Civil Jury Instructions; Civil Voir Dire; Civil Preliminary; Criminal Jury Instructions; Criminal Voir Dire; Criminal Preliminary; Rule 16b Scheduling Order

=== Civil Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION v. Plaintiff, Defendant. No. ______________________________________________________________________________ Members of the jury, Now that you have heard all the evidence and the arguments of the lawyers, it is my duty to instruct you on the law which applies to this case. These instructions will be in three parts: first, the instructions on general rules that define and control the jury' s duties; second, the instructions that state the rules of law you must apply, i.e., what the plaintiff or the defendant must prove to establish their respective positions; and third, some rules for your deliberations. A copy of these instructions will be available for you in the jury room to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you must apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that you must decide the case solely on the evidence before you and according to the law. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. It is your duty to determine the facts, and in so doing you must consider only the evidence I have admitted in the case. The term “evidence” includes the sworn testimony of the witnesses, regardless of who may have called them; all exhibits received in evidence, regardless of who may have produced them; all facts which may have been admitted or stipulated by the parties; and all facts and events which may have been judicially noticed. Remember that any statements, objections, or arguments made by the lawyers are not evidence in the case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you. Also, during the course of a trial I may have made comments to the lawyers, or asked questions of a witness, or admonished a witness concerning the manner in which he or she should respond to the questions of counsel. Do not assume from anything I may have said that I have any opinion concerning any of the issues in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts. So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony, exhibits [depositions, answers to interrogatories, admissions] and stipulations of the parties as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case. You may also consider either direct or circumstantial evidence. Direct evidence is that contained in the testimony of a witness to a fact, the knowledge of which the witness acquired through his or her own senses. Indirect or circumstantial evidence is that knowledge which is inferred from known facts. It is not permissible to draw an inference from another inference. However, it is permissible to draw reasonable inferences from proven facts. Sometimes direct evidence falls short of proving the final or all-important fact which a party seeks to prove. However, it is sometimes possible to prove facts of such significant or related character that the final or conclusive fact can readily be inferred from what has been proven. This is what is meant by proving a case by circumstantial evidence. Now, I have said that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or “believability” of the witnesses and the weight to be given to their testimony. In weighing the testimony of a witness you should consider each witness' relationship to the parties; the witness' interest, if any, in the outcome of the case; their manner of testifying; each witness' opportunity to observe or acquire knowledge concerning the facts about which he or she testified; the witness' candor, fairness and intelligence; 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. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood. A witness may be discredited or “impeached” by contradictory evidence; or by evidence that at some other time the witness has said or done something, or has failed to say or do something which is inconsistent with the witness’s present testimony. If you believe that any witness has been impeached and discredited, it is your exclusive province to give the testimony of that witness such credibility or weight, if any, as you may think it deserves. You are not required to accept testimony, even though the testimony is uncontradicted and the witness is not impeached. You may decide, because of the witness’s bearing and demeanor, or because of the inherent improbability of his or her testimony, or for other reasons sufficient to you, that such testimony is not worthy of belief. On the other hand, the weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. You may find that the testimony of a smaller number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary. The burden is on the plaintiff in a civil action, such as this, to prove every essential element of his/her claim by a preponderance of the evidence. If the proof should fail to establish any essential element of plaintiff' s claim by a preponderance of the evidence in the case, the jury should find for the defendant(s) as to that claim. [The defendants have alleged certain affirmative defenses which will be discussed later in these instructions. The burden of establishing the essential facts as to these defenses is on the defendants.] To "establish by a preponderance of the evidence" means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. This rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That is a stricter standard, i.e., it requires more proof than a preponderance of evidence. The reasonable doubt standard does not apply to a civil case and you should therefore put it out of your mind. An expert witness is one who possesses special or technical knowledge or skill upon the subject about which he or she testifies, that is, upon a subject with which ordinary men or women are not familiar. An expert witness differs from the ordinary witness in that the expert is permitted to express opinions as to the results of proven facts, although the expert may also testify as to facts themselves, as any other witness. Expert opinions are not to be accepted as facts. Those opinions should be carefully weighed by the jury, with regard to the expert’s education, training, experience, and sources of knowledge, as well as with regard to his or her prejudices, if any appear. Expert witnesses are frequently paid special compensation by the party for whom they testify. Such compensation is entirely proper. Yet, because of it the jury should receive the expert’s testimony with caution and weigh it carefully. Questions have been asked in which an expert witness was asked to assume that certain facts were true and to give an opinion based upon that assumption. This is called a