Fill and Sign the Index to Pechman Preliminary Civil Jury Instructions No Form

487 1.2 Preliminary Instructions Before Opening Statements (Long Form) Members of the Jury: You have now been sworn as the jury to try this case and I would like t o give you some preliminary instruct ions at this time. By your verdict(s) you will decide the disputed issues of fact. I will decide all questions of law that arise during the trial, and before you retire to deliberate together and decide the case at the end of the trial, I will then instruct you again on the rules of law that you must follow and apply in reaching your decision. Because you w ill be called upon to decide the facts of t he case you should give careful attention to t he testimony and evidence presented for your consideration during the trial, but you should keep an open mind and should not form or state any opinion about the case one way or the other until you have heard all of the evidence and have had the benefit of the closing arguments of the lawyers as well as my instructions to you on the applicable law. During the trial you must not discuss the case in any manner among yourselves or with anyone else, and you must not permit anyone to attempt t o discuss it with you or in your presence; and, insofar as the lawyers are concerned, as well as others whom you may come to recognize as having some connection with the case, you are instructed that, in order to avoid even the appearance of impropriety, you should have no conversation whatever with those persons while you are serving on the jury. You must also avoid reading any newspaper articles that might be published about t he case now t hat t he trial has begun, and you must also avoid listening to or observing any broadcast news program on either television or radio because of the possibility that some mention might be made of the case during such a broadcast now that the trial is in progress. The reason for these cautions, of course, lies in the fact that it will be your duty t o decide this case only on the basis of the testimony and evidence presented during the trial without consideration of any other matters whatever. From time to time during the trial I may be called upon to make rulings of law on motions or objections made by the lawyers. You should not infer or conclude from any ruling I may make that I have any opinions on the merits of the case favoring one side or the other. And if I sustain an objection to a question that goes unanswered by the witness, you should not speculate on what answer might have been given, nor should you draw any inferences or conclusions from the question itself.During the trial it may be necessary for me to confer with the lawyers from time to time out of your hearing concerning quest ions of law or procedure that require consideration by the Court alone. On some occasions you may be excused from the courtroom as a convenience to you and to us while I discuss such matters with the lawyers. I will try to limit such interruptions as much as possible, but you should remember at all times the importance of the matter you are here to determine and should be patient even though the case may seem to go slowly. In that regard, as you were told during the process of your selection, we expect the case to last, but I will make every effort to expedite the trial whenever possible. Now, in order that you might better understand at the beginning of the case the nature of the decisions you will be asked to make and how you should go about making them, I would like to give you some preliminary instructions at this time concerning some of the rules of law that will apply. Of course, the preliminary instructions I will give you now will not cover all of the rules of law applicable to this case. As stated before, I will instruct you fully at the end of the trial just before you ret ire to deliberate upon your verdict(s), and will probably restate at that time some of the rules I want to tell you about now. In any event, you should not single out any one instruction alone as stating the law, but should consider all of my instruct ions as a whole. Presumption of Innocence, as you w ere told during the process of your selection, an indictment in a criminal case is merely the accusatory paper which states the charge or charges to be determined at the trial, but it is not evidence against the Defendant or anyone else. Indeed, the Defendant has entered a plea of Not Guilty and is presumed by the law to be innocent. The Government has the burden of proving a Defendant guilty beyond a reasonable doubt, and if it fails to do so you must find that Defendant not guilty. Burden of Proof. Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. Order of Proof-Defendant' s Right Not To Testify. Because the Government has the burden of proof it will go forward and present its testimony and evidence first. After the Government finishes or "rests" what we call its "case in chief", the Defendant may call witnesses and present evidence if [he] [she] wishes to do so. However, you will remember that the law does not require a Defendant to prove [his] [her] innocence or produce any evidence at all, and no inference what ever may be drawn from the election of a Defendant not to testify in the event [he] [she] should so elect.Credibility Of The Witnesses. As you listen to the testimony you should remember that you will be the sole judges of the credibility or "believability" of each witness and the weight to be given to his or her testimony. In deciding whether you believe or disbelieve any witness you should consider his or her relationship to the Government or to the Defendant; the interest, if any, of the witness in the outcome of the case; his or her manner of testifying; the opportunity of the witness to observe or acquire knowledge concerning the facts about which he or she testified; the candor, fairness and intelligence of the witness; and the extent to which the witness has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part. Trial Transcripts Not Available. You will notice that the Court Reporter is making a complete stenographic record of all that is said during the trial, including the testimony of the witnesses, in case it