Free Proposed Jury Instructions - District Court of Colorado - Colorado

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INSTRUCTION NO. 1 Ladies and Gentlemen of the Jury: Now that you have heard the evidence and will soon hear argument, it becomes my duty to give you the instructions of the court as to the law applicable to this case. It is your duty as jurors to follow the law as I shall state it to you, and to apply the law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me. Counsel may quite properly refer to some of the governing rules of law in their arguments. If, however, any difference appears to you between the law as stated by counsel and that stated by the court in these instructions, you are, of course, to be governed by the court's instructions. Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts, but rather yours. You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, bias, prejudice, or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences. Anything you may have seen or heard outside the courtroom is not evidence, and must be disregarded entirely.

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Statements and arguments of counsel are not evidence in the case. However, when the attorneys on both sides have stipulated or agreed as to the existence of a fact, the jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved. Unless you are otherwise instructed, the evidence in the case consists of the sworn testimony of the witnesses, regardless of who may have called them, all exhibits received in evidence, regardless of who may have produced them, and all facts which may have been admitted, stipulated, or judicially noticed. The mere number of witnesses appearing for or against a particular fact, issue, or proposition does not in and of itself prove or disprove that fact, issue, or proposition. Any evidence as to which an objection was sustained by the court, and any evidence ordered stricken by the court, must be disregarded entirely . You are to consider only the evidence in the case. However, in your consideration of the evidence, you are not limited to just the statements of the witnesses. In other words, you are not limited solely to what you see and hear as the witnesses testified. You are permitted to draw, from the facts which you find have been proved, such reasonable inferences as you feel are justified in the light of your experience. At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it is difficult and time consuming for the reporter to read back lengthy testimony.

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The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree. Any verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. However, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times that you are not partisans. You are judges ­ judges of the facts. Your sole interest is to seek the truth from the evidence in the case and return a just verdict based upon the evidence in the case and the law as the court has presented it to you.

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INSTRUCTION NO. 3 The Plaintiff, William Cadorna, has the burden of proving any claim by a preponderance of the evidence. The Defendant, the City and County of Denver, has the burden of proving any affirmative defense by a preponderance of the evidence. To "establish by the preponderance of the evidence" means to prove that something is more likely so than it is not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared to that opposed to it, has more convincing force, and produces in your mind a belief that what is sought to be provided is more likely true than not true. In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them, and any fact that has been admitted, stipulated, or judicially noticed. "Burden of proof" means the obligation a party has to prove claim or defense by a preponderance of the evidence. The party with the burden of proof can use evidence produced by any party to persuade you. If a party fails to meet burden of proof as to any claim or defense or if the evidence weighs so evenly that you are unable to say that there is a preponderance on either side, you must reject that claim or defense.

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INSTRUCTION NO. 4 In this civil action the burden is on plaintiff to prove every essential element of each claim by a preponderance of the evidence. If the proof should fail to establish any essential element of any of plaintiff's claims by a preponderance of the evidence in the case, the jury should find for the defendant as to that claim. To "establish by a preponderance of the evidence" means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. This rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and the exhibits received in evidence, regardless of who may have produced them, and any fact that has been admitted, stipulated, or judicially noticed.

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INSTRUCTION NO. 8 The questions asked by a lawyer for either party to this case are not evidence. If a lawyer asks a question of a witness which contains an assertion of fact, therefore, you may not consider the assertion by the lawyer as any evidence of that fact. Only the answers are evidence.

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INSTRUCTION NO. 9 You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witnesses, by the manner in which the witness testifies, by the character of the testimony given, and by evidence to the contrary of the testimony given. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind and demeanor or manner while on the stand. Consider the witness' ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently, and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.

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After making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it deserves. A witness may be discredited or impeached 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, which is inconsistent with the witness' present testimony. You may, in short, accept or reject the testimony of any witness in whole or in part. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is "knowingly" done if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

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INSTRUCTION NO. 11 You have heard the parties stipulate or agree to the existence of some facts. This agreement makes the presentation of any evidence to prove these facts unnecessary. The agreement means that you must accept these facts as true: 1. Plaintiff is and was at all relevant times a resident of Jefferson County,

Colorado. Plaintiff serviced as a Firefighter for, and member of the classified service of, the Denver Fire Department commencing July 1, 1976. 2. 3. Plaintiff's date of birth is October 31, 1952. Defendant City and County of Denver ("City") is a municipal corporation

and local government established and existing pursuant to Article XX, §6, of the Constitution of the State of Colorado. 4. The Civil Service Commission of the City and County of Denver

