BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 6 - Civil Proceedings

    6.05 Preliminary Jury Instructions--Civil Case

        6.05.1 Preliminary Jury Instructions-- Civil Case: Introductory Note
        6.05.2 Preliminary Jury Instructions--Civil Case: Duty Of The Jury
        6.05.3 Preliminary Jury Instructions--Civil Case: Evidence
        6.05.4 Preliminary Jury Instructions--Civil Case: Burden of proof
        6.05.5 Preliminary Jury Instructions--Civil Case: Summary Of Applicable Law
        6.05.6 Preliminary Jury Instructions--Civil Case: Conduct Of The Jury
        6.05.7 Preliminary Jury Instructions--Civil Case: Course Of The trial
        6.05.8 Preliminary Jury Instructions--Civil Case: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

These suggested instructions are designed to be given following the swearing of the jury. They are general and may require modification in light of the nature of the particular case. They are intended to give the jury, briefly and in understandable language, information to make the trial more meaningful. Other instructions, such as explanations of depositions, interrogatories, and the hearsay rule, may be given at appropriate points during the trial.

Preliminary instructions

Members of the jury: Now that you have been sworn, I will give you some preliminary instructions to guide you in your participation in the trial.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

It will be your duty to find from the evidence what the facts are. You and you alone will be the judges of the facts. You will then have to apply to those facts the law as the court will give it to you. You must follow that law whether you agree with it or not.

Nothing the court may say or do during the course of the trial is intended to indicate, or should be taken by you as indicating, what your verdict should be.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into the record as exhibits, and any facts that the lawyers agree to or stipulate to or that the court may instruct you to find.

Certain things are not evidence and must not be considered by you. I will list them for you now.

1. Statements, arguments, and questions by lawyers are not evidence.

2. Objections to questions are not evidence. Lawyers have an obligation to their clients to make objections when they believe evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction.

3. Testimony that the court has excluded or told you to disregard is not evidence and must not be considered.

4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in the courtroom.

There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. I will give you further instructions on these as well as other matters at the end of the case, but keep in mind that you may consider both kinds of evidence.

It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness’s testimony to accept or reject. I will give you some guidelines for determining the credibility of witnesses at the end of the case.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

This is a civil case. The plaintiff has the burden of proving his [her] case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims is more likely true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.

Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That requirement does not apply to a civil case; therefore, you should put it out of your mind.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

[Note: A summary of the elements may not be appropriate in some cases.]

In this case, the plaintiff claims that ___________; the defendant claims that ___________. I will give you detailed instructions on the law at the end of the case, and those instructions will control your deliberations and decision. But in order to help you follow the evidence, I will now give you a brief summary of the elements which the plaintiff must prove to make his [her] case: [here summarize the elements].

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Now, a few words about your conduct as jurors.

First, I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. [Footnote 1]

Second, do not read or listen to anything touching on this case in any way. If anyone tries to talk to you about it, bring it to the court’s attention promptly.

Third, do not try to do any research or make any investigation about the case on your own.

Finally, do not form any opinion until all the evidence is in. Keep an open mind until you start your deliberations at the end of the case.

[If the court decides to allow note taking, add:]

If you want to take notes during the course of the trial, you may do so. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying at the same time. If you do take notes, be sure that your note taking does not interfere with your listening to and considering all of the evidence. Also, if you do take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day—be sure to leave them in the jury room.

If you choose not to take notes, remember that it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you all must remember the evidence in this case. [Footnote 2]

FOOTNOTES:

Footnote 1:    Judges may wish to advise jurors that this prohibition includes any form of communication over the Internet, such as e-mail, instant messaging, websites, and blogs; the use of cell phones for text messaging or video and audio recording; and the use of any other recording or transmitting device.

Footnote 2:    For another sample instruction on note taking, see Civil Litigation Management Manual 374–75 (Judicial Conference of the United States 2001).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The trial will now begin. First, each side may make an opening statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence.

Next, the plaintiff will present his [her] witnesses, and the defendant may cross-examine them. Then the defendant will present his [her] witnesses, and the plaintiff may cross-examine them.

After all the evidence is in, the parties will present their closing arguments to summarize and interpret the evidence for you, and the court will give you instructions on the law.

[Note: Some judges may wish to give some instructions before closing arguments. See Fed. R. Civ. P. 51(b)(3).]

You will then retire to deliberate on your verdict.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Civil Litigation Management Manual 87, 365, 374–75, 380 (Judicial Conference of the United States 2001)

Manual for Complex Litigation, Fourth 154–56 (2004)