should become necessary at a future date to prepare printed transcripts of any portion of t he trial proceedings. Such transcripts, however, if prepared at all, will not be printed in sufficient time or appropriate form for your review during your deliberations, and you should not expect to receive any transcripts. You will be required to rely upon your own individual and collective memory concerning what the testimony was. Exhibits Will Be Available. On the other hand, any papers and other tangible exhibits received in evidence during the trial will be available to you for study during your deliberations. On some occasions, during the trial, exhibits may be handed to you for brief inspection there in the Jury box; others will not be shown to you. But do not be concerned because, as I said, you w ill get to see and inspect at the end of the case all of the exhibits that are received in evidence. Note taking - Permitted. Because transcripts will not be available, you will be permitted to take notes during the trial if you want to do so, and the Clerk w ill provide notebooks and pens or pencils for each of you. On the other hand, of course, you are not required to take notes if you do not want to. That w ill be left up to you, individually. If you do decide to take notes, be careful not t o get so involved in note taking that you become distracted from the ongoing proceedings.Don't try to summarize all of t he testimony. Instead, limit your note taking to specific items of information that might be difficult to remember later such as dates, times, amounts, measurements or identities and relationships. But remember that you must decide upon the credibility or believability of each witness, and you must therefore observe the demeanor and appearance of each witness while testifying. Note taking must not distract you from that task. Also your notes should be used only as aids to your memory; and, whether you take notes or not, you should rely upon your own independent recollection or memory of what the testimony was and should not be unduly influenced by the notes of other Jurors. Notes are not entitled to any greater weight than the recollection or impression of each Juror as to what the testimony was. Note taking - Not Permitted. A question sometimes arises as to whether individual members of the Jury will be permitted to take notes during the trial. The desire to take notes is perfectly natural, especially for those of you who are accustomed to making notes because of your schooling or the nature of your work or the like. It is requested, how ever, that Jurors not take notes during the trial. One of the reasons for having a number of persons on the Jury is to gain the advantage of your several, individual memories concerning the testimony presented before you; and, while some of you might feel comfortable taking notes, other members of the Jury may not have skill or experience in note taking and may not wish to do so. Instructions On The Law Of Conspiracy. As you know from the explanation I gave during the course of your selection, it is charged in this case (among other things) that the Defendant(s) engaged in an unlawful " conspiracy" to commit certain offenses. Under the law a "conspiracy" is a combination or agreement of two or more persons to join together to attempt to accomplish some unlawful purpose. It is a kind of "partnership in criminal purposes," and willful participation in such a scheme or agreement, [followed by the commission of an overt act by one of the conspirators] * is sufficient to complete the offense of " conspiracy" itself even though t he ultimate criminal object of the conspiracy is not accomplished or carried out. In order t o establish the offense of "conspiracy" the Government must prove beyond a reasonable doubt each of the following specific facts: (1) That two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment; (2) That t he Defendant, knowing the unlawful purpose of t he plan, willfully joined in it; [(3) That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the methods (or "overt acts" ) described in the indictment; and (4) That such "overt act" was knowingly committed at or about the time alleged in an effort to carry out or accomplish some object of the conspiracy.] * Instructions On The Law Governing Substantive Offenses. In addition to the alleged conspiracy offense, the indictment also charges certain so-called " substantive offenses,"namely [here describe t he alleged substantive offenses charged in the indictment]. In order to establish that offense the Government must prove beyond a reasonable doubt each of t he following essential elements: [Quote essential elements of the offense as set forth in the appropriate Offense Instruction.] The word "knowingly, " as that term has been used in these inst ructions, means that the act was done voluntarily and intentionally and not because of mistake or accident. The word "willfully", as that term has been used in these instruct ions, means that the act was committed voluntarily and purposely with the specific intent t o do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law. Conclusion. Now, we will begin the trial at this time by affording the lawyers for each side an opportunity to make opening statements to you in which they may explain the issues in the case and summarize the facts they expect the evidence will show. After all the testimony and evidence has been presented, the lawyers will then be given another opportunity to address you at the end of the trial and make their summations or final argument s in the case. The statements that the lawyers make now, as well as the arguments they present t o you at the end of the trial, are not t o be considered by you either as evidence in the case (which comes only from the witnesses and exhibit s), or as your instruction on the law (which will come only from me). Nevertheless, these statements or arguments are intended to help you understand t he evidence as it comes in, the issues or disputes you will be called upon to decide, as well as the positions taken by both sides. So I ask that you now give the lawyers your close attention as I recognize them in turn for the purpose of making an opening statement.