Opinion
18 Civ. 1259 (JPC)
10-21-2021
ELVIS SANCHEZ, Plaintiff, v. CAPTAIN WHITE, CAPTAIN MONROE, and CORRECTION OFFICER DAIF, Defendants.
JURY INSTRUCTION
Introduction ..................................................................................................................................... 2
I. General Instructions ................................................................................................................ 3
A. Role Of The Court .............................................................................................................. 3
B. Role Of The Jury ................................................................................................................. 4
C. Role Of Counsel / Objections And Sidebars ....................................................................... 4
D. Sympathy Or Bias ............................................................................................................... 5
E. Burden Of Proof .................................................................................................................. 5
F. What Is And Is Not Evidence ............................................................................................. 6
G. Direct And Circumstantial Evidence .................................................................................. 8
H. Witness Credibility ............................................................................................................. 9
I. All Available Evidence Need Not Be Produced ............................................................... 11
J. Judicial Notice .................................................................................................................. 11
K. Multiple Defendants .......................................................................................................... 11
II. Substantive Instructions ........................................................................................................ 11
A. Overview Of The Plaintiff's Claims ................................................................................. 11
B. Elements ............................................................................................................................ 12
1. Deprivation Of A Right: Failure To Protect ............................................................. 13
2. Proximate Causation .................................................................................................. 15
III. Damages ................................................................................................................................ 16
A. Damages Generally ........................................................................................................... 16
B. Compensatory and Nominal Damages .............................................................................. 17
IV. Final Instructions ................................................................................................................... 19
A. Right To Hear Testimony And See Exhibits / Communications With The Court ............ 19
B. Notes ................................................................................................................................. 20
C. Duty To Deliberate / Unanimous Verdict ......................................................................... 20
D. Selecting A Foreperson And The Foreperson's Duties .................................................... 21
E. Verdict Form And Return Of The Verdict ........................................................................ 21
F. Oath ................................................................................................................................... 22
G. Exceptions ......................................................................................................................... 22
Introduction
Members of the jury, you have now heard all of the evidence as to the claim by the plaintiff, Elvis Sanchez, against the defendants Captain Tamika White, Captain Latonia Monroe, and Correction Officer Roy Daif. We are near the point where you will undertake your vital function of deliberating as jurors. I am now going to instruct you about the law that governs this case.
There are three parts to these instructions:
First, I will provide you with some general instructions about your role and about how you are to decide the facts of the case. These instructions would apply to any trial.
Second, I will give you more specific instructions about the legal rules applicable to this particular case. I will describe the elements of the plaintiff's claim and the law of damages as it applies in this case.
Third, I will give you instructions on the general rules governing your deliberations.
I will read most, if not all, of these instructions to you. It is not my favorite way to communicate with a jury, but there is a crucial need for precision in what I tell you. The law is stated and expressed in words, and those words are very carefully chosen. So, when I tell you the law, it is critical that I use exactly the right words.
I have given each of you a copy of this charge. If you find it easier to listen and understand while you are following along with me, please do so. If you prefer, you can just listen and not follow along. Either way, you will have a copy of these instructions with you in the jury room, so you can refer to them if you want to re-read any portion to facilitate your deliberations. Because you will have a copy in the jury room, do not worry if you miss a word or two. For now, listen carefully and try to concentrate on the substance of what I am saying. I ask for your patience, cooperation, and attention.
You will also have with you in the jury room a verdict form on which to record your verdict. That form will list the questions you should consider, with instructions as to the order that you should consider them.
I. General Instructions
A. Role Of The Court
I will now instruct you on the law. It is my duty to do that, just as it has been my duty to preside over the trial and decide what testimony and evidence is relevant under the law for your consideration. It is your duty to accept my instructions on the law and to apply them to the facts as you determine them.
On these legal matters, you must take the law as I give it to you. You must not substitute your own notions or opinions of what the law is or ought to be. You should not be concerned about the wisdom of any rule that I state. Regardless of any opinion that you may have as to what the law may be-or should be-it would violate your sworn duty to base a verdict upon any other view of the law than that which I give you.
If any attorney has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You should not single out any particular instruction as alone stating the law, and you should consider my instructions as a whole when you retire to deliberate in the jury room.
