Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Rosval Patterson SBN 018872 Patterson & Associates 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Telephone: 602.462.1004 E-Mail: [email protected] Attorney for Plaintiff DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona State Bar No. 6835 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, CIV-04-0429-PHX-MHM Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service, Defendant. JOINT PROPOSED JURY INSTRUCTIONS

The Parties, pursuant to the Court's February 13, 2007 and April 10, 2007 Orders (Doc. ## 89, 112), hereby agree upon and request the Court to include and use the attached jury instructions in charging the jury. The stipulated instruction are derived from the Ninth Circuit Manual of Model Instructions for the Ninth Circuit, (2007). Permission of the Court is requested to subsequently withdraw any of the attached instructions and to offer such additional instructions as may become appropriate. Further,

Defendant submits these proposed instructions on the basis that the jury decides only compensatory damages., not equitable remedies such as back pay.

Case 2:04-cv-00429-MHM

Document 131

Filed 06/08/2007

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Respectfully submitted this 8th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney PATTERSON & ASSOCIATES

7 s/Rosval Patterson 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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ROSVAL PATTERSON Attorney for Plaintiff

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JOINT PROPOSED JURY INSTRUCTION NO. 1 1.1A DUTY OF JURY (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on

5 the law. 6 These instructions are preliminary instructions to help you understand the principles that

7 apply to civil trials and to help you understand the evidence as you listen to it. You will be 8 allowed to keep this set throughout the trial to which to refer. This set of instructions is not to 9 be taken home and must remain in the jury room when you leave in the evenings. At the end of 10 the trial, I will give you a final set of instructions. It is the final set of instructions which will 11 govern your deliberations. 12 You must not infer from these instructions or from anything I may say or do as indicating

13 that I have an opinion regarding the evidence or what your verdict should be. 14 It is your duty to find the facts from all the evidence in the case. To those facts you will

15 apply the law as I give it to you. You must follow the law as I give it to you whether you agree 16 with it or not. And you must not be influenced by any personal likes or dislikes, opinions, 17 prejudices, or sympathy. That means that you must decide the case solely on the evidence before 18 you. You will recall that you took an oath to do so. 19 In following my instructions, you must follow all of them and not single out some and

20 ignore others; they are all important. 21 22 23 24 25 26 27 28 1
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Comment Instruction 1.1A may be used as a preliminary instruction if the court decides to provide

3 a written set of preliminary instructions at the beginning of the trial which the jurors are 4 permitted to keep with them. In the final set of instructions, the court should substitute 5 Instruction 1.1C. 6 7 GIVEN AS REQUESTED: ______________ GIVEN AS MODIFIED: ________________ 8 REFUSED: __________________________ 9 WITHDRAWN: ______________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 2 1.1C DUTY OF JURY (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS AT END OF CASE) Members of the Jury: Now that you have heard all of the evidence [and the arguments of

5 the attorneys], it is my duty to instruct you as to the law of the case. 6 [Each of you has received a copy of these instructions that you may take with you to the

7 jury room to consult during your deliberations.] 8 9 10 or [A copy of these instructions will be sent with you to the jury room when you deliberate.] You must not infer from these instructions or from anything I may say or do as indicating

11 that I have an opinion regarding the evidence or what your verdict should be. 12 It is your duty to find the facts from all the evidence in the case. To those facts you will

13 apply the law as I give it to you. You must follow the law as I give it to you whether you agree 14 with it or not. And you must not be influenced by any personal likes or dislikes, opinions, 15 prejudices, or sympathy. That means that you must decide the case solely on the evidence before 16 you. You will recall that you took an oath to do so. 17 In following my instructions, you must follow all of them and not single out some and

18 ignore others; they are all important. 19 20 Comment Instruction 1.1C should be used with the written final set of the instructions to be sent to

21 the jury. Bracketed material should be selected to cover whether single or multiple sets of 22 written instructions are provided. 23 GIVEN AS REQUESTED: ______________ 24 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 25 WITHDRAWN: ______________________ 26 27 28 _______________________________________ UNITED STATES DISTRICT COURT JUDGE 3
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JOINT PROPOSED JURY INSTRUCTION NO. 3 1.6 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: 1. 2. 3. the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the lawyers have agreed.

