United States District Court, N.D. California
FINAL CHARGE TO THE JURY AND SPECIAL VERDICT
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
of the jury, now that you have heard all the evidence and
arguments by counsel, it is my duty to instruct you on the
law that applies to this case. A copy of these instructions
will be available in the jury room for you to consult as
your duty to find the facts from all the evidence in the
case. To those facts, you will apply the law as I give it to
you. You must follow the law as I give it to you whether you
agree with it or not. You must not be influenced by any
personal likes or dislikes, opinions, prejudices or sympathy.
That means that you must decide the case solely on the
evidence before you. You will recall that you took an oath
promising to do so at the beginning of the case. In following
my instructions, you must follow all of them and not single
out some and ignore others; they are all equally important.
You must not read into these instructions or into anything
the Court may have said or done as suggesting what verdict
you should return - that is a matter entirely up to you.
evidence from which you are to decide what the facts are
1. The sworn testimony of witnesses, on both direct and
cross-examination, regardless of who called the witness;
2. The exhibits which have been received into evidence;
3. The sworn testimony of witnesses in depositions, read into
4. Any facts to which the lawyers have stipulated. You must
treat any stipulated facts as having been conclusively
may be direct or circumstantial. Direct evidence is direct
proof of a fact, such as testimony by a witness about what
that witness personally saw or heard or did. Circumstantial
evidence is proof of one or more facts from which you could
find another fact. 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 explain 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. You should consider both
kinds of evidence. The law makes no distinction between the
weight to be given to either direct or circumstantial
evidence. It is for you to decide how much weight to give to
any evidence. You should base your decision on all of the
evidence regardless of which party presented it.
reaching your verdict, you may consider only the types of
evidence I have described. Certain things are not evidence,
and you may not consider them in deciding what the facts are.
I will list them for you:
1. Arguments and statements by lawyers are not evidence. The
lawyers are not witnesses. What they have said in their
opening statements, 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
2. A suggestion in a question by counsel or the Court is not
evidence unless it is adopted by the answer. A question by
itself is not evidence. Consider it only to the extent it is
adopted by the answer.
3. Objections by lawyers are not evidence. Lawyers have a
duty to their clients to consider objecting when they believe
a question is improper under the rules of evidence. You
should not be influenced by any question, objection or the
Court’s ruling on it.
4. Testimony or exhibits that have been excluded or stricken,
or that you have been instructed to disregard, are not
evidence and must not be considered. In addition, some
testimony and exhibits have been received only for a limited
purpose; where I have given a limiting instruction, you must
5. 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.
deciding the facts in this case, you may have to decide which
testimony to believe and which testimony not to believe. You
may believe everything a witness says, or part of it or none
of it. 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’ memory;
3. The witness’ manner while testifying;
4. The witness’ interest in the outcome of the case and
any bias or prejudice;
5. Whether other evidence contradicted the witness’
6. The reasonableness of the witness’ testimony in
light of all the evidence; and
7. Any other factors that bear on believability.
weight of the evidence as to a fact does not necessarily
depend on the number of witnesses who testify. Nor does it
depend on which side called witnesses or produced evidence.
You should base your decision on all of the evidence
regardless of which party presented it.
not required to decide any issue according to the testimony
of a number of witnesses, which does not convince you, as
against the testimony of a smaller number or other evidence,
which is more convincing to you. The testimony of one witness
worthy of belief is sufficient to prove any fact. This does
not mean that you are free to disregard the testimony of any
witness merely from caprice or prejudice, or from a desire to
favor either side. It does mean that you must not decide
anything by simply counting the number of witnesses who have
testified on the opposing sides. The test is not the number
of witnesses but the convincing force of the evidence.
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 that is inconsistent with the witness’
present testimony. If you believe any witness has been
impeached and thus discredited, you may give the testimony of
that witness such credibility, if any, you think it deserves.
in a witness’ testimony or between a witness’
testimony and that of other witnesses do not necessarily mean
that such witness should be discredited. Inability to recall
and innocent misrecollection are common. Two persons
witnessing an incident or a transaction sometimes will see or
hear it differently. Whether a discrepancy pertains to an
important matter or only to something trivial should be
considered by you.
a witness willfully false in one part of his or her testimony
is to be distrusted in others. You may reject the entire
testimony of a witness who willfully has testified falsely on
a material point, unless, from all the evidence, you believe