You are not to infer from any of my questions or any of my rulings on objections or anything else I have done during this trial that I have any view as to the credibility of the witnesses or how you should decide the case. Any questions I have asked were designed to make sure that the testimony was clear and to avoid confusion. I have no opinion as to the verdict you should render in this case.
B. Role Of The Jury
As members of the jury, you are the sole and exclusive judges of the facts. You determine the credibility of the witnesses. You resolve any conflicts there may be in the testimony. You draw whatever reasonable inferences you deem appropriate from the facts as you have found them. And you determine the weight to give the various pieces of the evidence.
Although you are encouraged to use all of your life experiences in analyzing testimony and reaching a fair verdict, you may not communicate any personal or professional expertise you might have or other facts not in evidence to the other jurors during deliberations. You must base your discussions and decisions solely on the evidence presented to you during the trial. You may not consider or speculate on matters not in evidence.
C. Role Of Counsel / Objections And Sidebars
It is the duty of the attorneys to object when the other side offers testimony or other evidence that the attorney believes is not properly admissible. Therefore, you should draw no inference from the fact that an attorney objected to any evidence. Nor should you draw any inference from the fact that I might have sustained or overruled an objection.
At times during this trial, the lawyers and I had conferences at sidebar, out of your hearing. These conferences involved procedural and other matters. None of the events relating to these conferences should affect your deliberations at all.
Similarly, the personalities and the conduct of counsel in the courtroom are not in any way at issue. If you formed reactions of any kind to any of the lawyers, favorable or unfavorable, or whether you approved or disapproved of their behavior as advocates, those reactions should not affect your deliberations.
D. Sympathy Or Bias
You are required to evaluate the evidence calmly and objectively, without prejudice or sympathy. You must be completely fair and impartial. Your verdict must be based solely on the evidence developed at this trial, or the lack of evidence. The parties in this case are entitled to a trial free from prejudice and bias for or against either side. Our judicial system only works if you reach your verdict through a fair and impartial consideration of the evidence.
In deciding the facts of this case, it would be improper for you to consider any personal feelings you may have about any party or any witness, including about an individual's race, national origin, sex, age, or any other such irrelevant factor. All parties-the plaintiff and the defendants-are entitled to the same fair trial and stand equal before the law.
E. Burden Of Proof
The plaintiff, Elvis Sanchez, has the burden of proving all the elements of his claim by a preponderance of the evidence. In a few minutes, I will explain the elements of his claim.
But first, what does a “preponderance of the evidence” mean? To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not the number of witnesses or documents. In determining whether a claim has been proven by a preponderance of the evidence, you should consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.
If, after considering all of the testimony, you are satisfied that the plaintiff has carried his burden on each essential element of his claim, then you must find in his favor. If, after such consideration, you find that the evidence produced by the plaintiff is outweighed by the evidence against his position, or that the credible evidence on a given issue is evenly divided between the parties-that it is as equally probable that one side is right as it is that the other side is right-then you must decide that issue against the plaintiff.
That is because when a party has the burden of proof in a civil case, that party must do more than simply produce evidence that is equal to the evidence on the other side. In order to satisfy its burden, the party must prove each element of its claim by a preponderance of the evidence. That said, the party with the burden of proof need prove no more than a preponderance. So, if you find that the scales tip, however slightly, in favor of the plaintiff-in other words, that what he claims is more likely true than not, even by just a little-then that element will have been proven by a preponderance of the evidence.
F. What Is And Is Not Evidence
Throughout these instructions, you will hear me refer to “evidence.” This term has a special meaning in the context of trials. And I want to take a moment to describe to you what is and is not evidence in this case. As I have said, you may rely only on the evidence in your deliberations. The evidence in this case is the sworn testimony of the witnesses, the exhibits that were provided for your consideration, and any stipulations entered into by the parties. On the other hand, certain things are not evidence.
First, I will describe a list of examples of things that are not evidence:
1. A question by a lawyer is not to be considered by you as evidence. It is the witnesses' answers to those questions that are evidence. At times, a lawyer may have incorporated into a question a statement which assumed certain facts to be true, and asked the witness if the statement was true. If the witness denied the truth of a statement, and if there is no direct
evidence in the record proving that assumed fact to be true, then you may not consider it to be true simply because it was contained in the lawyer's question.