13 GIVEN AS REQUESTED: ______________ 14 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 15 WITHDRAWN: ______________________ 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 4 1.7 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into

4 evidence. Certain things are not evidence, and you may not consider them in deciding what the 5 facts are. I will list them for you: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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(1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition sometimes testimony and exhibits are received only for a limited purpose; when I [give] [have given] a limiting instruction, you must follow it. (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

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Comment With regard to the bracketed material in paragraph 3, select the appropriate bracket

3 depending on whether the instruction is given at the beginning or at the end of the case. See also 4 Instruction 1.6 (What Is Evidence). 5 GIVEN AS REQUESTED: ______________ 6 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 7 WITHDRAWN: ______________________ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 5 1.8 EVIDENCE FOR LIMITED PURPOSE Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you

5 must consider it only for that limited purpose and for no other. 6 [The testimony [you are about to hear] [you have just heard] may be considered only for

7 the limited purpose of [describe purpose] and for no other purpose.] 8 9 Comment As a rule, limiting instructions need only be given when requested and need not be given

10 sua sponte by the court. United States v. McLennan, 563 F.2d 943, 947­48 (9th Cir.1977), cert. 11 denied, 435 U.S. 969 (1978). 12 See United States v. Marsh, 144 F.3d 1229, 1238 (9th Cir.) (when the trial court fails to

13 instruct the jury in its final instructions regarding the receipt of evidence for a limited purpose, 14 the Ninth Circuit examines the trial court's preliminary instructions to determine if the court 15 instructed the jury on this issue), cert. denied, 525 U.S. 973 (1998). 16 See also Instructions 1.7 (What is Not Evidence) and 2.8 (Impeachment

17 Evidence--Witness). 18 19 GIVEN AS REQUESTED: ______________ 20 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 21 WITHDRAWN: ______________________ 22 23 24 25 26 27 28 7
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 6 1.9 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such

4 as testimony by a witness about what that witness personally saw or heard or did. Circumstantial 5 evidence is proof of one or more facts from which you could find another fact. You should 6 consider both kinds of evidence. The law makes no distinction between the weight to be given 7 to either direct or circumstantial evidence. It is for you to decide how much weight to give to 8 any evidence. 9 10 11 12 13 14 15 16 17 18 GIVEN AS REQUESTED: ______________ 19 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 20 WITHDRAWN: ______________________ 21 22 23 24 25 26 27 28 8
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Comment It may be helpful to include an illustrative example in the instruction: By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may provide a different explanation for the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 7 1.10 RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. When a

4 lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks 5 that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the 6 objection, the question may be answered or the exhibit received. If I sustain the objection, the 7 question cannot be answered, and the exhibit cannot be received. Whenever I sustain an 8 objection to a question, you must ignore the question and must not guess what the answer might 9 have been. 10 Sometimes I may order that evidence be stricken from the record and that you disregard

11 or ignore the evidence. That means that when you are deciding the case, you must not consider 12 the evidence that I told you to disregard. 13 14 15 16 17 18 GIVEN AS REQUESTED: ______________ 19 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 20 WITHDRAWN: ______________________ 21 22 23 24 25 26 27 28 9
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 8 1.11 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and

4 which testimony not to believe. You may believe everything a witness says, or part of it, or none 5 of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about 6 it. 7 8 9 10 11 12 13 14 15 16 In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness's testimony; (6) the reasonableness of the witness's testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of

17 witnesses who testify about it. 18 19 20 GIVEN AS REQUESTED: ______________ 21 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 22 WITHDRAWN: ______________________ 23 24 25 26 27 28 10
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 9 1.12 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including members of your family,

5 people involved in the trial, or anyone else; this includes discussing the case in internet chat 6 rooms or through internet "blogs," internet bulletin boards or e-mails. Nor are you allowed to 7 permit others to discuss the case with you. If anyone approaches you and tries to talk to you 8 about the case, please let me know about it immediately; 9 Second, do not read or listen to any news stories, articles, radio, television, or online

10 reports about the case or about anyone who has anything to do with it; 11 Third, do not do any research, such as consulting dictionaries, searching the Internet or

12 using other reference materials, and do not make any investigation about the case on your own; 13 Fourth, if you need to communicate with me simply give a signed note to the [bailiff]

14 [clerk] [law clerk] to give to me; and 15 Fifth, do not make up your mind about what the verdict should be until after you have

16 gone to the jury room to decide the case and you and your fellow jurors have discussed the 17 evidence. Keep an open mind until then. 18 Finally, until this case is given to you for your deliberation and verdict, you are not to

19 discuss the case with your fellow jurors. 20 21 Comment An abbreviated instruction should be repeated before the first recess and as needed before

22 other recesses. 23 The practice in federal court of instructing jurors not to discuss the case until deliberations

24 is widespread. See, e.g., United States v. Pino­Noriega, 189 F.3d 1089, 1096 (9th Cir.) ("There 25 is a reason that most judges continually admonish their juries during trials not to discuss the 26 evidence or begin deliberations until told to do so, after all of the evidence, argument, and 27 instruction on the law has been received."), cert. denied, 528 U.S. 989 (1999). 28 11
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State court practice in some jurisdictions does allow discussion. If the court decides to allow discussion, substitute the following language for the final

3 paragraph of the instruction: 4 5 6 7 8 9 10 11 12 GIVEN AS REQUESTED: ______________ 13 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 14 WITHDRAWN: ______________________ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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You may discuss with fellow jurors the testimony as it is presented, provided that all jurors are present for the discussion. You are to keep an open mind throughout the case until you have fully deliberated.