hypothetical question. If any fact assumed in the questions has not been established by the evidence, you should determine the effect of that omission upon the value of the opinion. During the trial of this case, certain testimony has been presented to you by way of deposition, consisting of sworn recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason, cannot be present to testify from the witness stand may be presented in writing under oath (or on a video recording played on a television set). Such testimony is entitled to the same consideration, and is to be judged as to credibility, and weighed, and otherwise considered by the jury, in so far as possible, in the same way as if the witness had been present, and had testified from the witness stand. During the course of the trial you have heard reference made to the word "Interrogatory. " An interrogatory is a written question asked by one party of another party or of any witness who must answer it under oath in writing. You are to consider interrogatories and the answers thereto the same as if the questions had been asked and answered here in court. There has been introduced into evidence certain interrogatories -- that is, questions, together with answers signed and sworn to by the other party. A party is bound by his sworn answers. By introducing an opposing party' s answers to interrogatories, however, a party does not bind himself to these answers, and he may challenge them in whole or in part or may offer contrary evidence. Some of you may have taken notes during the trial. Once you retire to the jury room you may refer to your notes, but only to refresh your memory of the witnesses' testimony. You are free to discuss the testimony of the witnesses with your fellow jurors, but each of you must rely upon your own individual memory as to what a witness did or did not say. In discussing the testimony, you may not read your notes to your fellow jurors or otherwise tell them what you have written. You should never use your notes to persuade or influence other jurors. Your notes are not evidence. Your notes should carry no more weight than the unrecorded recollection of another juror. A stipulation of facts is an agreement among the parties that a certain fact is true. You must regard such agreed facts as true. The purpose of the law of damages is to award, as far as possible, just and fair compensation for the loss, if any, which resulted from the defendants' conduct. Just because I am instructing you on how to award damages does not mean that I have any opinion on whether or not the defendant(s) should be liable. If you find that the defendants are liable on the claims, as I have explained them, then you must award the plaintiff sufficient damages to fairly and justly compensate him for any injury proximately caused by the defendants' conduct. These are known as compensatory or actual damages. Compensatory damages seek to make the plaintiff whole -- that is, to compensate him for the damage that he has suffered. Furthermore, compensatory damages are not limited merely to expenses that plaintiff may have borne. A prevailing plaintiff is entitled to compensatory damages for the physical injury, pain and suffering, mental anguish, shock and discomfort that he has suffered because of a defendant' s conduct. I remind you that you may award compensatory damages only for injuries that a plaintiff proves by a preponderance of the evidence were proximately caused by a defendant' s wrongful conduct. The damages that you award must be fair and reasonable, neither inadequate nor excessive. You should not award compensatory damages for speculative injuries or based on sympathy, but only for those injuries that a plaintiff has actually suffered or likely to suffer in the future. In awarding compensatory damages, if you decide to award them, you must be guided by dispassionate commonsense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require a plaintiff to prove the amount of his losses with mathematical precision, but only with as much accuracy as the circumstances permit. In addition to actual damages, the law permits the jury, under certain circumstances, to award the injured person punitive damages, in order to punish the wrongdoer for some extraordinary misconduct, and to serve as an example or warning to the wrongdoer and others not to engage in that type of conduct in the future. Whether to award punitive damages, in addition to actual damages, is a matter exclusively within the discretion of you, the jury. If you find from a preponderance of the evidence that the plaintiff is entitled to a verdict for actual or nominal damages, and you further find that the conduct of the defendants which proximately caused injury or damage to the plaintiff, was maliciously, or wantonly, or oppressively done, than you may award an amount you unanimously agree to be proper as punitive damages. An act or a failure to act is "maliciously" done, if prompted or accompanied by ill will, or spite, or grudge toward the injured person. An act or a failure to act is "wantonly" done, if done in reckless or callous disregard of, or indifference to, the rights of the injured person. An act or a failure to act is "oppressively" done, if done in a way or manner that injures or damages, or otherwise violates the rights of another person with unnecessary harshness or severity, as by misuse or abuse of authority or power, or by taking advantage of some weakness or misfortune of another person. In this case, there are four individual defendants. You must make the decision whether to award punitive damages and, if so, the amount awarded, as to each individual defendant separately. In this regard there is no joint responsibility. Punitive damages may be allowed only if you should first unanimously award the plaintiff either actual or nominal damages against the particular defendant. The amount of such punitive damages, when awarded, must be fixed with calm discretion and sound reason, and must never be awarded, or fixed in amount, because of any sympathy, or bias, or prejudice with regard to any party in this case. It is entirely within your discretion whether or not punitive damages should be awarded. You may decide that even though compensatory or nominal damages have been awarded, you believe that no punitive damages are called for. There is no objective yardstick for measuring the amount of punitive damages that should be awarded against a particular defendant. You will have to use your own common sense and experience and determine what amount would be appropriate to punish the defendant and to create a deterrent example. The amount of punitive damages should be fair and reasonable and should be proportionate