United States District Court, N.D. California, San Jose Division
FINAL JURY INSTRUCTIONS
H. KOH United States District Judge
IS SO ORDERED.
DUTY OF JURY
of the Jury: Now that you have heard all of the evidence, it
is my duty to instruct you on the law that applies to this
you has received a copy of these instructions that you may
take with you to the jury room to consult during your
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. And 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 to do so.
do not read into these instructions or anything that I may
say or do or have said or done that I have an opinion
regarding the evidence or what your verdict should be.
CORPORATIONS AND PLAINTIFFS IN PRO PER
parties are equal before the law and a plaintiff in pro per
(a plaintiff without the representation of a professional
attorney) and a corporation are entitled to the same fair and
conscientious consideration by you as any party.
BURDEN OF PROOF-PREPONDERANCE OF THE EVIDENCE
party has the burden of proof on any claim by a preponderance
of the evidence, it means you must be persuaded by the
evidence that the claim is more probably true than not true.
should base your decision on all of the evidence, regardless
of which party presented it. Source: Ninth Circuit Model
Civil Jury Instructions - 1.3 (2007 ed.).
WHAT IS EVIDENCE
evidence you are to consider in deciding what the facts are
(1) the sworn testimony of any witness;
(2) the exhibits which are received in evidence;
(3) any facts to which the parties have agreed; and
(4) any facts that I may instruct you to accept as proved.
WHAT IS NOT EVIDENCE
reaching your verdict, you may consider only the testimony
and exhibits received into evidence. 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 Mr. Kelly, Mr. van der Heide,
or by Ms. Van when she is not testifying as a witness, are
not evidence. What they said in their opening statements, may
say in closing arguments, and said 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
parties have stated them, your memory of them controls.
(2) Questions and objections by Mr. Kelly, Mr. van der Heide,
or Ms. Van are not evidence. They have a right 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 is excluded or stricken, or that you have
been instructed to disregard, is not evidence and must not be
(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.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
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. 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.
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.
CREDIBILITY OF WITNESSES
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
considering the testimony of any witness, you may take into
(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
(6) the reasonableness of the witness’s testimony in
light of all the evidence; and
(7) any other factors that bear on believability.
a witness may say something that is not consistent with
something else he or she said. Sometimes different witnesses
will give different versions of what happened. People often
forget things or make mistakes in what they remember. Also,
two people may see the same event but remember it
differently. You may consider these differences, but do not
decide that testimony is untrue just because it differs from
if you decide that a witness has deliberately testified
untruthfully about something important, you may choose not to
believe anything that witness said. On the other hand, if you
think the witness testified untruthfully about some things
but told the truth about others, you may accept the part you
think is true and ignore the rest.
weight of the evidence as to a fact does not necessarily
depend on the number of witnesses who testify. What is
important is how believable the witnesses were, and how much
weight you think their testimony deserves.
USE OF ...