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 10 1.13 NO TRANSCRIPT AVAILABLE TO JURY During deliberations, you will have to make your decision based on what you recall of

4 the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the 5 testimony as it is given. 6 If at any time you cannot hear or see the testimony, evidence, questions or arguments, let

7 me know so that I can correct the problem. 8 9 Comment The practice of discouraging read backs of testimony has been criticized in United States

10 v. Damsky, 740 F.2d 134, 138 (2d Cir.), cert. denied, 469 U.S. 918 (1984). See also Jury 11 Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 5.2.D (2004). 12 13 14 15 16 17 GIVEN AS REQUESTED: ______________ 18 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 19 WITHDRAWN: ______________________ 20 21 22 23 24 25 26 27 28 13
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The court may wish to repeat this instruction in the instructions at the end of the trial.

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 11 1.14 TAKING NOTES If you wish, you may take notes to help you remember the evidence. If you do take notes,

4 please keep them to yourself until you and your fellow jurors go to the jury room to decide the 5 case. Do not let note-taking distract you. When you leave, your notes should be left in the 6 [courtroom] [jury room] [envelope in the jury room]. No one will read your notes. They will 7 be destroyed at the conclusion of the case. 8 Whether or not you take notes, you should rely on your own memory of the evidence.

9 Notes are only to assist your memory. You should not be overly influenced by your notes or 10 those of your fellow jurors. 11 12 Comment It is well settled in this circuit that the trial judge has discretion to allow jurors to take

13 notes. United States v. Baker, 10 F.3d 1374, 1403 (9th Cir.1993), cert. denied, 513 U.S. 934 14 (1994). See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial 15 Procedures, § 3.4 (2004). 16 17 18 19 GIVEN AS REQUESTED: ______________ 20 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 21 WITHDRAWN: ______________________ 22 23 24 25 26 27 28 14
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 12 1.18 BENCH CONFERENCES AND RECESSES From time to time during the trial, it [may become] [became] necessary for me to talk

4 with the attorneys out of the hearing of the jury, either by having a conference at the bench when 5 the jury [is] [was] present in the courtroom, or by calling a recess. Please understand that while 6 you [are] [were] waiting, we [are] [were] working. The purpose of these conferences is not to 7 keep relevant information from you, but to decide how certain evidence is to be treated under 8 the rules of evidence and to avoid confusion and error. 9 Of course, we [will do] [have done] what we [can] [could] to keep the number and length

10 of these conferences to a minimum. I [may] [did] not always grant an attorney's request for a 11 conference. Do not consider my granting or denying a request for a conference as any indication 12 of my opinion of the case or of what your verdict should be. 13 14 15 16 17 18 GIVEN AS REQUESTED: ______________ 19 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 20 WITHDRAWN: ______________________ 21 22 23 24 25 26 27 28 15
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 13 1.19 OUTLINE OF TRIAL Trials proceed in the following way: First, each side may make an opening statement.

4 An opening statement is not evidence. It is simply an outline to help you understand what that 5 party expects the evidence will show. A party is not required to make an opening statement. 6 The plaintiff will then present evidence, and counsel for the defendant may

7 cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may 8 cross-examine. 9 After the evidence has been presented, I will instruct you on the law that applies to the

10 case and the attorneys will make closing arguments. 11 12 13 14 GIVEN AS REQUESTED: ______________ 15 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 16 WITHDRAWN: ______________________ 17 18 19 20 21 22 23 24 25 26 27 28 16
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After that, you will go to the jury room to deliberate on your verdict.

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 14 1.3 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by a

4 preponderance of the evidence, it means you must be persuaded by the evidence that the claim 5 [or affirmative defense] is more probably true than not true. 6 7 it. 8 9 10 11 12 13 14 GIVEN AS REQUESTED: ______________ 15 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 16 WITHDRAWN: ______________________ 17 18 19 20 21 22 23 24 25 26 27 28 17
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You should base your decision on all of the evidence, regardless of which party presented

Comment This instruction may not apply to cases based on state law.

