Opinion
16-CV-3310 (RA)(KNF)
08-26-2021
EDWARD ROSADO, Plaintiff, v. POLICE OFFICER AMAURY SORIANO, Defendant.
JURY INSTRUCTIONS
Table of Contents
I. GENERAL INSTRUCTIONS ............................................................................ 3
A. Introductory Remarks ............................................................................ 3
B. Role of the Court............................................................................ 3
C. Role of the Jury ............................................................................ 4
D. Role of Counsel............................................................................ 4
E. Sympathy or Bias............................................................................ 5
F. All Persons Equal Before the Law............................................................................ 6
G. Burden of Proof............................................................................ 6
H. What Is and Is Not Evidence ............................................................................ 7
I. Direct and Circumstantial Evidence ............................................................................ 8
J. Witness Credibility ............................................................................ 9
K. Prior Inconsistent Statement ............................................................................ 1
L. All Available Witnesses or Evidence Need Not Be Produced ............................................................................ 12
II. SUBSTANTIVE INSTRUCTIONS ............................................................................ 12
A. Overview of Claims and Theories of Liability ............................................................................ 12
B. Second Element - Deprivation of a Constitutional Right ............................................................................ 13
C. Third Element - Proximate Cause............................................................................ 16
D. Summary of Section 1983 Claim............................................................................ 17
III. DAMAGES............................................................................ 17
A. Compensatory and Nominal Damages............................................................................ 18
B. Punitive Damages ............................................................................ 19
IV. DELIBERATIONS OF THE JURY ............................................................................ 21
A. Selection and Duties of Foreperson ............................................................................ 21
B. Right to See Exhibits and Hear Testimony; Communication with the Court............................................................................ 21
C. Notes ............................................................................ 22
D. Duty to Deliberate; Unanimous Verdict ............................................................................ 22
E. Verdict Form ............................................................................ 23
F. Return of Verdict ............................................................................ 23
V. CONCLUSION ............................................................................ 24
I. GENERAL INSTRUCTIONS
A. Introductory Remarks
Members of the jury, you have now heard all of the evidence in the case as well as the final arguments of the parties. You have paid careful attention to the evidence, and I am confident that you will act together with fairness and impartiality to reach a just verdict in the case.
Now it is time for me to instruct you as to the law that governs the case. There are three parts to these instructions. First, I'm going to give you some general instructions about your role, and about how you are to decide the facts of the case. Most of these instructions would apply to just about any trial. Second, I'll give you some specific instructions about the legal rules applicable to this particular case. Third, I'll give you some final instructions about procedure.
Listening to these instructions may not be easy. It is important, however, that you listen carefully and concentrate. I ask you for patient cooperation and attention. You'll notice that I'm reading these instructions from a prepared text. It would be more lively, no doubt, if I just improvised. But it's important that I not do that. The law is made up of words, and those words are very carefully chosen. So, when I tell you the law, it's critical that I use exactly the right words.
Because my instructions are lengthy, I have provided each of you with a copy of them, not only so that you can follow them as I read them now, but also so that you can have them with you for reference as you deliberate. Nonetheless, feel free to just listen for now.
B. Role of the Court
My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and to apply them to the facts as you determine them. With respect to legal matters, you must take the law as I give it to you. If any attorney or witness 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 must not substitute your own notions or opinions of what the law is or ought to be.
C. Role of the Jury
As members of the jury, you are the sole and exclusive judges of the facts. You evaluate the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence.
Do not conclude 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.
It is your sworn duty, and you have taken the oath as jurors, to determine the facts. Any opinion I might have regarding the facts is of absolutely no consequence.
I also ask you to draw no inference from the fact that upon occasion I asked questions of certain witnesses. These questions were only intended for clarification or to expedite matters and certainly were not intended to suggest any opinions on my part as to the verdict you should render, or whether any of the witnesses may have been more credible than any other witnesses. You are expressly to understand that the court has no opinion as to the verdict you should render in this case.
D. Role of Counsel
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. It is my job to rule on those objections. Therefore, why an objection was made or why I ruled on it the way I did is not your concern. You should draw no inference from the fact that an attorney objects to any evidence.
Nor should you draw any inference from the fact that I might have sustained or overruled an objection.