("Commission") is and was at all relevant times an agency of the City and County of Denver established and existing under provisions of the Charter of the City and County of Denver and, pursuant thereto, has final decision-making and policy-making authority concerning the discipline of members of the classified service, including Denver Firefighters. 5. Plaintiff William Cadorna is or was: (a) a "citizen of the United States or

other person within the jurisdiction thereof" within the meaning of 42 U.S.C. §1983; (b) an "employee" of the City and County of Denver within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., (c) an "employee" within the meaning of Title I, 42 U.S.C. §12112, Title II, 42 U.S.C. §12132, and Title V, 42 U.S.C.

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§12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. 6. Defendant City and County of Denver is a municipal corporation, local

government, "person" and "employer" subject to this court's jurisdiction under 42 U.S.C. §1983, the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq.,, and Title I, 42 U.S.C. §12112, Title II, 42 U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. This court has jurisdiction over Plaintiff's claims against the City under 28 U.S.C. §§1331 and 1367(a), and is the proper venue for Plaintiff's action against the City under 28 U.S.C. §1391(b)(2). 7. The City is an "employer" and "public entity" within the meaning of Titles I

and II of the Americans With Disabilities Act, 42 U.S.C. §§12112 and 12132, and a "program or activity receiving federal financial assistance" within the meaning of the Rehabilitation Act, 29 U.S.C. §504. 8. On October 24, 2003, Plaintiff filed a timely charge of, among other things,

age and disability discrimination, and unlawful retaliation, with the United States Equal Employment Opportunity Commission concerning his termination on January 2, 2003. 9. On September 27, 2004, Plaintiff again filed a timely charge of, among

other things, age and disability discrimination, and unlawful retaliation, with the United States Equal Employment Opportunity Commission concerning the Denver Civil Service Commission Hearing Officer's January 30, 2004 Decision and Order.

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10.

During his employment by the City, Plaintiff was not terminable at will, but

was protected from discipline or termination by civil service appeal rights, a collective bargaining agreement, and due process guarantees of the United States Constitution. 11. Plaintiff possessed a property and liberty interest in his employment as a

Denver Firefighter that was protected by the procedural due process guarantees of the United States Constitution. 12. In 2002, Plaintiff worked at Denver Fire Department Station 27 in

Montbello. Lt. Frank Hoffman ("Hoffman") commanded one of the units assigned to Station 27 and had supervisory authority over Plaintiff. Assistant Chief Joe Hart ("Hart") commanded the District in which Station 27 is located, and had supervisory authority over Hoffman and Plaintiff. 13. On Saturday, December 7, 2002, Plaintiff was on duty. He and his

colleagues on Tower 27 went to the Safeway grocery store (No. 0141) at 4884 Chambers Road, Denver, Colorado ("the Safeway store") to shop for groceries that morning, but received an emergency call requiring them to leave the store immediately. In answering the call, Plaintiff left the store with a copy of the "Colorado Colore" cookbook ("the cookbook"). 14. 15. Hoffman did not ask Plaintiff why he had left the store with the cookbook. On Saturday, December 7, 2002, Hoffman reported to Hart that he had

seen Plaintiff leave the Safeway store with a copy of the cookbook. 16. On December 8, 2002, Hart went to the Safeway store, interviewed

Safeway Clerk Kevin McKee ("McKee"), and spoke with Safeway Store Manager Mike Brown ("Brown").

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17.

On December 10, 2002, Brown signed a criminal complaint, completed or

delivered to him by Denver Police Officer Charles W. Jones, accusing Plaintiff of shoplifting the cookbook on December 7, 2002. 18. In speaking with Brown prior to Brown's signing of the criminal complaint

against Plaintiff, Hart did not show Brown the written statements of the three Denver Firefighters. 19. Hart obtained written statements from the three Firefighters manning

Tower 27 with Plaintiff: Frank Hoffman, Gil Lettig, and Russ Dobson. None of the written statements obtained by Hart from Hoffman, Lettig, or Dobson states that Plaintiff shoplifted the cookbook. Hoffman and Dobson stated that they saw Plaintiff leave the Safeway Store carrying the cookbook. Dobson said in his statement that he "noticed Bill carrying a book in his arms." 20. The December 10, 2002 criminal complaint against Plaintiff does not

identify Kevin McKee as a witness. 21. The Safeway store contains numerous surveillance cameras that were in

operation on December 7, 2002. 22. Safeway retains any surveillance videos made in the Safeway store for

thirty days before re-using them, and makes them available to law enforcement upon request. 23. As of December 8, 2002, Safeway had in its possession all of the

videotapes made by any surveillance camera in the Safeway store at any time during the preceding 30 days.