to the need to punish the defendant and to deter him and others from like wrongful conduct. You must consider the degree of reprehensibility of the defendant' s conduct and the relationship between the amount of punitive damages to the actual harm inflicted on the plaintiff. The amount of punitive damages awarded should not be based on whim or on unrestrained imagination. In all instances, you are to use sound discretion in fixing an award of damages, drawing reasonable inferences where you deem appropriate from the facts and circumstances in evidence. If you find, after considering all the evidence presented, that the plaintiff is entitled to a verdict in accordance with these instructions, but do not find the plaintiff suffered substantial or actual damages, you may award the plaintiff "nominal damages." "Nominal damages" are awarded as recognition that the plaintiff' s rights have been violated. You would award nominal damages if you conclude that the only injury that a plaintiff suffered was the deprivation of his constitutional rights, without any resulting physical, emotional or financial damage. You award nominal damages in the compensatory damages blank. You may not award both nominal and compensatory damages to a plaintiff; either he was tangibly injured, in which case you must award compensatory damages, or else he was not, in which case you may award nominal damages. Nominal damages may not be awarded for more than a token sum such as $1.00. When you retire, you should elect one member of the jury as your foreperson. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after considering all the evidence, discussing it fully with the other jurors, and listening to the views of your fellow jurors. Do not be afraid to change your opinion if you think you are wrong. But do not come to a decision simply because other jurors think it is right. This case has taken a great deal of time and effort to prepare and try. There is no reason to think that it could be better tried or that another jury is better qualified to decide it. It is important therefore that you reach a verdict if you can do so conscientiously. Therefore, if it looks at some point as if you may have difficulty in reaching a unanimous verdict, and if the greater number of you are agreed on a verdict, the other jurors may want to ask themselves about the basis for their feelings when a substantial number have reached a different conclusion. You should not hesitate to reconsider your views from time to time and to change them if you are persuaded that this is appropriate. It is important that you attempt to return a verdict but, of course, only if each of you can do so after having made his or her own conscientious determination. Do not surrender an honest conviction as to the weight and effect of the evidence simply to reach a verdict. If it becomes necessary during your deliberations to communicate with me, you may send a note through the marshal, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or orally here in open court. Remember that you are not to tell anyone -- including me -- how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. After you have reached a verdict, your foreperson will fill in the forms that have been provided for you, sign and date the forms and advise the marshal that you are ready to return to the courtroom.

=== Civil Voir Dire ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION _____________________________________________________________________________ Plaintiff, v. Defendant. No. _____________________________________________________________________________ As prospective jurors of this jury, you will be asked questions by me and the attorneys to determine whether you are to be selected to try this case. The purpose of the questioning is to enable the court to determine whether or not any prospective juror should be excused for cause. In addition, each party has a right to excuse a certain number of jurors without assigning any cause. If you are excused you should not consider it a reflection on you in any way. The questions asked of you are not designed to pry into your personal affairs, but to discover if you have any knowledge of this particular case, have any preconceived opinion which you cannot lay aside, or if you have had any experience in life that might cause you to identify yourself with any of the parties. These questions are necessary to assure each party an impartial jury. This case is expected to take days to try; will this fact present a special problem to any member of the panel? This is an action for (declaratory, injunctive and monetary relief) brought by plaintiff ____, against the defendant ______________. Plaintiff asserts ________________________. Has any member of the panel heard or read anything about this case? Counsel for the plaintiff is ___ of ____, in ___ and counsel for the defendant is _____ of ____, in _____. Does any member of the panel or his or her immediate family know or has had any business dealings with any of the counsel or their law firms? Appearing as a representative for the plaintiff is ____________________________; appearing as a representative for the defendants is ________________________________. Is any member of the panel or his or her immediate family personally acquainted with, related to, had any business dealings, employed by, or had any similar relationship or business connection with, or is a stockholder of any party in this case? Prospective witnesses in this case are (read from pre-trial order) Does any member of the panel know any of the prospective witnesses? Has any member of the panel ever served as a juror in a criminal or civil case, or as a member of a grand jury either in the federal or state court? Have you or anyone in your immediate family ever participated in a lawsuit as a party or in any other capacity? If you are selected to sit on this case, will you be able to render a verdict solely on the evidence presented at the trial and in the context of the law as I will give it to you in the instructions, disregarding any other ideas, notions, or beliefs about the law that you may have encountered in reaching your verdict? Does any member of the panel have any special disability or problem that would make it difficult or impossible to serve as a member of the jury? I will now permit counsel to conduct additional voir dire examination. Ladies and gentlemen, having heard the questions put to you by the court and counsel, do you know of any other reason why you could not sit on this jury and render a fair and impartial verdict based upon on the evidence presented and in the context of the court' s instruction on the law? Counsel may mark their challenges.

