth and the law.
Again, each of you must make your own decision
about

the

proper

consideration

of

outcome
the

of

evidence

this
and

case
your

based

on

your

discussions

with

your fellow jurors.
3. Right to See Evidence
During your deliberations you will have all of
the exhibits in the jury room.

If you want any of the

testimony read back to you, may also request that.
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remember that it is not always easy to locate the testimony
you might want, so be as specific as you possibly can in
requesting exhibits or portions of a witness’s testimony.
4. Communications with the Court
Any communication with the court, including your
requests for exhibits or testimony, should be made to me in
writing, signed by your foreperson, and given to one of the
court security officers.
the

jury

verdict

stands

is

on

Do not tell me or anyone else how

any

reached.

issue

You

will

until

after

receive

a

a

unanimous

copy

of

these

instructions.
5. Communications with Others
During

your

deliberations,

you

must

not

communicate with or provide any information to anyone by
any means about this case, except among your fellow jurors
in the jury room.

You may not use any electronic device or

media to communicate to anyone any information about this
case or to conduct any research about this case until I
accept your

verdict.

phone,

computer

any

This
or

includes

tablet,

any

any

phone

text

or

or

smart

instant

messaging service, any internet website or service, and any
social media platform.
In other words, you cannot talk to anyone on the
phone,

correspond

with

anyone,
29

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communicate

with

anyone

about

this

case.

You

can

only

discuss the case in the jury room with all of your fellow
jurors during deliberations.
6. Return of Verdict
When you have reached a verdict, simply send me a
note

signed

verdict.

by

your

foreperson

that

you

have

reached

a

Do not indicate in the note what the verdict is.

Your foreperson will fill in a verdict sheet that has been
given to you, sign and date it, and advise the officer
outside

your

door

that

you

are

ready

to

return

to

the

courtroom.
I

will

stress

that

each

of

you

should

be

in

agreement with the verdict which is announced in court.
Once your verdict is announced by your foreperson in open
court

and

officially

recorded,

the

verdict

cannot

ordinarily be revoked.
7. Verdict Form
Damages in this case will be decided based on the
answers

that

you

submitted to you.

give

to

the

questions

calls

for

will

be

I have prepared a verdict form for you

to use in recording your decision.
asked

that

an

answer.

There

Each of the questions
are

also

spaces

to

indicate your verdict on each of the plaintiff’s damages

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claims against each defendant.

You must return a verdict

on each defendant.
Your

general

verdict

and

your

answers

to

the

special questions must be unanimous and must reflect the
conscientious judgment of each juror.
When

you

have

answered

all

require answers, report to the court.

the

questions

that

Do not assume from

the questions or from the wording of the questions or from
my instructions on them what the answers should be.
8. Conclusion
I know you will try the issues that have been
presented to you according to the oath which you have taken
as jurors, in which you promised that you would well and
truly try the issues in this case and render a true verdict.
If you follow that oath, and try the issues without fear,
prejudice, bias, or sympathy, you will arrive at a true and
just verdict.

31