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 15 1.6 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: 1. 2. 3. the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the lawyers have agreed.

11 GIVEN AS REQUESTED: ______________ 12 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 13 WITHDRAWN: ______________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 16 1.7 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received

4 into evidence. Certain things are not evidence, and you may not consider them in deciding 5 what the facts are. I will list them for you: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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(1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition sometimes testimony and exhibits are received only for a limited purpose; when I [give] [have given] a limiting instruction, you must follow it. (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

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Comment With regard to the bracketed material in paragraph 3, select the appropriate bracket

3 depending on whether the instruction is given at the beginning or at the end of the case. See 4 also Instruction 1.6 (What Is Evidence). 5 6 GIVEN AS REQUESTED: ______________ 7 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 8 WITHDRAWN: ______________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 17 2.2 STIPULATIONS OF FACT The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that

4 will be read to you]. You should therefore treat these facts as having been proved. 5 6 Comment When parties enter into stipulations as to material facts, those facts will be deemed to

7 have been conclusively proved, and the jury may be so instructed. United States v. 8 Mikaelian, 168 F.3d 380, 389 (9th Cir.1999) (citing United States v. Houston, 547 F.2d 104, 9 107 (9th Cir.1976)), amended by 180 F.3d 1091 (9th Cir.1999). 10 11 12 13 GIVEN AS REQUESTED: ______________ 14 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 15 WITHDRAWN: ______________________ 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 18 2.4 DEPOSITION IN LIEU OF LIVE TESTIMONY A deposition is the sworn testimony of a witness taken before trial. The witness is

4 placed under oath to tell the truth and lawyers for each party may ask questions. The 5 questions and answers are recorded. [When a person is unavailable to testify at trial, the 6 deposition of that person may be used at the trial.] 7 The deposition of [witness] was taken on [date]. You should consider deposition

8 testimony, presented to you in court in lieu of live testimony, insofar as possible, in the same 9 way as if the witness had been present to testify. 10 [Do not place any significance on the behavior or tone of voice of any person reading

11 the questions or answers.] 12 13 Comment This instruction should be used only when testimony by deposition is used in lieu of

14 live testimony. The committee recommends that it be given immediately before a deposition 15 is to be read. It need not be repeated if more than one deposition is read. If the judge prefers 16 to include the instruction as a part of his or her instructions before evidence, it should be 17 modified appropriately. 18 19 20 21 22 GIVEN AS REQUESTED: ______________ 23 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 24 WITHDRAWN: ______________________ 25 26 27 28 22
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 19 2.5 TRANSCRIPT OF TAPE RECORDING You [are about to listen] [have listened] to a tape recording that has been received in

4 evidence. [Please listen to it very carefully.] Each of you [has been] [was] given a transcript 5 of the recording to help you identify speakers and as a guide to help you listen to the tape. 6 However, bear in mind that the tape recording is the evidence, not the transcript. If you [hear] 7 [heard] something different from what [appears] [appeared] in the transcript, what you heard 8 is controlling. After the tape has been played, the transcript will be taken from you. 9 10 Comment See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (the recording itself is

11 the evidence to be considered; the transcript is merely an aid). 12 See United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir. 2004) (court instructed

13 jury that transcripts were only aids to understanding and that the recordings themselves were 14 evidence). 15 The committee recommends that this instruction be given immediately before a tape

16 recording is played so that the jury is alerted to the fact that what they hear is controlling. It 17 need not be repeated if more than one tape recording is played. It is good practice to remind 18 the jury that the tape recording and not the transcript is the evidence, and that they should 19 disregard anything in the transcript that they do not hear. 20 See Instructions 2.6 (Transcript of Recording in Foreign Language), and 2.7 (Foreign

21 Language Testimony). 22 23 24 GIVEN AS REQUESTED: ______________ 25 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 26 WITHDRAWN: ______________________ 27 28 _______________________________________ UNITED STATES DISTRICT COURT JUDGE 23
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JOINT PROPOSED JURY INSTRUCTION NO. 20 2.10 USE OF INTERROGATORIES OF A PARTY Evidence [will now be] [was] presented to you in the form of answers of one of the

4 parties to written interrogatories submitted by the other side. These answers [have been] 5 [were] given in writing and under oath, before the actual trial, in response to questions that 6 were submitted in writing under established court procedures. You should consider the 7 answers, insofar as possible, in the same way as if they were made from the witness stand. 8 9 Comment Use this oral instruction before interrogatories and answers are read to the jury; it may