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 in the case, favorable or unfavorable, whether you approved or disapproved of their behavior as advocates, those reactions should not enter into your deliberations.
During the course of the trial, I may have had to correct the presentation of an attorney, for example, to ask them to rephrase a question. You should draw no inference against him or the client. It is the duty of the attorneys to advocate on behalf of their clients.
From time to time, the lawyers and I had conferences out of your hearing. These conferences involved procedural and other legal matters, and none of the events relating to these conferences should enter into your deliberations at all.
E. Sympathy or Bias
Under your oath as jurors you are not to be swayed by sympathy or prejudice. Your verdict must be based solely upon the evidence developed at this trial, or the lack thereof. It must be clear to you that once you let fear or prejudice or bias or sympathy interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.
It would be improper for you to consider any personal feelings you may have about one of the parties' race, religion, national origin, gender, age, sexual orientation, disability, or physical appearance. It would be equally improper for you to allow any feelings you might have about the nature of the claim against the defendant to influence you in any way. The parties in this case are entitled to a trial free from prejudice and bias. Our judicial system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence.
F. All Persons Equal Before the Law
In reaching your verdict, you must remember that all parties stand equal before a jury in the courts of the United States. You should consider and decide this case as a dispute between parties of equal standing before the law, and of equal worth. All persons and entities deserve fair, impartial, and conscientious consideration by you. All parties expect that you will fairly and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.
G. Burden of Proof
Now I will define for you the standard under which you will decide whether a party has met its burden of proof on a particular issue. The standard that applies in this case is the preponderance of the evidence.
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 true. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not to the number of witnesses or documents. In determining whether a claim has been proved by a preponderance of the evidence, you may 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 you find that the credible evidence on a given issue is evenly divided between the parties-that it is equally probable that one side is right as it is that the other side is right-then you must decide that issue against the party having this burden of proof. That is because the party bearing this burden must prove more than simple equality of evidence-the party must prove the element at issue by a preponderance of the evidence. On the other hand, the party with this burden of proof need prove no more than a preponderance. So long as you find that the scales tip, however slightly, in favor of the party with this burden of proof-that what the party claims is more likely true than not true-then that element will have been proved by a preponderance of the evidence.
The plaintiff bears the burden of proving every essential element of each of his claims by a preponderance of the evidence. If you find that the plaintiff has failed to establish a claim by a preponderance of the evidence, you must decide against him on that claim.
One final note on the burden of proof: some of you may have heard of “proof beyond a reasonable doubt.” As I told you at the beginning of the trial, “beyond a reasonable doubt” is the standard of proof in a criminal trial. It does not apply to a civil case such as this and you should put it out of your mind.
H. What Is and Is Not Evidence
In determining the facts, you must rely upon your own recollection of the evidence. The evidence in this case is the sworn testimony of the witnesses and the exhibits received in evidence. Testimony that I may have stricken or excluded, however, is not evidence and may not be considered by you in rendering your verdict. Also, if certain testimony was received for a limited purpose, you must follow the limiting instructions I gave you, and use the evidence only for the purpose I indicated.
The only exhibits that are evidence in this case are those that were received in evidence. Exhibits marked for identification but not admitted are not evidence, nor are materials that were used only to refresh a witness's recollection.
As I told you at the start of this case, statements and arguments by lawyers are not evidence, because the lawyers are not witnesses. What they have said to you in their opening statements and in their summations is intended to help you understand the evidence to reach your verdict. If your recollection of the facts differs from the lawyers' statements, however, it is your recollection that controls.
For the same reasons, you are not to consider a lawyer's questions as evidence. It is the witnesses' answers that are evidence, not the questions. Similarly, any statements that I may have made do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen.
Finally, this means, of course, that anything you may have heard or read in the news media or anything outside of this courtroom may play no role in your deliberations. Your decision in this case must be made solely on the evidence presented at trial.
I. 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 the witness has seen, felt, touched, or heard. For example, if a witness testified that when he or she left the house this morning, it was raining, that would be direct evidence about the weather.
