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Benson & Bingham are often asked what it's like to be a juror and/or what to expect from a jury trial. As practicing attorneys, it is only on rare occasions that a legal professional will be selected as a juror, however as attorneys we are naturally experts on how to approach as well as generally deal with jurors during a trial.
With that in mind, the below is a summary of general instructions that are presented to jurors prior to a trial in the State of Nevada.
Plaintiff is seeking damages based upon [a] claim[s] of [description of claim]. Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:
[Plaintiff's facts to establish].
The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:
[Defendant's facts to establish].
A "preponderance of the evidence" means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in your mind a belief that what is sought to be proved is more probably true than not true.
In determining whether a party has met this burden, you will consider all the evidence, whether produced by the plaintiff or defendant.
See CA BAJI 2.60; see also, Seaman v. McKesson Corp., 109 Nev. 8, 846 P.2d 280 (1993) (disease caused by the occupational environment); Corbin v. State, 111 Nev. 378, 892 P.2d 580 (1995) (regarding entrapment: "Preponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth."); also see Deiss v. Southern Pac. Co., 56 Nev. 169 (1936).
Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the jury a firm belief or conviction as to the allegations sought to be established. It is an intermediate degree of proof, being more than a mere preponderance but not to the extent of such certainty as is required to prove an issue beyond a reasonable doubt. Proof by clear and convincing evidence is proof which persuades the jury that the truth of the contentions is highly likely.
See, MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (April 2007), Instruction 1.4: "Clear and Convincing Evidence"; see also, Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 969 P.2d 949 (1998) (Nevada Supreme Court agreed with the definition by the District Court, wherein it instructed the jury that "clear and convincing evidence is evidence which is beyond a mere preponderance of the evidence."); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (U.S.Tex. 1979) (in order to satisfy due process, instructions on the clear and convincing standard need only "inform the fact-finder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases.").
The evidence which you are to consider in this case consists of the testimony of the witnesses, the exhibits and any facts admitted or agreed to by counsel.
There are two types of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is the proof of one or more facts from which you could find another fact. The law makes no distinction between the weight to be given either direct or circumstantial evidence. Therefore, all of the evidence in the case, including the circumstantial evidence, should be considered by you in arriving at your verdict.
Statements, arguments and opinions of counsel are not evidence in the case. However, if the attorneys stipulate to the existence of a fact, you must accept the stipulation of evidence and regard that fact as proved. You must not speculate to be true any insinuations suggested by a question asked a witness. A question is not evidence and may be considered only as it supplies meaning to the answer. You must also disregard any evidence to which an objection was sustained by the court and any evidence ordered stricken by the court. Anything you may have seen or heard outside the courtroom is not evidence and must also be disregarded.
See, MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (April 2007), Instruction 1.6: "What is Evidence"; see also, Deveroux v. State, 96 Nev. 388, 610 P.2d 722 (1980); Crawford v. State, 92 Nev. 456, 552 P.2d 1378 (1976) (circumstantial evidence alone may sustain a conviction).
Where relevant evidence which would properly be a part of this litigation is within the control of one party whose interest it would naturally be to produce it, and they fail to do so without a satisfactory explanation, the jury may draw an inference that such evidence would have been unfavorable to that party.
An inference means a logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, the jury may conclude exists from the established facts.
Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006) ("[A] permissible inference that missing evidence would be adverse applies when evidence is negligently lost or destroyed. The NRS 47.250(3) presumption, on the other hand, applies only in cases involving willful suppression of evidence, in which the party destroying evidence intends to harm another party, i.e., to obtain a competitive advantage in the matter.)."
When evidence is willfully suppressed, the law creates a rebuttable presumption that the evidence would be adverse to the person or company suppressing it. Willful suppression means the willful or intentional spoliation of evidence and requires the intent to harm another party through its destruction and not simply the intent to destroy evidence. When a party seeking the presumption's benefit has demonstrated that the evidence was destroyed with intent to harm another party, the presumption that the evidence was adverse applies, and the burden of proof shifts to the party who destroyed the evidence. To rebut the presumption, the destroying party must then prove, by a preponderance of the evidence, that the destroyed evidence was not unfavorable. If not rebutted, the jury is required to presume that the evidence was adverse to the destroying party.
Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006) (court stated "[w]hen evidence is willfully suppressed, NRS 47.250(3) creates a rebuttable presumption that the evidence would be adverse if produced. Other courts have determined that willful or intentional spoliation of evidence requires the intent to harm another party through the destruction and not simply the intent to destroy evidence. We agree. Thus, before a rebuttable presumption that willfully suppressed evidence was adverse to the destroying party applies, the party seeking the presumption's benefit has the burden of demonstrating that the evidence was destroyed with intent to harm. When such evidence is produced, the presumption that the evidence was adverse applies, and the burden of proof shifts to the party who destroyed the evidence. To rebut the presumption, the destroying party must then prove, by a preponderance of the evidence, that the destroyed evidence was not unfavorable. If not rebutted, the factfinder then presumes that the evidence was adverse to the destroying party.").
Certain evidence was admitted for a limited purpose. At the time this evidence was admitted you were admonished that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider such evidence for any purpose except the limited purpose for which it was admitted.
See, MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (April 2007), Instruction 1.8: "Evidence for Limited Purpose"; CA BAJI 2.05; see also, United States v. McLennan, 563 F.2d 943, 2 Fed. R. Evid. Serv. 750 (9th Cir. 1977), cert. denied, 435 U.S. 969 (1978) (as a rule, limiting instructions need only be given when requested and need not be given sua sponte by the court); United States v. Marsh, 144 F.3d 1229 (9th Cir.1998) (when the trial court fails to instruct the jury in its final instructions regarding the receipt of evidence for a limited purpose, the Ninth Circuit examines the trial court's preliminary instructions to determine if the court instructed the jury on this issue), cert. denied, 525 U.S. 973 (1998).
