Hamlin, Christopher v. Holmes et al

Filing 94

ORDER granting 78 Motion in Limine; deferring ruling on 87 Motion in Limine; granting 88 Motion in Limine. Signed by District Judge James D. Peterson on 3/10/15. (Attachments: # 1 Draft Voir Dire, # 2 Draft introductory instructions, # 3 Draft post-trial instructions, # 4 Draft verdict) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTOPHER HAMLIN,
DRAFT
INTRODUCTORY
INSTRUCTIONS

Plaintiff,
v.

13-cv-202-jdp

JASON WENZEL, MATTHEW BURNS,
SCOTT ROSS, ANTHONY LO BIANCO,
and DEREK SCHOUTEN,
Defendants.
Members of the jury, we are about to begin the trial of the case. Before it
begins, I will give you some instructions to help you understand how the trial will
proceed, how you should evaluate the evidence, and how you should conduct
yourselves during the trial.
The party who begins the lawsuit is called the plaintiff. In this case, the
plaintiff is Christopher Hamlin. The parties against whom the suit is brought are
called the defendants. In this case, the defendants are Jason Wenzel, Matthew Burns,
Scott Ross, Anthony Lo Bianco, and Derek Schouten.
The Eighth Amendment to the United States Constitution protects prisoners
from cruel and unusual punishment. Plaintiff Hamlin was an inmate at Waupun
Correctional Institution on January 1, 2013. He was strip searched on that date.
Plaintiff claims that defendant Wenzel did not give him an opportunity to
consent to a “visual” strip search, in which the prisoner takes off his own clothes and
manipulates his body. Plaintiff contends that Wenzel wrongly ordered a more
intrusive “staff-assisted” search, where prison staff takes off a prisoner’s clothes and
manipulates the prisoner’s body.
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Plaintiff also claims that in the course of the staff-assisted strip search,
defendant Lo Bianco touched him inappropriately.
Finally, plaintiff claims that defendants Burns, Ross, and Schouten failed to
intervene to stop defendant Wenzel’s authorization of a staff-assisted strip search,
and defendants Wenzel, Burns, Ross, and Schouten failed to intervene in defendant
Lo Bianco’s strip search of plaintiff.
Defendants deny that any of them violated plaintiff’s Eighth Amendment
rights, because plaintiff had been found with contraband and he had physically
resisted the officers. They also deny that any inappropriate touching occurred.

CONDUCT OF THE CASE
The case will proceed as follows:
First, plaintiff’s counsel will make an opening statement outlining plaintiff’s
case. Immediately after plaintiff’s statement, defendants’ counsel will also make an
opening statement outlining defendants’ case. What is said in opening statements is
not evidence; it is simply a guide to help you understand what each party expects the
evidence to show.
Second, after the opening statements, plaintiff will introduce evidence in
support of his claim. At the conclusion of plaintiff’s case, defendants may introduce
evidence. Plaintiff may choose to introduce rebuttal evidence.
Third, after the evidence is presented, I will instruct you on the law that you
are to apply in reaching your verdict.
Fourth, the parties will make closing arguments explaining what they believe
the evidence has shown and what inferences you should draw from the evidence.
What is said in closing argument is not evidence. Plaintiff has the right to give the
first closing argument and to make a short rebuttal argument after defendants’ closing
argument.
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Fifth, you will retire to the jury room and begin your deliberations.