Circumstantial evidence is evidence from which you may infer the existence of certain facts. For example, assume that when you came into the courthouse this morning the sun was shining and it was a nice day. Assume that the courtroom blinds were drawn and you could not look outside. As you were sitting here, someone walked in with an umbrella, which was dripping wet. Then a few minutes later another person entered with a wet raincoat. Now, you cannot look outside of the courtroom and you cannot see whether or not it is raining. So, you have no direct evidence of that fact. But on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason, experience, and common sense from one established fact the existence or non-existence of some other fact. As you can see, the matter of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a logical, factual conclusion which you might reasonably draw from other facts that have been proven. Many material facts-such as what a person was thinking or intending-can rarely be proved by direct evidence.
Circumstantial evidence is as valuable as direct evidence. The law makes no distinction between direct and circumstantial evidence.
There are times when different inferences may be drawn from the evidence. The plaintiff asks you to draw one set of inferences. The defendant asks you to draw another. It is for you, and for you alone, to decide what inferences you will draw.
J. Witness Credibility
You have had the opportunity to observe the witnesses. It is now your job to decide how believable each witness was in his or her testimony. You are the sole judges of the credibility of each witness and of the importance of his or her testimony.
You should carefully scrutinize all of the testimony of each witness, the circumstances under which each witness testified, the impression the witness made when testifying, the relationship of the witness to the controversy and the parties, the witness's bias or impartiality, the reasonableness of the witness's statement, the strength or weakness of the witness's recollection viewed in the light of all other testimony, and any other matter in evidence that may help you decide the truth and the importance of each witness's testimony.
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. How did the witness appear? Was the witness candid, frank, and forthright; or, did the witness seem to be evasive or suspect in some way? How did the way the witness testified on direct examination compare with how the witness testified on cross-examination? Was the witness consistent or contradictory? Did the witness appear to know what he or she was talking about? Did the witness strike you as someone who was trying to report his or her knowledge accurately? These are examples of the kinds of common-sense questions you should ask yourselves in deciding whether a witness is, or is not, truthful.
In passing upon the credibility of a witness, you may take into account any inconsistencies or contradictions as to material matters in his or her testimony. You should also take into account any evidence that the witness who testified may benefit in some way from the outcome in this case. Likewise, you should note any evidence of hostility or affection that the witness may have towards one of the parties. Such bias or interest in the outcome creates a motive to testify falsely. It is your duty to consider whether the witness has permitted any such bias or interest to color his or her testimony and bear that factor in mind when evaluating the credibility of the testimony.
This is not to suggest that every witness who has an interest in the outcome of a case will testify falsely. It is for you to decide to what extent, if at all, the witness's interest has affected or colored his or her testimony.
If you find that any witness has willfully testified falsely as to any material fact, you have the right to reject the testimony of that witness in its entirety. On the other hand, even if you find that a witness has testified falsely about one matter, you may reject as false that portion of his or her testimony and accept as true any other portion of the testimony which you find credible or which you may find corroborated by other evidence in this case. A witness may be inaccurate, contradictory, or even untruthful in some aspects, and yet be truthful and entirely credible in other aspects of his or her testimony.
The ultimate question for you to decide in passing upon credibility is: did the witness tell the truth before you? It is for you to say whether his or her testimony at this trial was truthful in whole or in part.
K. Prior Inconsistent Statement
You have heard evidence that certain witnesses may have made statements on earlier occasions which counsel argue are inconsistent with their trial testimony. Evidence of a prior inconsistent statement by someone who is not the plaintiff or defendant is not to be considered by you as affirmative evidence in determining liability. Evidence of any such prior inconsistent statements was placed before you for the limited purpose of helping you decide whether to believe the trial testimony of the witness who may have contradicted himself or herself. If you find that a witness made an earlier statement that conflicts with that witness's trial testimony, you may consider that fact in deciding how much of the trial testimony, if any, to believe.
In making this determination, you may consider whether the witness purposely made a false statement or whether it was an innocent mistake; whether the inconsistency concerns an important fact, or whether it had to do with a small detail; whether the witness had an explanation for the inconsistency; and whether that explanation appealed to your common sense.
It is exclusively your duty, based upon all the evidence and your own good judgment, to determine whether the prior statement was inconsistent, and if so how much, if any, weight to be given to the inconsistent statement in determining whether to believe all or part of the witness's testimony.