2. Similarly, arguments by the lawyers are not evidence, because the lawyers are not witnesses. What the lawyers have said in their opening statements and closing arguments was intended to help you understand the evidence and to reach your verdict. If your recollection of the facts differs from the lawyers' statements, it is your recollection that controls.
3. Statements that I may have made concerning the evidence do not constitute evidence, except for certain definitions of medical terms that I took judicial notice of. I will instruct you on the concept of judicial notice shortly.
4. Testimony that has been stricken or excluded is not evidence, and it may not be considered by you in rendering your verdict.
5. Anything you may have seen or heard outside the courtroom is not evidence.
Now, I will discuss what is evidence. As I have said, evidence may come in several forms:
1. The sworn testimony of witnesses, regardless of who called them, is evidence. This is true of the witnesses' answers on both direct examination and cross examination, as well as any re-direct and re-cross examination.
2. The exhibits that were admitted during the trial are evidence.
3. Any facts that the parties have stipulated to are evidence.
G. Direct And Circumstantial Evidence
Generally, there are two types of evidence that you may consider in reaching your verdict.
One type of evidence is direct evidence. Direct evidence is testimony by a witness about something he or she knows by virtue of his or her own senses-something he or she has seen, felt, touched, or heard. For example, if a witness testified that on a particular day, she was in her office and could see that it was raining all day, that would be direct evidence about the weather on that day.
The other type of evidence is circumstantial evidence. Circumstantial evidence is evidence from which you may infer the existence of certain facts. For example, suppose that a witness testified that her office does not have a window. But the witness testified that, on the day in question, she saw numerous people coming into the office with wet raincoats and carrying dripping umbrellas. That testimony about the wet raincoats and dripping umbrellas is circumstantial evidence that it was raining that day. So, even though you have no direct evidence regarding the weather, you have circumstantial evidence that it was raining that day.
With circumstantial evidence, you must be careful to come to a reasonable inference by taking into account all of the evidence. For example, if you live in an apartment building in New York City and wake up in the morning and see that the sidewalk is wet, but the street is dry, it may not be reasonable to infer that it rained the night before. Rather, a more reasonable inference may be that the apartment building staff had hosed down the sidewalk.
That is all there is to circumstantial evidence. You infer on the basis of reason and experience and common sense from one established fact the existence or non-existence of some other fact. It is important you understand that where circumstantial evidence is presented, it is of no less value than direct evidence, for it is a general rule that the law makes no distinction between direct evidence and circumstantial evidence.
H. Witness Credibility
You have had the opportunity to observe the witnesses who testified. It is now your duty to decide how believable each witness was in his or her testimony. You are the sole judge of the credibility of each witness and of the importance of his or her testimony.
In making these judgments, you should carefully scrutinize the testimony of each witness, the circumstances under which each witness testified, the impression the witness made when testifying, and any other matters in evidence which may help you decide the truth and importance of each witness's testimony.
How do you determine where the truth lies? You watched each witness testify. Everything a witness said or did on the witness stand counts in your determination. How did the witness impress you? What was the witness's manner of testifying? Did he or she appear to be frank, forthright, and candid? Or was the witness evasive and edgy, as if hiding something? How did the witness appear? What was the witness's demeanor while testifying? In assessing credibility, how a person says something may be just as important as what that person said.
You should use all the tests for truthfulness that you would use in determining matters of importance to you in your everyday life. You should consider any bias or hostility the witness may have shown for or against any party as well as any interest the witness has in the outcome of the case. You should consider whether the witness had an opportunity to see, hear, and know the things about which he or she testified. You should evaluate the accuracy of his or her memory, his or her candor or lack of candor, and the reasonableness and probability of his or her testimony. You should consider whether the witness's testimony was contradicted or supported by other evidence, by what the witness said or did on a prior occasion, or by the testimony of other witnesses or by other evidence.
In other words, what you must try to do in deciding credibility is to size a witness up in light of his or her demeanor, the explanations given, and all of the other evidence in the case. Always remember that you should use your common sense, your good judgment, and your everyday experiences in life to make your credibility determinations.