10 also be included in the concluding written instructions to the jury. The attorney should warn 11 the judge ahead of time and give the judge an opportunity to give this oral instruction. This 12 oral instruction is not appropriate if answers to interrogatories are being used for 13 impeachment only. 14 Do not use this instruction for requests for admission under Fed. R. Civ. P. 36. The

15 effect of requests for admission under the rule is not the same as the introduction of evidence 16 through interrogatories. If an instruction is needed, a special one will have to be drafted. 17 18 19 GIVEN AS REQUESTED: ______________ 20 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 21 WITHDRAWN: ______________________ 22 23 24 25 26 27 28 24
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 21 2.11 EXPERT OPINION Some witnesses, because of education or experience, are permitted to state opinions

4 and the reasons for those opinions. 5 Opinion testimony should be judged just like any other testimony. You may accept it

6 or reject it, and give it as much weight as you think it deserves, considering the witness's 7 education and experience, the reasons given for the opinion, and all the other evidence in the 8 case. 9 10 11 12 13 GIVEN AS REQUESTED: ______________ 14 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 15 WITHDRAWN: ______________________ 16 17 18 19 20 21 22 23 24 25 26 27 28 25
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Comment See Fed. R. Evid. 602, 701­05.

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 22 2.12 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE (As applicable) Certain charts and summaries not received in evidence [may be] [have been] shown to

4 you in order to help explain the contents of books, records, documents, or other evidence in 5 the case. They are not themselves evidence or proof of any facts. If they do not correctly 6 reflect the facts or figures shown by the evidence in the case, you should disregard these 7 charts and summaries and determine the facts from the underlying evidence. 8 9 Comment This instruction applies only where the charts and summaries are not received into

10 evidence and are used for demonstrative purposes. See JURY INSTRUCTIONS COMMITTEE OF 11 THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES, § 3.10A (2004). 12 13 14 15 GIVEN AS REQUESTED: ______________ 16 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 17 WITHDRAWN: ______________________ 18 19 20 21 22 23 24 25 26 27 28 26
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 23 2.13 CHARTS AND SUMMARIES IN EVIDENCE (As applicable) Certain charts and summaries [may be] [have been] received into evidence to illustrate

4 information brought out in the trial. Charts and summaries are only as good as the 5 underlying evidence that supports them. You should, therefore, give them only such weight 6 as you think the underlying evidence deserves. 7 8 Comment See United States v. Johnson, 594 F.2d 1253, 1254-55 (9th Cir.1979) (error to permit

9 the introduction of a summary of evidence without the establishment of a foundation for the 10 evidence). See also Fed. R. Evid. 1006. See also JURY INSTRUCTIONS COMMITTEE OF THE 11 NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES, § 3.10A(1) (2004). This 12 instruction may be unnecessary if there is no dispute as to the accuracy of the chart or 13 summary. 14 15 GIVEN AS REQUESTED: ______________ 16 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 17 WITHDRAWN: ______________________ 18 19 20 21 22 23 24 25 26 27 28 27
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 24 3.2 COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may

4 send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more 5 members of the jury. No member of the jury should ever attempt to communicate with me 6 except by a signed writing; I will communicate with any member of the jury on anything 7 concerning the case only in writing, or here in open court. If you send out a question, I will 8 consult with the parties before answering it, which may take some time. You may continue 9 your deliberations while waiting for the answer to any question. Remember that you are not 10 to tell anyone--including me--how the jury stands, numerically or otherwise, until after you 11 have reached a unanimous verdict or have been discharged. Do not disclose any vote count 12 in any note to the court. 13 14 15 GIVEN AS REQUESTED: ______________ 16 GIVEN AS MODIFIED: ________________ REFUSED: __________________________ 17 WITHDRAWN: ______________________ 18 19 20 21 22 23 24 25 26 27 28 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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JOINT PROPOSED JURY INSTRUCTION NO. 25 3.3 RETURN OF VERDICT A verdict form has been prepared for you. [Any explanation of the verdict form may

4 be given at this time.] After you have reached unanimous agreement on a verdict, your 5 presiding juror will fill in the form that has been given to you, sign and date it, and advise the 6 court that you are ready to return to the courtroom. 7 8 Comment The judge may also wish to explain to the jury the particular form of verdict being

9 used and just how to "advise the court" of a verdict. 10 11 12 13 14 GIVEN AS REQUESTED: ______________ 15 GIVEN AS MODIFIED: ________________
REFUSED: __________________________

16 WITHDRAWN: ______________________ 17 18 19 20 21 22 23 24 25 26 27 28 29
Case 2:04-cv-00429-MHM Document 131 Filed 06/08/2007 Page 31 of 32 _______________________________________ UNITED STATES DISTRICT COURT JUDGE

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