L. All Available Witnesses or 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 at issue in this trial. You should not draw any negative inference against any party with respect to any issue in dispute based on their failure to produce a witness. Nor does the law require any party to produce as exhibits all papers and things mentioned in the evidence in the case.
The weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of one witness as to any fact is more probative or compelling than the testimony of a larger number of witnesses to the contrary.
II. SUBSTANTIVE INSTRUCTIONS
I will turn now to my instructions on the substantive law to be applied to this case.
A. Overview of Claims and Theories of Liability
The plaintiff, Edward Rosado, brings his claims in this case under a federal statute entitled 42 U.S.C. § 1983, or Section 1983 for short. Section 1983 is a statute that provides a remedy for individuals who have been deprived of federal rights under color of state law. Here, Mr. Rosado alleges that he was denied his constitutional rights because the defendant, Police Officer Amaury Soriano, used excessive force against him on May 4, 2013.
To establish a Section 1983 claim, the plaintiff must prove, by a preponderance of the evidence, each of the following three elements:
First, the plaintiff must prove that the defendant was acting under color of state law at the time of the incident. This element is not contested. There is no dispute that the defendant was acting as a police officer during the incident.
Second, the plaintiff must prove that the defendant's conduct deprived him of a right secured by the Constitution of the United States, that is, the right not to be subjected to excessive force.
Third, the plaintiff must prove that the defendant's acts were the proximate cause of the injuries that the plaintiff sustained.
I will now explain the two contested elements-elements two and three-in greater detail.
B. Second Element - Deprivation of a Constitutional Right
The second element that the plaintiff must prove by a preponderance of the evidence is that the defendant deprived the plaintiff of a federal right. In order for the plaintiff to establish this second element, he must prove by a preponderance of the evidence that: (1) the defendant acted in the manner that the plaintiff alleges; and (2) that the defendant's conduct caused the plaintiff to suffer the loss of a federal right. Note that Section 1983 does not require the plaintiff to demonstrate that the defendant acted with the specific intent to violate the plaintiff's federally protected rights.
The plaintiff alleges that the defendant violated his Fourth Amendment rights by using excessive force when he arrested him on May 4, 2013. The defendant does not dispute that he used force to arrest plaintiff, but denies that the force used was excessive. Rather, the defendant maintains that the force he used was reasonable under the circumstances. Given the dispute about the facts of what occurred on May 4, 2013, you must first determine whose version of events you believe and the extent of the force, if any, used against the plaintiff.
Once you make that determination, you must then determine if the amount of force applied was reasonable under the circumstances. The right of a law enforcement official to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion. Indeed, not every push and shove rises to the level of a constitutional violation. Minor scrapes, bumps or bruises potentially could occur, often unintended, during any arrest, and a police officer cannot be held liable for every such incident. A police officer's application of force violates the Constitution only if the amount of force applied is objectively unreasonable in light of the facts and circumstances confronting him, without regard to that officer's underlying intent or motivation. You must judge the reasonableness of the force from the perspective of a reasonable officer on the scene at the moment the force is used, rather than with the 20/20 vision of hindsight. In other words, you must judge the defendant's actions in light of the situation as it appeared to him at the time.
Your reasonableness determination should consider the totality of the circumstances of this particular case, including, but not limited to, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. You must also take into account that police officers are forced to make split-second judgments about the amount of force that is necessary in a particular situation, in circumstances that are tense, uncertain, and rapidly evolving. Just to be clear, while the severity of the crime at issue is one of the factors you must consider, you need not determine whether the defendant was justified in arresting the plaintiff. Rather, you should focus on the ultimate question of whether the force used was reasonable.
Intent
In order to succeed on his claim, the plaintiff must also show, by a preponderance of the evidence, that the defendant's actions were intentional or reckless-that is, more than merely negligent.
Section 1983 does not require the plaintiff to demonstrate that the defendant acted willfully or with the specific intention of violating the plaintiff's federally protected rights. But the plaintiff must show that the defendant intended to commit the relevant acts, or that his actions were reckless.