If you find that any witness has willfully testified falsely as to an important matter, the law permits you to disregard the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. However, you are not required to consider all of that witness's testimony as totally “unbelievable.” You may accept so much of the witness's testimony as you deem true and disregard parts of it that you feel is false. A witness may have been mistaken or testified falsely in one part of his or her testimony, while having been accurate and truthful in other parts.
On some occasions during this trial, witnesses were asked to explain an apparent inconsistency between testimony offered at this trial and statements previously made by the witness or during the witness's deposition. It is for you to determine whether a prior statement was inconsistent, and if so, how much (if any) weight to give to an inconsistent statement in assessing the witness's credibility at trial. You may use this evidence only to help you weigh the credibility of the witness, but you may not use it as proof of a party's liability.
By the processes which I have just described, you, as the sole judges of the facts, must decide which of the witnesses you will believe, what portion of each witness's testimony you accept, and what weight you will give to it.
I. All Available Evidence Need Not Be Produced
The law does not require any party to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters in issue at this trial. Nor does the law require any party to produce as exhibits all papers and tangibles mentioned in this case.
J. Judicial Notice
I have taken judicial notice of certain facts which are not subject to reasonable dispute. In particular, I have taken judicial notice of the definitions of certain medical terms that were contained in some records that were admitted as evidence. I have accepted these facts to be true, even though no direct evidence has been introduced proving them to be true. You are required to accept these facts as true in reaching your verdict.
K. Multiple Defendants
Although the defendants in this trial are being represented by the same counsel, you are not to treat them as one person. Each defendant is entitled to your separate consideration. The question of whether liability has been proven is personal to each defendant and must be decided by you as to each defendant individually.
II. Substantive Instructions
With these general instructions in mind, let us turn to the substantive law to be applied in this case.
A. Overview Of The Plaintiff's Claims
The plaintiff, Elvis Sanchez, brings his claim against the defendants in this case under a federal statute entitled 42 U.S.C. § 1983, or Section 1983 for short. Section 1983 provides a remedy for individuals who have been deprived of federal rights by persons acting under color of state law. The statute states:
Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The plaintiff seeks to hold the defendants liable for violating his constitutional rights by acting with deliberate indifference to his health and safety on February 25, 2015, in connection with an attack by other inmates at the jail at Rikers Island on that date, which resulted in physical injuries to the plaintiff. Meanwhile, the defendants claim they committed no wrongdoing and that, unbeknownst to them, the plaintiff was involved in an altercation with unknown inmates, after which he was promptly brought for medical treatment. The defendants also contest the nature and extent of any of the plaintiff's injuries.
In reaching a verdict, I remind you that the plaintiff bears the burden of proving each essential element of his claim by a preponderance of the evidence. I previously instructed you on the meaning of preponderance of the evidence.
B. Elements
To establish a claim under Section 1983, plaintiff must establish, by a preponderance of the evidence, each of the following three elements:
First, the plaintiff must prove that the defendant you are considering was acting under color of state law at the time of the incident. This element is not contested.
Second, the plaintiff must prove that the conduct of the defendant you are considering deprived him of a right secured by the Constitution of the United States, as I will explain it to you shortly.
Third, the plaintiff must prove that that acts of the defendant you are considering were the proximate cause of the injuries that the plaintiff sustained.
With respect to each defendant, if you find that any of these essential elements of the plaintiff's claim have not been proven by a preponderance of the evidence, you must return a verdict in favor of that defendant.
On your verdict sheet, you will see that you have to answer a set of questions, including questions concerning whether those two contested elements-elements two and three-have been satisfied for each defendant. I will now explain those two elements in greater detail.
1. Deprivation Of A Right: Failure To Protect
The second element that the plaintiff must prove by a preponderance of the evidence is that the defendant you are considering deprived the plaintiff of a federal right. The plaintiff claims that the defendants failed to protect him by not preventing an attack against him by other inmates after, he claims, they knew that he faced a risk of violence at the jail.
The Constitution requires prison officials to take reasonable measures to protect the safety of the inmates. That extends to protecting inmates from violence at the hands of other inmates. However, not every injury sustained by one inmate at the hands of another inmate imposes constitutional liability on a correction officer.