The trial day will run from 9:00 a.m. until 5:30 p.m. You will have at least an
hour for lunch and two additional short breaks, one in the morning and one in the
afternoon. The courtroom is often kept chilly; you are welcome to dress accordingly.
During recesses you should keep in mind the following instructions:
First, do not discuss the case either among yourselves or with anyone else
during the course of the trial. The reason I must ask you to refrain from discussing
the case is that once you have expressed an opinion, there is a natural tendency to
defend it, and to resist changing your mind. The parties to this lawsuit have a right to
expect from you that you will keep an open mind throughout the trial. You should
not reach a conclusion until you have heard all of the evidence and you have heard
the lawyers’ closing arguments and my instructions to you on the law, and you have
retired to deliberate with the other members of the jury. I must warn you, in
particular, against commenting about the trial in an e-mail or a blog or Twitter or any
social media website. There have been news accounts recently about cases that have
had to be re-tried because a member of the jury communicated electronically about
the case during the trial. You can imagine what this would mean in the cost of a retrial, the inconvenience to your fellow jurors whose work would have been done for
nothing, and the stress experienced by the parties.
Second, do not permit any third person to discuss the case in your presence.
If anyone tries to talk to you despite your telling him not to, report that fact to the
court as soon as you are able. Do not discuss the event with your fellow jurors or
discuss with them any other fact that you believe you should bring to the attention of
the court.
Third, although it is a normal human tendency to converse with people with
whom one is thrown into contact, please do not talk to any of the parties or their
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attorneys or witnesses. By this I mean not only do not talk about the case, but do not
talk at all, even to pass the time of day. In no other way can all parties be assured of
the absolute impartiality they are entitled to expect from you as jurors.
Fourth, do not read about the case in the newspapers, or listen to radio or
television broadcasts about the trial. If a newspaper headline catches your eye, do not
examine the article further. Media accounts may be inaccurate and may contain
matters that are not proper for your consideration. You must base your verdict solely
on the evidence presented in court.
Fifth, no matter how interested you may become in the facts of the case, you
must not do any independent research, investigation, or experimentation. Do not
look up materials on the internet or in other sources. Again, you must base your
verdict solely on the evidence presented in court.

BASIC LEGAL PRINCIPLES
After you have heard all the evidence, I will give you some detailed instructions
about the law you will apply. But to guide you as you hear the evidence, I will provide
you with a brief summary of the basic principles applicable to this case.
Plaintiff’s claims are based on the Eighth Amendment to the United States
Constitution. This amendment provides that no cruel and unusual punishment may
be inflicted upon prisoners. Sometimes, a strip search may be warranted. But a strip
search violates the Eighth Amendment when the defendant acts in a way intended to
humiliate and inflict psychological pain rather than for legitimate prison purposes.
You will have three general issues to address in this case. The first issue is
whether plaintiff has proven that defendant Wenzel violated his Eighth Amendment
rights by authorizing a “staff-assisted” strip search rather than a less intrusive “visual”
strip search. The second issue is whether plaintiff has proven that defendant Lo
Bianco violated his Eighth Amendment rights by touching plaintiff inappropriately
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during the strip search. If you conclude that plaintiff has proven either of his first two
claims, then you will address the third issue in this case: whether defendants failed to
intervene to stop defendant Wenzel’s authorization of a staff-assisted strip search or
defendant Lo Bianco’s actual strip search of plaintiff.

HEARING THE EVIDENCE
Burden of Proof
You will hear the term “burden of proof” used during this trial. In simple
terms, the phrase “burden of proof” means that the party who makes a claim has the
obligation of proving that claim. Plaintiff has the burden to prove that his
Constitutional rights were violated by defendants. At the end of the trial, I will
instruct you on the proper burden of proof to be applied in this case.

Evidence
Evidence at a trial includes the sworn testimony of the witnesses, exhibits
admitted into the record, facts judicially noticed, and facts stipulated by counsel. You
may consider only evidence that is admitted into the record.
In deciding the facts of this case, you are not to consider the following as
evidence: statements and arguments of the lawyers, questions and objections of the
lawyers, testimony that I instruct you to disregard, and anything you may see or hear
when the court is not in session, even if what you see or hear is done or said by one of
the parties or by one of the witnesses.
Evidence may be either direct or circumstantial. Direct evidence is direct proof
of a fact, such as testimony by a witness about what the witness said or heard or did.
Circumstantial evidence is proof of one or more facts from which you could infer the
existence of another fact. If the question were whether it was raining on September 1,
direct evidence of this fact would be a witness’s testimony that they were outside and
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they saw it raining that day. Circumstantial evidence of the fact that it was raining
would that people came into a building carrying wet umbrellas that day. You should
consider both kinds of evidence. The law makes no distinction between the weight to
be given to either direct or circumstantial evidence. You are to decide how much
weight to give any evidence.

Credibility of Witnesses
In deciding the facts, you may have to decide which testimony to believe and
which testimony not to believe. You may believe everything a witness says, part of it,
or none of it. In considering the testimony of any witness, you may take into account
many factors, including the witness’s opportunity and ability to see or hear or know
the things the witness testifies about; the quality of the witness’s memory; the
witness’s appearance and manner while testifying; the witness’s interest in the
outcome of the case; any bias or prejudice the witness may have; other evidence that
may have contradicted the witness’s testimony; and the reasonableness of the
witness’s testimony in light of all the evidence. The weight of the evidence does not
necessarily depend upon the number of witnesses who testify.

