Davis, James v. Meisner, Michael et al
ORDER that Defendants' Motions in Limine (dkt. 125 ) are GRANTED, in part and DENIEDwithout prejudice in part.(2) Plaintiff James Davis's Motions in Limine (dkts. 112 , 124 , 134 ) are GRANTED inpart and DENIED in part. Signed by Magistrate Judge Stephen L. Crocker on 10/12/2017. (Attachments: # 1 Draft Voir Dire, # 2 Draft Introductory Jury Instructions, # 3 Draft Closing Instructions, # 4 Draft Deliberation Instructions, # 5 Draft Special Verdict) (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES J. DAVIS
SANDRA ASHTON, et al.,
INTRODUCTORY JURY INSTRUCTIONS
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
The party who begins the lawsuit is called the plaintiff. In this action, the
plaintiff is James J. Davis. The parties against whom the suit is brought are called the
defendants. In this action, the defendants are Sandra Ashton, Ronald Swenson, Tracy
Kopfhamer, Michael Rataczak, Theodore Anderson, Kevin Pitzen, and Randy Schneider,
and Philip Kerch.
Plaintiff James J. Davis is a prisoner at the Waupun Correctional Institution in
Waupun, Wisconsin, but his claims in this lawsuit stem from events that took place
while he was incarcerated at Columbia Correctional Institution in Portgage, Wisconsin.
Defendants are Wisconsin Department of Corrections employees who worked at
Columbia during the relevant time period.
Plaintiff claims that the defendants violated his rights under the First and Eighth
First, Plaintiff claims Ashton issued him several retaliatory conduct reports against
him in violation of the First Amendment.
Second, plaintiff claims that on October 29, 2013, Ashton, Swenson, Kopfhamer,
and Rataczak used excessive force in violation of the Eighth Amendment when they
conducted a cell extraction.
Third, Plaintiff claims that, also on October 29, 2013, defendants Anderson,
Pitzen, and Schneider violated his eighth amendment rights when they saw that other
officers were using excessive force against plaintiff but they did nothing to stop it.
Fourth, Plaintiff claims that on October 29, 2013, Kerch acted with deliberate
indifference to his serious medical needs in violation of the Eighth Amendment when he
failed to treat Plaintiff’s injuries.
The case will proceed as follows:
First, plaintiff, who is representing himself, 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 the plaintiff's case, the defendants may introduce
evidence. The defendants are not required to introduce any evidence or to call any
witnesses. If the defendants introduce evidence, the plaintiff may then introduce
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. The plaintiff has the right to give the first
closing argument and to make a short rebuttal argument after the defendants’ closing
Fifth, you will retire to the jury room and begin your deliberations.
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. At the end of the trial, I will instruct you on the proper burden
of proof to be applied in this case.
The trial day will run from 9:00 a.m. until 5:00 p.m. You will have at an hour for
lunch and two additional short breaks, one in the morning and one in the afternoon.
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 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 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 other electronic or print media. 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 re-trial, the inconvenience to your fellow jurors
whose work would have gone 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 in contact, please do not talk to any of the parties or their 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 produced 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 produced in court.
Considering the Evidence
Give the evidence whatever weight you believe it deserves. Use your common
sense in weighing the evidence, and consider the evidence in light of your own every day
experience. You are allowed to draw reasonable inferences from facts. In other words,
you may look at one fact and conclude from it that another fact exists. Any inferences
you make must be reasonable and must be based on the evidence in the case.
Direct and Circumstantial Evidence
You may have heard the terms “direct evidence” and “circumstantial evidence.”
Direct evidence is evidence that directly proves a fact. Circumstantial evidence is
evidence that indirectly proves a fact.
For example, direct evidence that it was raining outside is testimony by a witness
that she was outside in the rain. Indirect evidence that it was raining outside is
testimony by a witness that she saw someone enter the room carrying a wet umbrella.
You are to consider both direct and circumstantial evidence. The law does not
say that one is better than the other. It is up to you to decide how much weight to give
to any evidence, whether direct or circumstantial.
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 testified 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.
Sometimes at trial the parties and lawyers will 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 on the trial. You should
give it the same consideration you would give it had the witnesses testified here in court.
During the trial, you will hear the parties and 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
During the trial, I might ask a witness questions. Please do not assume that I
have any opinion about the subject matter of my questions.
If you wish to ask a question about something you do not understand, write it
down on a separate slip of paper. If, when the lawyers have finished all of their
questioning of the witness, the 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.
If you want to take notes, there are notepads and pencils for taking notes 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 reported, you should not expect to be
able to use trial transcripts in your deliberations. You will have to rely on your own
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 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. You are to
decide how much weight to give any evidence.
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 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 earlier before the trial
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, then 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.
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