United States District Court, N.D. California
COURT'S SECOND AMENDED JURY INSTRUCTIONS
C. SPERO DIIEF MAGISTRATE JUDGE
Court intends to give the attached instructions to the jury
after closing arguments.
IS SO ORDERED.
INSTRUCTION NO. 1 DUTY OF JURY
of the Jury: Now that you have heard all of the evidence and
the arguments of the attorneys, it is my duty to instruct you
on the law that applies to this case.
you has received a copy of these instructions that you may
take with you to consult during your deliberations.
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.
INSTRUCTION NO. 2 DUTY TO DELIBERATE
you begin your deliberations, elect one member of the jury as
your presiding juror. The presiding juror will preside over
the deliberations and serve as the spokesperson for the jury
shall diligently strive to reach agreement with all of the
other jurors if you can do so. Your verdict must be
you must decide the case for yourself, but you should do so
only after you have considered all of the evidence, discussed
it fully with the other jurors, and listened to their views.
important that you attempt to reach a unanimous verdict but,
of course, only if each of you can do so after having made
your own conscientious decision. Do not be unwilling to
change your opinion if the discussion persuades you that you
should. But do not come to a decision simply because other
jurors think it is right, or change an honest belief about
the weight and effect of the evidence simply to reach a
INSTRUCTION NO. 3 CONSIDERATION OF EVIDENCE-CONDUCT OF THE
you must base your verdict only on the evidence received in
the case and on these instructions, I remind you that you
must not be exposed to any other information about the case
or to the issues it involves. Except for discussing the case
with your fellow jurors during your deliberations:
Do not communicate with anyone in any way and do not let
anyone else communicate with you in any way about the merits
of the case or anything to do with it. This includes
discussing the case in person, in writing, by phone or
electronic means, via email, via text messaging, or any
internet chat room, blog, website or application, including
but not limited to Facebook, YouTube, Twitter, Instagram,
LinkedIn, Snapchat, or any other forms of social media. This
applies to communicating with your family members, your
employer, the media or press, and the people involved in the
trial. If you are asked or approached in any way about your
jury service or anything about this case, you must respond
that you have been ordered not to discuss the matter and to
report the contact to the court.
Do not read, watch, or listen to any news or media accounts
or commentary about the case or anything to do with it,
although I have no information that there will be news
reports about this case; do not do any research, such as
consulting dictionaries, searching the Internet, or using
other reference materials; and do not make any investigation
or in any other way try to learn about the case on your own.
Do not visit or view any place discussed in this case, and do
not use Internet programs or other devices to search for or
view any place discussed during the trial. Also, do not do
any research about this case, the law, or the people
involved- including the parties, the witnesses or the
lawyers-until you have been excused as jurors. If you happen
to read or hear anything touching on this case in the media,
turn away and report it to me as soon as possible.
rules protect each party's right to have this case
decided only on evidence that has been presented here in
court. Witnesses here in court take an oath to tell the
truth, and the accuracy of their testimony is tested through
the trial process. If you do any research or investigation
outside the courtroom, or gain any information through
improper communications, then your verdict may be influenced
by inaccurate, incomplete or misleading information that has
not been tested by the trial process. Each of the parties is
entitled to a fair trial by an impartial jury, and if you
decide the case based on information not presented in court,
you will have denied the parties a fair trial. Remember, you
have taken an oath to follow the rules, and it is very
important that you follow these rules.
who violates these restrictions jeopardizes the fairness of
these proceedings, and a mistrial could result that would
require the entire trial process to start over. If any juror
is exposed to any outside information, please notify the
INSTRUCTION NO. 4 COMMUNICATION WITH THE COURT
becomes necessary during your deliberations to communicate
with me, you may send a note through the courtroom deputy,
Ms. Hom, signed by any one or more of you. No member of the
jury should ever attempt to communicate with me except by a
signed writing. I will not communicate with any member of the
jury on anything concerning the case except in writing or
here in open court. If you send out a question, I will
consult with the lawyers before answering it, which may take
some time. You may continue your deliberations while waiting
for the answer to any question. Remember that you are not to
tell anyone-including the court-how the jury stands, whether
in terms of vote count or otherwise, until after you have
reached a unanimous verdict or have been discharged.
INSTRUCTION NO. 5 CLAIMS AND DEFENSES
you follow the evidence, I will give you a brief summary of
the positions of the parties:
Christopher Cardinal asserts the following claims against
defendant John Lupo:
Breach of contract; and
Violation of the Computer Fraud and Abuse Act.
Christopher Cardinal has the burden of proving these claims.
John Lupo denies those claims. John Lupo asserts a
counterclaim against Christopher Cardinal for breach of
contract. John Lupo has the burden of proving that
Cardinal denies the counterclaim of John Lupo.
INSTRUCTION NO. 6 BURDEN OF PROOF-PREPONDERANCE OF THE
party has the burden of proving any fact, claim, or
affirmative defense by a preponderance of the evidence, it
means you must be persuaded by the evidence that the fact,
claim, or affirmative defense is more probably true than not
true. This standard applies unless you are specifically
instructed that a different standard of proof applies to a
particular fact, claim, or affirmative defense.
should base your decision on all of the evidence, regardless
of which party presented it.
INSTRUCTION NO. 7 BURDEN OF PROOF-CLEAR AND CONVICING
facts must be proved by clear and convincing evidence, which
is a higher burden of proof. This means the party must
persuade you that it is highly probable that the fact is
true. I will tell you specifically which facts must be proved
by clear and convincing evidence.
INSTRUCTION NO. 8 EVIDENCE:
evidence you are to consider in deciding what the facts are
sworn testimony of any witness; and
exhibits that are admitted into evidence.
INSTRUCTION NO. 9 EVIDENCE:
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:
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
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 was excluded or stricken, or that you were
instructed to disregard, is not evidence and must not be
Anything you may have seen or heard when the court was not in
session is not evidence.
to decide the case solely on the evidence received at the
INSTRUCTION NO. 10 EVIDENCE:
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.
INSTRUCTION NO. 11 EVIDENCE:
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, if
(5) the witness's bias or prejudice, if any;
(6) whether other evidence contradicted the witness's
(7) the reasonableness of the witness's testimony in
light of all the evidence; and
(8) 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.
INSTRUCTION NO. 12 EVIDENCE:
or not you took notes during the trial, you should rely on
your own memory of the evidence. Notes are only to assist
your memory. You should not be overly influenced by your
notes or those of other jurors.
INSTRUCTION NO. 13 EVIDENCE:
Having Power to Produce Better Evidence
consider the ability of each party to provide evidence. If a
party provided weaker evidence when it could have provided
stronger evidence, you may distrust the weaker evidence.
INSTRUCTION NO. 14 EVIDENCE:
Suppression of Evidence
consider whether one party intentionally concealed or
destroyed evidence. If you decide that a party did so, you
may decide that the evidence would have been unfavorable to
INSTRUCTION NO. 15 EVIDENCE:
to Explain or Deny Evidence
party failed to explain or deny evidence against it when it
could reasonably be expected to have done so based on what it
knew, you may consider its failure to explain or deny in
evaluating that evidence.
up to you to decide the meaning and importance of the failure
to explain or deny evidence against the party.
INSTRUCTION NO. 16 EVIDENCE: