Ch. 1 – Judge complete opening statements


THE COURT: Good morning, Ladies and Gentlemen. Welcome back. We’re almost ready for opening statements of counsel. Before I do that, I’m going to read you some preliminary instructions that may help you outline — help you out when going through the proceeding. Before we do the opening statements of counsel and begin to take evidence, I believe it will be helpful if you were to have some preliminary instructions to follow in listening to and considering the evidence which you will hear in this case. Later, after you have heard all the evidence and closing arguments of the counsel, I will give you further instructions covering additional law which you are to follow in this case.

It is the duty of the judge to instruct you in the law, and it is your duty to follow the law as I will state it to you both now and at the conclusion of all the evidence.

First of all, it is your exclusive duties to decide all questions of fact submitted to you. In connection with this duty, you must determine the effect and value of the evidence. You must not be influenced in your decision by sympathy, prejudice or passion towards any party, witness or attorney in the case. If in these instructions or in the instructions which I give you at the conclusion of the evidence, any principle or idea is repeated or stated in varying ways no emphasis thereon is intended and none must be inferred by you. Therefore, you must not single out any particular sentence or individual point of instruction and ignore the others but, rather, you are to consider all of the instructions as a whole and are to consider each instruction in relation to all the other instructions. The fact that I give you some of the instructions now and some at the conclusion of the evidence has no significance as to their relative importance nor is the order in which I give you the instructions.

The attorneys for the parties will, of course, have active roles in the trial. They will make opening statements to you, question witnesses and make objections. And, finally, they will argue the case as a last step before you hear my final instructions and commence with the deliberations. Remember that attorneys are not witnesses. And since it is your duty to decide the case solely on the evidence which you hear in this case, you must not consider as evidence any statement of any attorney made during the trial. There is an exception; and that is, if the attorneys agree to any of that, any facts. Such agreement, stipulation or admission of fact will be brought to your attention and you may then regard such fact as being conclusively proved without the necessity of further evidence as to such fact.

If a question is asked and an objection to that question is sustained, you will then not hear the answer; and you will not speculate as to what that answer might have been or as to the reason for the objection. If an answer is given to a

question and the Court then grants a motion to strike out the answer you are to completely disregard such question and answer and not consider them for any purpose. A question in and of itself is not evidence and may be considered by you only as it supplies meaning to the answer.

Any fact in this case may be proven by either direct or circumstantial evidence. Direct evidence means exactly what the name implies. That is, it is evidence which directly proves a fact without having to infer the fact from some other fact. Direct evidence is usually the testimony given by a witness who has seen or heard the facts to which he testifies. It includes exhibits admitted into evidence during the trial.

Circumstantial evidence on the other hand is the proof of facts by direct evidencefrom which you may reasonably infer a fact in question. For example, is a question of a fact in a given case is whether or not Jonny ate the cherry pie, testimony by witness that he saw Johnny put the pie in his mouth and eat it would be direct evidence of such a fact. However, if a witness testifies that he arrived in the kitchen only to see Johnny standing there with an empty pie tin in his hand and cherry pie on his face, that would be circumstantial evidence of the fact that Johnny had eaten the pie.

The law makes no distinction between direct and circumstantial evidence as to the degree of proof required and facts may be proved by either type of evidence or combination of both. Each is accepted as a reasonable method of proof and each is respected for such convincing force as it may carry.

As jurors, you have the sole and exclusive duty to decide the credibility of witnesses who will testify in the case, which simply means that it is you who must decide whether you believe or disbelieve a particular witness and how much weight, if any, to give to the testimony of each witness. In determining these questions you will apply the

tests of truthfulness which you apply in your daily lives. These tests include the appearance of each witness on the stand; his manner of testifying; the reasonableness of the testimony; the opportunity he or she had

