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.
The purpose of the trial is to ascertain the truth.
SOURCE/AUTHORITY - NRS 50.115(1)(a).
You are admonished that no juror may declare to a fellow juror any fact relating to this case as of his or her own knowledge, and if any juror discovers during the trial or after the jury has retired that he, she or any other juror has personal knowledge of any fact in controversy in this case, he or she shall disclose such situation to myself in the absence of the other jurors. This means that if you learn, during the course of the trial, that you were acquainted with the facts of this case or the witnesses and you have not previously told me of this relationship, you must then declare that fact to me. You communicate to the court through the bailiff/marshal.
During the course of this trial, the attorneys for both sides and court personnel, other than the bailiff/marshal, are not permitted to converse with members of the jury. These individuals are not being anti-social; they are bound by ethics and the law not to talk to you. To do so might contaminate your verdict. You are admonished, additionally, that you are not to visit the scene of any of the acts or occurrences made mention of during this trial, unless specifically directed to do so by the court. Do not undertake any investigation of the case on your own, or endeavor to research legal or factual issues on your own.
SOURCE/AUTHORITY - NRS 16.100; N.R.S .175.121.
The first sentence of the first paragraph is taken from NRS 175.121, a criminal procedural statement. However, it is appropriate for use in civil cases as well.
This is a civil case commenced by:
[Name of plaintiff], the plaintiff, against [Name of defendant], the defendant. The case is based upon a complaint to which the defendant has filed a response, which we call an answer.
Court: Does counsel for the plaintiff or defendant desire to have the complaint and answer read?
(If the pleadings are read:)
Court: Ladies and gentlemen, you should distinctly understand that the pleadings in this case are not in any sense evidence of the allegations that they contained. Each party has the burden of proving their respective claims or defenses by preponderance of the evidence. The purpose of the trial is to determine whether they will meet the burden.
SOURCE/AUTHORITY - NRS 16.090.
The trial will proceed in the following order:
First, the parties have the opportunity to make opening statements. The plaintiff makes the first opening statement. Then the defendant will be given an opportunity to make an opening statement. What is said by the attorneys in their opening statements is not evidence. The statements simply serve as an introduction or guide for you so you will know what to look for as the witnesses testify. Whether or not the attorneys present the evidence which they say they will in their opening statements will be for you to determine.
After the opening statements, each side will be given the opportunity to present evidence. The plaintiff goes first. Evidence presented by the plaintiff in support of the plaintiff's complaint is called the plaintiff's"case in chief."
After the plaintiff presents evidence, the defendant may present evidence but is not obligated to do so. This is the defendant's case in chief.
If the defendant does present evidence, the plaintiff may then present rebuttal evidence.
If the plaintiff presents rebuttal evidence the defendant may then present surrebuttal evidence.
After the evidence is concluded, I will instruct you on the law that applies in this case. You must not be concerned with the wisdom of any rule of law states in my instructions. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your oath to base a verdict upon any other view of the law than that given to you by the court.
After the instructions on the law are read to you, each party will have the opportunity to present closing arguments. Just as what is said by the attorneys in their opening statements is not evidence, what is said in closing arguments is not evidence. However, unlike opening statements, during their closing arguments the attorneys are permitted to argue to you what they think the evidence has shown, what witnesses should be believed and what inferences they think you should draw from that evidence. The plaintiff has the right to both begin and end closing arguments.
SOURCE/AUTHORITY - NRS 16.090.
Your purpose as jurors is to find and determine the facts. Under our system of civil procedure, you are the sole judge of the facts. You determine the facts from the testimony you hear and the other evidence, including exhibits introduced in court. It is up to you to determine the inferences which you feel may be properly drawn from the evidence. It is especially important that you perform your duty of determining the facts diligently and conscientiously, for ordinarily, there is no means of correcting an erroneous determination of facts by the jury.
The parties may sometimes present objections to some of the testimony or other evidence. It is the duty of a lawyer to object to evidence which he or she believes may not properly be offered and you should not be prejudiced in any way against the lawyer who makes objections on behalf of the party he or she represents. At times I may sustain objections or direct that you disregard certain testimony or exhibits. You must not consider any evidence to which an objection has been sustained or which I have instructed you to disregard.
Anything you may have seen or heard outside the courtroom is not evidence and must also be disregarded.
If counsel for the parties have stipulated to any fact, you will regard that fact as being conclusively proved as to the party or parties making the stipulation.
You must not speculate to be true any insinuations suggested by a question asked the witness. A question is not evidence and may be considered only as it supplies meaning to the answer. You must not be influenced in any degree by any personal feeling of sympathy for or prejudice against the plaintiff or defendant. Both sides are entitled to the same fair and impartial consideration.
The credibility or "believability" of a witness should be determined by his or her manner upon the stand, his or her relationship to the parties, his or her fears, motives, interests or feelings, his or her opportunity to have observed the matter to which he or she testified, the reasonableness of his or her statements and the strength or weakness of his or her recollections.
U.S. v. Lizarraga-Cedano, 191 Fed.Appx. 586 (9th Cir. 2006); Young Ah Chor v. Dulles, 270 F.2d 338 (9th Cir. 1959).
There are two kinds of evidence; direct and circumstantial. Direct evidence is proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect evidence; that is, proof of a chain of facts from which you could find that another fact exists, even though it has not been proved directly. You are entitled to consider both kinds of evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. It is for you to decide whether a fact has been proved by circumstantial evidence.
Whenever in these instructions I state that the burden, or the burden of proof, rests upon a certain party to prove a certain allegation made by him, the meaning of such an instruction is this: That unless the truth of the allegation is proved by a preponderance of the evidence, you shall find the same to be not true.
The term "preponderance of the evidence" means such evidence as, when weighed with that opposed to it, has more convincing force and from which it appears that the greater probability of truth lies therein. No statement, ruling, remark or comment which I may make during the course of the trial is intended to indicate my opinion as to how you should decide the case or to influence you in any way in your determination of the facts. At times, I may even ask questions of witnesses. If I do, it is for the purpose of bringing out matters which I feel should be brought out and not in any way to indicate my opinion about the facts or to indicate the weight I feel you should give to the testimony of the witness. I may, during the trial, take notes of the witness' testimony. You are not to make any inference from that action. I am required to prepare for legal arguments of counsel during this trial and, for that reason, I may take notes.
Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 117 S.Ct. 1953 (1997); DirecTV, Inc. v. Webb, 545 F.3d 837 (9th Cir. 2008).
The jury will not have a transcript to consult at the close of the case. However, the jury will be furnished note pads and pencils and will be allowed to take notes. I caution you, however, not to allow copious notetaking to interfere with your ability to consider the evidence as it is presented.
If you cannot hear a witness, please raise your hand as an indication. Also, if you need to go to the restroom or if you feel ill, please also raise your hand as an indication. I tend to take a short break every [number of minutes] or so, along with a lunch break of at least [time duration]. [Also, I have no objection to jurors bringing drinks into the courtroom but please be careful with them.]
SOURCE/AUTHORITY - NRS 16.130
Again, let me remind you that until this case is submitted to you:
Do not talk to each other or anyone else about it or about anyone who has anything to do with it until the end of the case when you go to the jury room to decide on your verdict.
"Anyone else" includes members of your family and your friends. You may tell them that you are a juror in a civil case, but don't tell them anything else about it until after you have been discharged as jurors by myself.
Do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone should try to talk to you, please report it to me immediately by contacting the bailiff/marshal.
Do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it.
This instruction is similar to the requirement in criminal cases. See NRS 175.401.