An act is intentional if it is done voluntarily or deliberately and not because of mistake, accident, negligence or any other innocent reason. An act is reckless if it is done in conscious disregard of its known probable consequences. By contrast, an act is negligent if a defendant was under a duty or obligation that required him or her to adhere to a certain standard of conduct to protect others against unreasonable risks, and he breached that duty or obligation. Acts that are negligent do not meet the requirements of a 1983 claim.
Remember that there is no way of looking into a person's mind. Therefore, in determining intent or another state of mind, you have to depend on what was done, and what the people involved said was in their minds, and your belief or disbelief with respect to that evidence.
Personal Involvement
Lastly, I want to make clear that the defendant is liable only for his individual actions. In order for the plaintiff to prevail on his claim of excessive force, you must find that the defendant- Officer Amaury Soriano-was personally involved in violating the plaintiff's rights. In this context, personal involvement means direct participation in the alleged wrongful acts. If you find that the defendant was not personally involved in any deprivation of the plaintiff's constitutional rights, then you must find for the defendant. If, however, you find that the defendant was personally involved in the deprivation of the plaintiff's constitutional rights, then you must go on to determine whether the plaintiff has proven the other elements of his claim.
C. Third Element - Proximate Cause
I will now instruct you on the final element of a Section 1983 claim: proximate cause. The plaintiff must prove that the acts of the defendant were a proximate cause of the harm, if any, that he sustained.
Proximate cause means that there must be a sufficient causal connection between the acts or omissions of the 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 the defendant's act or omission. If an injury was a direct result or reasonably probable consequence of the defendant's act or omission, it was proximately caused by such act or omission. In other words, if the 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. 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 injury was caused by a new or independent source of an injury which intervenes between the act or omission of the defendant and the plaintiff's injury and which produces a result which was not reasonably foreseeable by the defendant.
D. Summary of Section 1983 Claim
To summarize for you very briefly, I have described for you the three elements that the plaintiff must prove by a preponderance of the evidence to prove his claim under Section 1983. First: that the defendant acted “under color of state law, ” which is not disputed in this case. Second: that the defendant's intentional or reckless conduct deprived the plaintiff of a federal right-in this case, the right not to subjected to excessive force. Third: that the defendant's acts proximately caused the plaintiff's injuries.
III. DAMAGES
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. 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 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 the Court. If you make any award of damages, that award is not subject to federal income taxes and you should not consider such taxes in determining the amount of damages, if any.
The verdict form I will give you will assist you in recording the determinations, if any, that you make as to damages.
A. Compensatory and Nominal Damages
If you find in favor of the plaintiff on his claim of excessive force, then 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 the defendant's wrongful conduct. The damages that 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 in which he would have been had there been no violation of his rights. The purpose is not to punish the defendant.
Compensatory damages may include damages for the physical injury, pain and suffering, mental anguish, shock, and discomfort that the plaintiff suffered because of the 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 the 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 the defendant's impermissible conduct caused this suffering. To satisfy the 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. Any award you make must be fair and reasonable in light of the evidence at trial. An award must not be based only on speculation or sympathy.
If you find in favor of the plaintiff on his claim, 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 that the plaintiff's rights were violated, but that the plaintiff has failed to prove by a preponderance of the evidence that he suffered 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 compute 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 calculable damages, in which case you must award compensatory damages, or else he did not experience actual calculable damages, in which case you must award nominal damages. Nominal damages may only be awarded for a token sum, not to exceed one dollar.
B. Punitive Damages
Whether or not you award the plaintiff actual damages, if you find in favor of the plaintiff, you may also, in your discretion, make an award of punitive damages against the defendant.
Punitive damages are awarded, in the discretion of the jury, to punish a defendant for extreme or outrageous conduct, and to deter or prevent a defendant and others like him from committing such conduct in the future.
You may award punitive damages if you find that the acts or omissions of the defendant were done maliciously or wantonly. An act or failure to act is malicious if it is prompted by ill will or spite towards the injured person. An act or failure to act is wanton if committed with a reckless or callous disregard for the rights of the injured person. The plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant acted maliciously or wantonly with regard to the plaintiff's rights.
If you find by a preponderance of the evidence that the defendant acted with malicious intent to violate the plaintiff's federal rights, or if you find that the defendant acted with a callous or reckless disregard of the plaintiff's rights, then you may award punitive damages against the defendant. An award of punitive damages, however, is discretionary; that is, if you find that the legal requirements for punitive damages are satisfied, then you may decide to award punitive damages, or you may decide not to award them.