to see, hear and know the things concerning which he or she testified; this accuracy of  memory; frankness, or lack of it; intelligence; interest and bias, if any, together with all the facts and circumstances surrounding the testimony. Applying these tests you will assign to the testimony of each witness such weight as you deem proper. You are not required to believe the testimony of any witness simply because it was given under oath. You may believe or disbelieve all or any part of the testimony of any witness. You should not decide any issue of fact merely on the basis of the number of witnesses who testify on each side of such issue. Rather, the final test is judging evidence —

force and weight of evidence regardless of the number of witnesses on each side of an issue. The testimony of one witness believed by you is sufficient to prove any fact. Also, discrepancies in a witnesses testimony or between his testimony and that of others, if there are any, does not necessarily mean that you should disbelieve the witness as people commonly forget facts or recollect them erroneously after the passage of time. You are certainly all aware of the fact that two persons who are witnesses to the incident may often see or hear it differently. In considering discrepancy in a witness’s testimony, you should consider whether such discrepancy concerns an important fact or trivial one.

If you conclude that a witnesses willfully lied in his testimony as to a material fact you  may distrust all of his testimony and you would then have the right reject all of his testimony unless from all the evidence you believe that the probability of truth favors his testimony in other particulars.

Burden of proof. The person who claims that certain facts exist must prove them by a preponderance of the evidence. This obligation is known as the burden of proof. The burden of proof is upon the plaintiff to prove facts necessary to his case by a preponderance of the evidence. Preponderance. Preponderance of the evidence is the greater weight of the evidence. That is, evidence that you believe because it outweighs or overbalances in your

 minds the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive or of greater probative value. It is the quality of the evidence that must be — must be weighed. Quality mayor may not be identical with quantity and the greater number of witnesses. In determining whether an issue has been proven by a preponderance of the evidence, you should consider all of the evidence regardless of who produced it. If

the weight of the evidence is equally balanced or if you are unable to determine which sideof an  issue has to preponderance, the partywho has the burden of proof has not established such issue by a preponderance of evidence.

During the course of the trial, certain testimony may be read into the evidence from a document or played by a videotape which will be referred to as a deposition. A deposition is many testimony which has been taken under oath before the trial and typed up into booklet for m or by video for use at trial. Likewise, certain questions known as interrogatories and the answer hereto, may be read into evidence.

An interrogatory is a question which was asked by one-party to another in writing before the trial and the answer to which was given under oath and in writing. Questions and answers in depositions and interrogatories and their answers are to be considered by you the same as if all of such questions and answers were testified to here in court. If statements in a deposition differ from the testimony given by the same witness in the courtroom, you  may consider them to test the credibility of such witness.

During the course of this trial, after opening statements, my staff attorney is going to provide you with notebooks. I’m going to permit note-taking. The Court will provide you with pencil and notepad for your convenience. For many years, the practice of juror note”‘taking was discouraged because the taking of notes may distract your mind from the evidence that is being presented while you are busy taking notes. The other reason was that the best note-taker might have more influence on other jurors than is appropriate. I suggest you take notes when there is a pause in testimony. It is your responsibility to listen to the testimony. Remember, each of you must individually determine the issues in this case. At the end of the case in deliberations, your collective minds will then reach a verdict. Please understand that testimony cannot be repeated nor the trial delayed to permit accurate note-taking. There is no requirement that you take notes. Please place your name on the front of your notepad. The notepad will be collected at lunch break and every afternoon by the bailiff at the evening recess. Your notes will be redistributed to you when we reconvene. You may not remove the notepad from the courtroom. However, during jury deliberations you may have your notes with you in the jury room. All notes are confidential and for consideration of the jury only. After you have concluded your deliberations, your notes will be collected and destroyed.

One other note before we begin opening statements, one of the parties asked me to inform you of the fact that you may be aware that during the pendency of the case none of the attorneys are permitted to speak to you. And, obviously, in this building during lunch breaks there may be occasion where you run into one of the attorneys or one of the parties in the case in the building. Please don’t be offended. They are not permitted to speak to you until this case is over with. So, please, don’t feel hurt if they don’t say hi to you or talk to you. That being said, I’m going to allow the parties to begin with opening statements.

 Mr. August, are you prepared with your opening statement?