Davis, James v. Meisner, Michael et al

Filing 148

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)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN JAMES J. DAVIS Plaintiff, 15-cv-268-slc v. SANDRA ASHTON, et al., Defendants. 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 trial. 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 Amendment: 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 rebuttal evidence. Third, after the evidence is presented, I will instruct you on the law that you are to apply in reaching your verdict. 2 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 argument. 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. 3 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. 4 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. 5 Depositions 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. Objections 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 deliberations. Questions 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. 6 Notetaking 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 memories. 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 find another fact. You should consider both kinds of evidence. The law makes no distinction 7 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 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, then you may consider as evidence in the case whichever statement you find more believable. 8 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. 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?