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24.

As of January 2, 2003, Safeway had in its possession all of the videotapes

made by any surveillance camera in the Safeway store at any time during the preceding 30 days. 25. Safeway Store Manager Mike Brown had access to the surveillance video

system for the Safeway Store. 26. Asst. Chief Joseph Hart conducted the investigation of the allegation that

Plaintiff took a cookbook from Safeway. 27. Joe Hart was not assigned to the Fire Department Human Resources

Bureau in 2002 or 2003. 28. On December 13, 2002, the Denver Fire Department served Plaintiff with

a written Contemplation of Disciplinary Action. 29. Fire Chief Roderick Juniel recommended to Manager of Public Safety

Tracy Howard that Plaintiff be dismissed from the Denver Fire Department. 30. On January 2, 2003, Manager of Public Safety Tracy Howard entered a

Departmental Order of Disciplinary Dismissal dismissing Plaintiff from the Denver Fire Department. 31. In January, 2003, Plaintiff timely appealed the Manager of Safety's

January 2, 2003 Departmental Order of Disciplinary Dismissal to the Denver Civil Service Commission. 32. Prior to January 2, 2003, Plaintiff did not submit a petition for retirement to

the Board of Trustees of the Denver Firefighters' Pension Fund.

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33.

At the time of the Manager of Safety's January 2, 2003 Departmental

Order of Disciplinary Dismissal, Plaintiff qualified for age and service retirement because he met the age and years of experience requirements for such a retirement. 34. After the Manager of Safety's January 2, 2003 Departmental Order of

Disciplinary Dismissal, Plaintiff submitted his first written petition for age and service retirement. 35. On March 13, 2003, the Board of Trustees of the Denver Firefighters'

Pension Fund approved Plaintiff's application for age and service retirement, effective March 13, 2003. 36. On April 14, 2003, the Denver Firefighter's Pension Fund Board sent the

Denver Civil Service Commission a letter informing it of its approval on March 13, 2003 of Plaintiff's petition for age and service retirement, effective March 13, 2003. That April 14, 2003 letter has been in the Commission's possession, in Plaintiff's Civil Service Commission personnel file, since its receipt by the Commission in April 2003. 37. The Denver Fire Department employee(s) responsible for administering

Denver firefighter pension applications in February and March, 2003 advised Firefighters submitting age and service retirements of the potential tax advantages of a disability retirement. 38. After January 2, 2003, personnel of the Denver Fire Department

responsible for administering Denver firefighter pension applications advised Plaintiff of his retirement options, including the possibility that he might qualify for a disability retirement that could result in more favorable tax treatment of his pension than an age and service retirement.

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39.

After the Manager of Safety's January 2, 2003 Departmental Order of

Disciplinary Action, Plaintiff submitted a written petition to the Denver Firefighters' Pension Fund Board to convert his age and service retirement to a disability pension based upon hearing loss. 40. On or about April 25, 2003, the Denver Firefighters' Pension Fund Board

approved Plaintiff's petition for disability retirement and changed his retirement status to disability retirement. 41. On or about June 3, 2003, the Denver Firefighters' Pension Fund sent the

Denver Civil Service Commission a letter informing it of its approval of Plaintiff's petition for disability retirement. That June 3, 2003 letter has been in the Commission's possession, in Plaintiff's Civil Service Commission personnel file, since its receipt by the Commission in June, 2003. 42. On May 7, 2003, the Denver City Attorney's Office tried Plaintiff in Denver

County Court on the allegation of shoplifting. The May 7, 2003 criminal trial ended in a mistrial because the jury could not agree upon a unanimous verdict. It was scheduled for retrial. 43. In June, 2003, Safeway Store Manager Mike Brown provided a written

statement that, in December, 2002, an employee brought him a copy of the cookbook Plaintiff had been accused of shoplifting. The cookbook contained Plaintiff's name, "badge number", and other identifying information. Brown also stated that he removed the page containing Plaintiff's name and other identifying information from the cookbook, and returned the cookbook to the store's shelved for resale.

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44. Plaintiff. 45.