Contradictory or Impeaching Evidence
A witness may be discredited by contradictory evidence or by evidence that at
some other time the witness has said or done something, or has failed to say or do
something, that is inconsistent with the witness’s present testimony.
If you believe any witness has been discredited, it is up to you to decide how
much of the testimony of that witness you believe.
If a witness is shown to have given false testimony knowingly, that is,
voluntarily and intentionally, about any important matter, you have a right to

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distrust the witness’s testimony about other matters. You may reject all the testimony
of that witness or you may choose to believe some or all of it.
The general rule is that if you find that a witness said something before the
trial that is different from what the witness said at trial you are to consider the earlier
statements only as an aid in evaluating the truthfulness of the witness’s testimony at
trial. You cannot consider as evidence in this trial what was said before the trial
began.
There is an exception to this general rule for witnesses who are the actual
parties in the case. If you find that any of the parties made statements before the trial
began that are different from the statements they made at trial, you may consider as
evidence in the case whichever statement you find more believable.

Drawing of Inferences
You are to consider only the evidence in the case. But in your consideration of
the evidence, you are not limited solely to what you see and hear as the witnesses
testify. You are permitted to draw, from facts you find have been proved, such
reasonable conclusions as seem justified in the light of your own experience and
common sense.

Experts
A person’s training and experience may make him or her a true expert in a
technical field. The law allows that person to state an opinion here about matters in
that particular field. It is up to you to decide whether you believe the expert’s
testimony and choose to rely upon it. Part of that decision will depend on your
judgment about whether the expert’s background of training and experience is
sufficient for him or her to give the expert opinion that you heard, and whether the
expert’s opinions are based on sound reasons, judgment, and information.
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During the trial, an expert witness may be asked a question based on
assumptions that certain facts are true and then asked for his or her opinion based
upon that assumption. Such an opinion is of use to you only if the opinion is based
on assumed facts that are proven later. If you find that the assumptions stated in the
question have not been proven, then you should not give any weight to the answer
the expert gave to the question.

Depositions
During the course of a trial the lawyers may refer to and read from depositions.
Depositions are transcripts of testimony taken while the parties are preparing for
trial. Deposition testimony is given under oath just like testimony given during the
trial. You should give it the same consideration you would give it had the witnesses
testified here in court.

Objections
During the trial, you will hear the lawyers make objections to certain questions
or to certain answers of the witnesses. When they do so, it is because they believe the
question or answer is legally improper and they want me to rule on it. Do not try to
guess why the objection is being made or what the answer would have been if the
witness had been allowed to answer it.
If I tell you not to consider a particular statement that has already been made,
put that statement out of your mind and remember that you may not refer to it
during your deliberations.

Questions
During the trial, I may sometimes ask a witness questions. Please do not
assume that I have any opinion about the subject matter of my questions.
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If you wish to ask a question about something you do not understand, write it
down on a separate slip of paper. When the lawyers have finished all of their
questions to the witness, if your question is still unanswered to your satisfaction, raise
your hand, and I will take the written question from you, show it to counsel, and
decide whether it is a question that can be asked. If it cannot, I will tell you that. I
will try to remember to ask about questions after each witness has testified.

Notetaking
If you want to take notes, there are notepads and pencils next to the jury
bench. This does not mean you have to take notes; take them only if you want to and
if you think they will help you to recall the evidence during your deliberations. Do
not let notetaking interfere with your important duties of listening carefully to all of
the evidence and of evaluating the credibility of the witnesses. Keep in mind that just
because you have written something down it does not mean that the written note is
more accurate than another juror’s mental recollection of the same thing. No one of
you is the “secretary” for the jury, charged with the responsibility of recording
evidence. Each of you is responsible for recalling the testimony and other evidence.
Although you can see that the trial is being recorded by a court reporter, you
should not expect to be able to use trial transcripts in your deliberations. You will
have to rely on your own memories.

Conclusion
That concludes my opening instructions. You are about to hear the opening
statements of counsel. Although these statements are not evidence, they should help
you understand the evidence that you will soon see and hear.

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