To establish a constitutional violation based on an individual defendant's failure to protect, the plaintiff must prove that defendant acted with deliberate indifference. In this context, a showing of deliberate indifference requires two things: (1) the plaintiff was incarcerated under conditions posing a substantial risk of serious harm and (2) the defendant intentionally or recklessly failed to act with reasonable care to mitigate the risk of the conditions even though that defendant knew, or should have known, that the conditions posed an excessive risk to health and safety. An act is intentional if it is done knowingly. That is, if it is done voluntarily and deliberately and not because of mistake, accident, negligence, or any other innocent reason. An act is reckless if it is done with a conscious disregard of its known probable consequences. The evidence presented by the plaintiff must show, by a preponderance of the evidence, that the defendant you are considering possessed information with enough detail, either through facts known to the defendant or inferences that could be drawn from those facts, to put that defendant on notice of a substantial risk of serious harm.
In determining whether the defendant you are considering acted with the requisite intent or recklessness, you should remember that while witnesses may see and hear and so be able to give direct evidence of what a person does or fails to do, there is no way of looking into a person's mind. Therefore, you have to depend on what was done and what people involved said was in their minds and your belief or disbelief with respect to those facts. Evidence that a risk was obvious or otherwise must have been known to the defendant you are considering may be sufficient for you to conclude that the defendant was actually aware of the risk.
During this trial, you heard testimony about a number of Department of Correction employees who were working at Rikers Island while the plaintiff was incarcerated there in 2014 and 2015, including certain correction officers and captains. The only individuals who are in the case before you, and on whose conduct you may rest a determination of liability, are the three defendants I have named: Captain White, Captain Monroe, and Officer Daif. That is because the defendants can only be responsible for their own acts or omissions. They are not responsible for the acts and omissions of others. Evidence about what others did was offered to provide context for you to evaluate the plaintiff's claims.
I also note that neither the New York City Department of Correction nor the jail at Rikers Island is a defendant in this case. Nor is there any claim as to the sufficiency of any policies or procedures at Rikers Island.
During this trial, the plaintiff also testified about experiencing attacks at the hands of other inmates on occasions prior to February 25, 2015. In determining whether the defendants are liable, however, you may consider only their actions, or lack of actions, in connection with the attack that the plaintiff alleges occurred on February 25, 2015. Here too, evidence that pre-dated February 25, 2015 was offered for background and context, including as to any fears that the plaintiff may have had for his safety, and to provide information of the plaintiff's medical condition prior to February 25, 2015.
As I have stated, the question before you on this element is whether, on February 25, 2015, any of these three defendants deprived the plaintiff of a right secured to him by the United States Constitution.
2. Proximate Causation
The third and final element of the plaintiff's Section 1983 claim is proximate cause. The plaintiff must prove that the acts of the defendant you are considering were the proximate cause of the harm he sustained.
Proximate cause means that there must be a sufficient causal connection between the acts or omissions of a defendant and any injury or damage sustained by the plaintiff. An act or omission is a proximate cause if it was a substantial factor in bringing about or actually causing injury, that is, if the injury or damage was a reasonably foreseeable consequence of that defendant's act or omission. If any injury was a direct result or reasonably probable consequence of a defendant's act or omission, it was proximately caused by such act or omission. In other words, if a defendant's act or omission had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act or omission is a proximate cause.
In order to recover damages for any injury, the plaintiff must show by a preponderance of the evidence that such injury would not have occurred without the conduct of the defendant you are considering. If you find that the defendant has proven, by a preponderance of the evidence, that the plaintiff's injury would have occurred even in the absence of the alleged unlawful conduct of the defendant you are considering, you must find that that defendant did not proximately cause the plaintiff's injury.
A proximate cause need not always be the nearest cause either in time or in space. In addition, there may be more than one proximate cause of an injury or damage. Many factors or the conduct of two or more people may operate at the same time, either independently or together, to cause an injury.
The defendant is not liable if the plaintiff's injuries were the result of an independent cause that intervened between the defendant's conduct and the plaintiff's injury, and that produced injuries that were not reasonably foreseeable by the defendant whom you are considering.