In making this decision, you should consider the underlying purpose of punitive damages. Punitive damages are awarded in the jury's discretion to punish a defendant for outrageous conduct or to deter him and others like him from performing similar conduct in the future. Thus, in deciding whether to award punitive damages, you should consider whether the defendant may be adequately punished by an award of actual damages only, or whether the conduct is so extreme and outrageous that actual damages are inadequate to punish the wrongful conduct. You should also consider whether actual damages, standing alone, are likely to deter or prevent the defendant from similar wrongful conduct in the future, if it was in fact wrongful, or whether punitive damages are necessary to provide deterrence. Finally, you should consider whether punitive damages are likely to deter or prevent other persons from performing wrongful acts similar to those that the defendant may have committed.
If you decide to award punitive damages, these same purposes should be kept in mind as you determine the appropriate sum of money to be awarded as punitive damages. That is, in fixing the sum to be awarded, you should consider the degree to which the defendant should be punished for his wrongful conduct, and the degree to which an award of one sum or another will deter the defendant or persons like him from committing wrongful acts in the future.
IV. DELIBERATIONS OF THE JURY
Ladies and gentlemen of the jury, that concludes the substantive portion of my instructions to you. You are about to go into the jury room and begin your deliberations. I will now give you a few final instructions on those deliberations.
A. Selection and Duties of Foreperson
Before you begin deliberating, you should by your own vote select one of you to sit as your foreperson. The foreperson doesn't have any more power or authority than any other juror, and his or her vote or opinion doesn't count for any more than any other juror's vote or opinion. The foreperson is merely your spokesperson to the court. He or she 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 you will come into open court and give the verdict.
B. Right to See Exhibits and Hear Testimony; Communication with the Court
All of the exhibits admitted into evidence will be sent to the jury room with you. If you want any of the testimony read, you may request that. Please remember that it is not always easy to locate what you might want, so be as specific as you possibly can be in requesting 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.
Your requests for testimony-in fact any communications with the Court-should be made to me in writing, signed, dated, and timed by your foreperson, and given to one of the marshals. In any event, do not tell me or anyone else how the jury stands on any issue until after a unanimous verdict is reached and announced in open court by your foreperson.
C.
Some 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 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. All jurors' recollections are equal. If you can't agree on what you remember the testimony was, you can ask to have the transcript read back.
D. Duty to Deliberate; Unanimous Verdict
Shortly, you will retire to decide the case. You must base your verdict solely on the evidence and these instructions as to the law, and you are obliged on your oath as jurors to follow the law as I instruct you, whether you agree or disagree with the particular law in question.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for himself or herself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that conclusion which in your good conscience appears to be in accordance with the truth.
Again, your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict or solely because of the opinion of other jurors. Each of you must make your own decision about the proper outcome of this case based on your consideration of the evidence and your discussions with your fellow jurors. No juror should surrender his or her conscientious beliefs solely for the purpose of returning a unanimous verdict.
Remember at all times, you are not partisans. You are judges-judges of the facts. Your sole interest is to seek the truth from the evidence in the case. Nothing said in these instructions and nothing in any verdict form prepared for your convenience is meant to suggest or convey in any way or manner any suggestion or hint as to what verdict I think you should find. What the verdict shall be is your sole and exclusive duty and responsibility.
If you are divided, do not report how the vote stands and if you have reached a verdict do not report what it is until you are asked in open court.
E. Verdict Form
In a few moments, I will give you the verdict form with the questions for you to answer and you will retire to deliberate your decision.
You should answer every question except where the verdict form indicates otherwise. You should also proceed through the questions in the order in which they are listed.
F. Return of Verdict
After you have reached a verdict, your foreperson will fill in the form that has been given to you, you will all sign and date it, and your foreperson will advise the marshal outside your door that you are ready to return to the courtroom.
I will stress that each of you must be in agreement with the verdict which is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
V. CONCLUSION
In conclusion, ladies and gentlemen, I am sure that if you listen to the views of your fellow jurors, if you apply your own common sense, and if you follow my instructions on the law, you will reach a fair verdict here.