United States District Court, E.D. California
ROBERT E. LEVY, Plaintiff,
COUNTY OF ALPINE, et al., Defendants.
ORDER RE: FIRST PROPOSED FINAL JURY INSTRUCTIONS AND
H. WHALEY Senior United States District Judge.
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.
SO ORDERED. The District Court Executive is directed to enter
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
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.
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.
following my instructions, you must follow all of them and
not single out some and ignore others; they are all
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.
should base your decision on all of the evidence, regardless
of which party presented it.
evidence from which you are to decide what the facts are
sworn testimony of any witness, including those who testified
through deposition and appeared in person;
exhibits that have been received into evidence; and
facts to which the lawyers have agreed.
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:
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.
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.
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.
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.
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.
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.
parties have agreed to certain facts that have been read to
you. You hould therefore treat these facts as having been
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