III. Damages
A. Damages Generally
If, but only if, you conclude that the plaintiff has met his burden of proving liability as to any defendant-that is you answered “Yes” on the verdict form as to both questions for that defendant, which means the plaintiff has established all elements of his Section 1983 claim for that defendant, as I have explained them, by a preponderance of the evidence-then you must determine the damages to which the plaintiff is entitled. I will now instruct you on the law for measuring damages.
The fact that I am instructing you as to the proper measure of damages does not indicate any view of mine as to which party is entitled to your verdict in this case. It is exclusively your function to decide upon liability. Instructions as to the measure of damages are given for your guidance only in the event that you should find in favor of the plaintiff as to any or all of the defendants, in accordance with my other instructions.
If you do find that damages should be awarded, you should not take into consideration attorneys' fees or court costs, which will be decided by me. And if you make any award of damages, such award is not subject to federal income taxes and you should not consider such taxes in determining the amount of damages, if any.
B. Compensatory and Nominal Damages
If you find in favor of the plaintiff on his claim as to any of the defendants, then-with one exception I will discuss shortly-you must determine an amount that is fair compensation for his injuries. This type of damages is known as “compensatory damages.” You may award compensatory damages only for injuries that the plaintiff proved were caused by a defendant's wrongful conduct. The damages you award must be fair compensation-no more and no less- for the loss, if any, which resulted from the defendant's wrongful conduct. The purpose of these damages is to make the plaintiff whole-to put him in the same position that he would have been in had there been no violation of his rights. The purpose is not to punish the defendants.
Compensatory damages may include damages for the physical injury, pain and suffering, mental anguish, shock, and discomfort that the plaintiff sustained because of a defendant's conduct. In assessing compensatory damages, you may include an amount for pain, suffering, and emotional distress-past, present, and future-that you determine to be reasonable compensation in light of all the evidence in this case. Keep in mind that in order to recover damages for pain and suffering, the plaintiff must present credible evidence with respect to his suffering and corroboration that a defendant's impermissible conduct caused this suffering. To satisfy this requirement, the plaintiff does not need to provide evidence from a medical expert.
There is no exact standard for determining the precise amount of damages for pain and suffering. An award you make must be fair and reasonable in light of the evidence at trial. An award must not be based on speculation or sympathy. The law does not, however, require the plaintiff to prove the amount of his losses with mathematical precision, but only with as much definitiveness and accuracy as the circumstances permit.
In the event that you find that the plaintiff is entitled to damages, he may recover only once for any injuries. For example, if the plaintiff were to prevail on his claim against two defendants and establish that his injury for that claim was worth $100, you could not award him $200 in compensatory damages, representing $100 against each defendant. He is only entitled to be made whole, not to recover more than he lost.
If you find in favor of the plaintiff on any of his claims, but do not award compensatory damages, then you must award “nominal damages.” Nominal damages are awarded as recognition that the plaintiff's rights have been violated. If you find, after considering all the evidence presented and applying the law as I have instructed, that the plaintiff's rights were violated, in violation of Section 1983, but that the plaintiff has failed to prove by a preponderance of the evidence that he sustained any actual damages as a result of the violation, you must award the plaintiff nominal damages.
You may also award nominal damages, if, upon finding that some injury resulted from the deprivation of the plaintiff's rights, you find that you are unable to determine monetary damages except by engaging in pure speculation and guessing. You may not award both nominal and compensatory damages to the plaintiff for a violation of Section 1983. Either he experienced actual damages from the Section 1983 violation, in which case you must award compensatory damages, or else he did not experience actual damages, in which case you must award nominal damages.
Nominal damages may only be awarded for a token sum, not to exceed one dollar.
IV. Final Instructions
A. Right To Hear Testimony And See Exhibits / Communications With The Court
You are about to begin your deliberations. You will be able to view the exhibits that have been admitted into evidence on a large computer screen in that room. If you have trouble viewing any exhibit or exhibits on the computer monitor, please send out a note specifying which exhibit or exhibits you would like to see and we will provide you with printouts of that exhibit or exhibits.
If during your deliberations, you want any of the testimony read back to you, please send out a note specifying what you want to hear and we will bring you back to the courtroom to read it back for you. Please remember that it is not always easy to locate what you might want, so be as specific as you possibly can in requesting exhibits or portions of the testimony.