During the trial, I explained that certain evidence could be considered as to only one party. You may not consider that evidence as to any other party.
[During the trial, I explained that certain evidence could be considered as to one or more parties but not to every party. You may not consider that evidence as to any other party.]
See CA BAJI 2.05. 2.10
Certain testimony has been read into evidence from a deposition. A deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony as if it had been given in court.
NRCP 32; MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (April 2007), Instruction 2.4: "Deposition in Lieu of Live Testimony."
During the course of the trial you have heard references made to the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. You are to consider interrogatories and the answers to them the same as if the questions had been asked and answered here in court.
See NRCP 33; MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (2007), Instruction 2.09: "Use of Interrogatories of a Party."
As permitted by law, the parties served upon each other a written request for the admission of the truth of certain matters of fact. You will regard as being conclusively proved all such matters of fact which were expressly admitted by the parties or which the parties failed to deny.
NRCP 36; see also, Woods v. Label Investment Corp., 107 Nev. 419, 812 P.2d 1293 (1991) ("Where demand is made upon a party for admission of facts and such party fails to respond to the request, matters contained therein are deemed admitted.") (citing Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964)); Lawrence v. Southwest Gas Corp., 89 Nev. 433, 514 P.2d 868 (1973); Graham v. Carson-Tahoe Hosp., 91 Nev. 609, 540 P.2d 105 (1975) (failure to timely respond to the request for admissions will cause the matters therein to be deemed admitted even if the established matters are ultimately untrue); Smith v. Emery, 109 Nev. 737, 856 P.2d 1386 (1993) ("It is well settled that failure to respond to a request for admissions will result in those matters being deemed conclusively established.").
The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness' credibility.
NRS 50.095; see also, Harris v. State, 106 Nev. 667, 799 P.2d 1104 (1990).
[Name of party or witness] has exercised [his] [her] legal right not to testify concerning certain matters. Do not draw any conclusions from the exercise of this right or let it affect any of your decisions in this case. A [party] [witness] may exercise this right freely and without fear of penalty.
[The NV Recommended Jury Instructions: Civil Committee recommends that no instruction regarding evidence of a settlement be given.]
Moore by Moore v. Bannen, 106 Nev. 679, 799 P.2d 564 (1990) (allowing jury to be informed about existence of settling codefendants can lead to improper speculation; thus, where there has been settlement between plaintiff and one of several defendants, jury may not be informed as to either fact of settlement or sum paid); Simmons v. Ghaderi, 44 Cal.4th 570, 187 P.3d 934 (2008) (mediation confidentiality now clearly applies to prohibit admissibility of evidence of settlement terms made for the purpose of, in the course of, or pursuant to a mediation unless the agreement falls within express statutory exceptions).
Certain charts and summaries have been received into evidence to illustrate facts brought out in the testimony of some witnesses. Charts and summaries are only as good as the underlying evidence that supports them. You should therefore give them only such weight as you think the underlying evidence deserves.
See, Federal Rules of Evidence, Rule 1006, 28 U.S.C.A.: "Summaries"; see also, United States v. Nguyen, 267 Fed.Appx. 699 (9th Cir. 2008) (the court noted that the District Court properly instructed the jury that the charts and summaries were only as good as the underlying evidence on which they were based); United States v. Poschwatta, 829 F.2d 1477 (9th Cir. 1987) (holding that admission of a chart summarizing income figures already admitted into evidence, while perhaps not the best practice, was not an abuse of discretion); United States v. Gardner, 611 F.2d 770 (9th Cir. 1980) (holding that admission of a chart summarizing the defendant's financial status was well within the discretion of the trial court pursuant to Fed.R.Evid. 611(a)); United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980) (holding that charts should not have been admitted, but that it was harmless error as the defendant had an opportunity to challenge the facts and data upon which the charts were based and the court gave a limiting instruction); United States v. Gardner, 611 F.2d 770 at *776 (noting the defendant's opportunity to cross-examine the government witness who prepared the chart and finding no reversible error in admission of chart).
An attorney has a right to interview a witness for the purpose of learning what testimony the witness will give. The fact that the witness has talked to an attorney and told that attorney what [he] [she] would testify to does not, by itself, reflect adversely on the truth of the testimony of the witness.
Cacoperdo v. Demosthenes, 37 F.3d 504 (9th Cir.1994) ("[B]oth sides have the right to interview witnesses before trial."); United States v. Rich, 580 F.2d 929 (9th Cir. 1978) ("Abuses can easily result when officials elect to inform potential witnesses of their right not to speak with defense counsel."); United States v. Black, 767 F.2d 1334 (9th Cir. 1985) ("Absent a fairly compelling justification, the government may not interfere with defense access to witnesses.") cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 557 (1985).
You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments or consult reference works for additional information.
Rowbottom v. State, 105 Nev. 472, 779 P.2d 934 (1989) (juror misconduct, in which juror conducted independent investigation of crime, which was a prejudicial error which entitled defendant to new trial even though juror did not share her findings with other jurors until penalty phase of trial); Meyer v. State, 119 Nev. 554, 80 P.3d 447 (2003) (jurors are prohibited from conducting an independent investigation and informing other jurors of the results of that investigation).