In July, 2003, the Denver City Attorney dismissed the charges against

In the proceedings before the Hearing Officer, the City contended that

Plaintiff's retirement after his disciplinary dismissal foreclosed his reinstatement or back pay beyond the effective date of his age and service retirement. 46. During the hearing, neither party argued or presented any evidence that

Plaintiff applied for age and service retirement "prior to dismissal." 47. On January 30, 2004, the Hearing Officer issued his decision. He

reversed the Manager of Safety's disciplinary termination of Plaintiff. The Hearing Officer found that the City had failed to sustain its burden of proving that Plaintiff was guilty of the misconduct upon which the Manager of Safety based Plaintiff's disciplinary dismissal. 48. The Hearing Officer did not reinstate Plaintiff or grant him back pay for any

period after March 15, 2003. 49. At the time of the Hearing Officer's Decision on January 30, 2004, there

was no evidence in the record before the Hearing Officer that Plaintiff applied for age and service or disability retirement prior to January 2, 2003. 50. 51. Plaintiff timely appealed the Hearing Officer's Decision to the Commission. The Commission issued its decision affirming the Hearing Officer's

Decision on May 20, 2005.

Final Pretrial Order, April 18, 2006

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INSTRUCTION NO. 12 Any finding of fact you make must be based on probabilities, not possibilities. A finding of fact may not be based on surmise, speculation, or conjecture.

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INSTRUCTION NO. 13 Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.

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INSTRUCTION NO. 14 The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done or omitted by that person and all other facts and circumstances received in evidence, which may aid in your determination of that person's knowledge or intent. You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

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INSTRUCTION NO. 17 There is nothing particularly different in the way that a juror should consider the evidence in a trial from that in which any reasonable and careful person would deal with any very important question that must be resolved by examining facts, opinions, and evidence. You are expected to use your good sense in considering and evaluating the evidence in the case. Use the evidence only for those purposes for which it has been received and give the evidence a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. Keep constantly in mind that it would be a violation of your sworn duty to base a verdict on anything other than the evidence received in the case and the instructions of the Court.

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INSTRUCTION NO. 23 It is proper to add the caution that nothing said in these instructions and nothing in any form of verdict prepared for your convenience is meant to suggest or convey in any way or manner any intimation as to what verdict the court thinks you should find. What the verdict shall be is your sole and exclusive duty and responsibility.

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INSTRUCTION NO. 24 The original written instructions are a part of the court record. You are not permitted to write any notes on the original instructions or to deface them in any way. The original instructions and the exhibits are to be returned to the court at the conclusion of your deliberations. On retiring to the jury room to begin your deliberations, you must elect one of your members to act as your foreperson. The foreperson will preside over your deliberations and will be your spokesperson here in court. Any verdict you reach must represent the collective judgment of the jury. In order to return a verdict, it is necessary that each juror agree to it. In other words, any verdict you reach must be unanimous. It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for himself and herself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinion if convinced it is erroneous. However, do not surrender your honest conviction solely because of the opinion of your fellow jurors or for the mere purpose of returning a unanimous verdict. Remember at all times that you are not partisans. You are judges ­ judges of the facts of this case. Your sole interest is to seek the truth from the evidence received during the trial.

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Your verdict(s) must be based solely on the evidence received in the case. Nothing you have seen or read outside of court may be considered. Nothing that I have said or done during the course of this trial is intended, in any way, to suggest to you somehow what I think your verdicts should be. Nothing said in these instructions and nothing in any form of verdict, which has been prepared for your convenience, is to suggest or convey to you in any way or manner any intimation as to what verdict(s) I think you should return. What any verdict shall be is the exclusive duty and responsibility of the jury. As I have told you many times, you are the sole judges of the facts. Verdict forms have been prepared for your convenience. You will take the verdict forms to the jury room, and when you have reached unanimous agreement as to your verdict(s), you will have your foreperson write your verdict(s), date and sign, together with all other jurors, the verdict form(s), and then return with the verdict form(s) to the courtroom.

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INSTRUCTION NO. 25 If it becomes necessary during your deliberations to communicate with the court, you may send a note by the bailiff signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court regarding the issues of the case by any means other than such a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case other than in writing, or orally here in open court. If you do send a note to me containing a question or request for further direction, please bear in mind that a response takes considerable time and effort. I must first notify counsel to return to court. Then I must confer with counsel, consider their arguments and, if necessary, research the question before reducing the answer or direction to writing. You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person ­ not even to the court­ how the jury stands, numerically or otherwise, on the questions before you, until after you have reached unanimous verdicts.