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Levy v. County of Alpine

United States District Court, E.D. California

April 14, 2017

ROBERT E. LEVY, Plaintiff,
v.
COUNTY OF ALPINE, et al., Defendants.

          ORDER RE: FIRST PROPOSED FINAL JURY INSTRUCTIONS AND VERDICT FORM

          ROBERT H. WHALEY Senior United States District Judge.

         The Court has received and reviewed the parties' objections and proposed revisions to the Court's previously proposed jury instructions, ECF Nos. 131 & 134. In response, the Court herein provides its first proposed final jury instructions. Attached are the Court's final jury instructions as well as the Court's verdict form. See Attachments A & B. Any objections will be address the morning of trial, April 17, 2017, at 8:00a.m.

         IT IS SO ORDERED. The District Court Executive is directed to enter this Order.

         Attachment A

         FINAL JURY INSTRUCTIONS

         JURY INSTRUCTIONS

         INSTRUCTION NO. 1

         Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case. Each of you has received a copy of these instructions that you may take with you to the jury room to consult during your deliberations.

         You must not infer from these instructions or from anything I may have said or done as indicating that I have an opinion regarding the evidence or what your verdict should be.

         It is 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.

         In following my instructions, you must follow all of them and not single out some and ignore others; they are all important.

         INSTRUCTION NO. 2

         When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true.

         You should base your decision on all of the evidence, regardless of which party presented it.

         INSTRUCTION NO. 3

         The evidence from which you are to decide what the facts are consists of:

         (1) The sworn testimony of any witness, including those who testified through deposition and appeared in person;

         (2) The exhibits that have been received into evidence; and

         (3) Any facts to which the lawyers have agreed.

         INSTRUCTION NO. 4

         In 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 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 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.

         INSTRUCTION NO. 5

         Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the 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.

         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.

         INSTRUCTION NO. 6

         The parties have agreed to certain facts that have been read to you. You hould therefore treat these facts as having been proved.

         INSTRUCTION NO. 7

         In 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's memory;
(3) the witness's manner while testifying;
(4) the witness's interest in the outcome of the case and any ...

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