If you want any further explanation of the law as I have explained it to you, you may also request that from me. If there is any doubt or question about the meaning of any part of the instructions that I have given you during this trial, you should not hesitate to send me a note asking for clarification or for additional explanation.
It is very important that you not communicate with anyone outside the jury room about your deliberations or about anything concerning this case. The only exceptions to this rule are what I just mentioned. If it becomes necessary during your deliberations to communicate with me-to request exhibits or testimony, or to request clarification on the law-you should send a note to me, in writing, signed by your foreperson, and given to one of the Marshals or my deputy, Ms. Henrich. No member of the jury should ever attempt to communicate with me except by a signed writing, and I will never communicate with a member of the jury on any subject touching on the merits of the case other than in writing, or orally here in open court. If you send any notes to the Court, do not disclose anything about your deliberations. Specifically, do not disclose to anyone-not even to me-how the jury stands on the verdict, numerically or otherwise, until after you have reached the final unanimous verdict or have been discharged.
B.
Many of you have taken notes periodically throughout this trial. I want to emphasize to you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes that any of you may have made may not be given any greater weight or influence in determination of the case than the recollections or impressions of other jurors, whether from notes or memory, with respect to the evidence presented or what conclusions, if any, should be drawn from such evidence. Any difference between a juror's recollection and another juror's notes should be settled by asking to have the court reporter read back the transcript, for it is the court record rather than any juror's notes upon which the jury must base its determination of the facts and its verdict.
C. Duty To Deliberate / Unanimous Verdict
You will now retire to decide the questions I have described to you. For the plaintiff to prevail on the questions that you must answer, he must sustain his burden of proof as I have explained to you with respect to the questions you are considering. Your verdict on each question must be unanimous. Each juror is entitled to his or her opinion, but you are required to exchange views with your fellow jurors. This is the very essence of jury deliberation. It is your duty to discuss the evidence. If you have a point of view and after reasoning with other jurors it appears that your own judgment is open to question, then of course you should not hesitate in yielding your original point of view if you are convinced that the opposite point of view is really one that satisfies your judgment and conscience. You are not to give up a point of view, however, that you conscientiously believe in simply because you are outnumbered or outweighed. You should vote with the others only if you are convinced on the evidence, the facts, and the law that it is the correct way to decide the case. You are not to discuss the case until all jurors are present. That means that after any breaks or when you arrive in the morning if your deliberations last more than one day, do not begin to discuss the case until all jurors are present. Five or six jurors together is only a gathering of individuals. Only when all eight jurors are present do you constitute a jury, and only then may you deliberate.
D. Selecting A Foreperson And The Foreperson's Duties
The first thing you should do when you retire to deliberate is take a vote to select one of you to sit as your foreperson. The foreperson will send out any notes, and when the jury has reached a verdict, he or she will notify the Marshal that the jury has reached a verdict, and when you come into open court, the foreperson will be asked to state what the verdict is.
E. Verdict Form And Return Of The Verdict
Once you have made your verdict, you will record your decisions in a verdict form which I have prepared for you. You should also proceed through the questions in the order in which they are listed, following the instructions on that form. The foreperson should fill in the verdict form and date it, and each of you should sign it. The foreperson should then give a note to the Marshal outside your door stating that you have reached a verdict. Do not specify what the verdict is in your note. I will stress that each of you must be in agreement with the verdict that is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
F. Oath
I remind you that you took an oath to render judgment impartially and fairly, without prejudice or sympathy and without fear, solely upon the evidence in the case and the applicable law. Your oath sums up your duty. I know that you will do your duty and reach a just and true verdict.
G. Exceptions
I will ask you to remain seated while I confer with the attorneys to see if there are any additional instructions that they would like to have given to you or if there is anything I may not have covered. In this regard, I ask you not to discuss the case while seated in the box because the case has not yet been formally submitted to you.
Members of the jury, that concludes my instructions to you. You may now retire to the jury room and begin this phase of your deliberations. As a first matter of business, please select a foreperson and send me a note, signed, dated, and timed, through the Marshal or my deputy, Ms. Henrich, telling me whom you have elected as your foreperson.