=== Civil Preliminary ===

Members of the Jury: Now that you have been sworn, I will briefly tell you something about your duties as jurors and give you some preliminary instructions to guide you in your participation in the trial. At the end of the trial I will give you more detailed instructions, and those instructions will control your deliberations. It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. You must not take anything I may say or do during the trial as indicating what your verdict should be. Don' t be influenced by my taking notes at times. What I write down may have nothing to do with what you will be concerned with at this trial. The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into evidence as exhibits, and any facts that the lawyers agree upon or stipulate to or which I may instruct you to accept. Certain things are not evidence and must not be considered by you. I will list them for you now: 1. 2. 3. 4. Statements, arguments and questions by the attorneys are not evidence. 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 my 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. Testimony that I have excluded or instructed you to disregard is not evidence and must not be considered. 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. 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. The requirement does not apply to a civil case; therefore, you should put it out of our mind. I will now say 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. Second, do not read or listen to anything touching on this case in any way. If anyone should try 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 you wish, you may take notes. But if you do, leave them in the jury room when you leave at night. And remember that they are for your own personal use. 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 witnesses and defendant may cross-examine them. Then defendant will present witnesses and plaintiff may cross-examine. After that, the attorneys will make their closing arguments to summarize and interpret the evidence for you and I will give you instructions on the law. You will then retire to deliberate on your verdict.

=== Criminal Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION __________________________________________________________________ UNITED STATES OF AMERICA, Plaintiff, VS. Defendant. CR. NO. __________________________________________________________________ Members of the Jury: It is now my duty to instruct you on the rules of law that you must follow and apply in deciding this case. When I have finished you will go to the jury room and begin your discussions -- what we call your deliberations. It will be your duty to decide whether the government has proved beyond a reasonable doubt the specific facts necessary to find the defendant guilty of the crimes charged in the indictment. You must make your decision only on the basis of the testimony and other evidence presented here during the trial; and you must not be influenced in any way by either sympathy or prejudice for or against the defendant or the government. You must also follow the law as I explain it to you whether you agree with that law or not; and you must follow all of my instructions as a whole. You may not single out, or disregard, any of the Court's instructions on the law. The indictment or formal charge against the defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require the defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt as to the charge in the indictment, and if it fails to do so you must find the defendant not guilty as to that charge. While the government's burden of proof is a strict or heavy burden, it is not necessary that a defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning a defendant's guilt. A "reasonable doubt" is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, 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. If you are convinced that the defendant has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so. As stated earlier you must consider only the evidence that I have admitted in the case. The term "evidence" includes the testimony of the witnesses, the exhibits admitted in the record and any facts of which the court has taken judicial notice. Remember that anything the lawyers say is not evidence in the case. It is your own recollection and interpretation of the evidence that controls. What the lawyers say is not binding upon you. In considering the evidence you may make deductions and reach conclusions which reason and common sense lead you to make; and you should not be concerned about whether the evidence is direct or circumstantial. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. "Circumstantial evidence" is proof of a chain of facts and circumstances indicating that the defendant is either guilty or not guilty. The law makes no distinction between the weight you may give to either direct or circumstantial evidence. Also you should not assume from anything I may have said or done that I have any opinion concerning any of the issues in this case. Except for my instructions to you, you should disregard anything I may have said in arriving at your own decision concerning the facts. Single Defendant Multiple Crimes (2.01A) The defendant has been charged with ___ crimes, specifically, ____ counts of _________________. The number of charges is no evidence of guilt, and this should not influence your decision in any way. It is your duty to separately consider the evidence that relates to each charge, and to return a separate verdict for each one. For each charge, you must decide whether the government has presented proof beyond a reasonable doubt that the defendant is guilty of that particular charge. Your decision on the one charge, whether it is guilty or not guilty, should not influence your decision on any of the other charges. 7.19 Judicial Notice You are instructed that the Court has taken judicial notice of the fact that _________ is located in Shelby County, Tennessee, which is located in the Western District of Tennessee. Since you are the fact-finders in this case, you may, but are not required to, accept this fact as conclusively established. Stipulations While we were hearing evidence, you were told that the government and the defendant agreed, or stipulated to certain facts. This means simply that the government and the defendant both accept these facts. There is no disagreement over these facts, so there was no need for evidence by either side on these points. You may accept these facts, even though nothing more was said about them one way or the other. This, of course, is all for you the jury to decide. The parties in this case have stipulated that the defendant, prior to the dates alleged in the indictment, has been convicted of a crime punishable by imprisonment for a term exceeding one year. Number of Witnesses Credibility Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. Also, the number of witnesses testifying concerning any particular dispute is not controlling. You may decide that the testimony of a smaller number of witnesses concerning any fact in dispute is more believable than the testimony of a larger number of witnesses to the contrary. In deciding whether you believe or do not believe any witness, I suggest that you ask yourself a few questions: Did the person impress you as one who was telling the truth? Did he or she have any particular reason not to tell the truth? Did he or she have a personal interest in the outcome of the case? Did the witness seem to have a good memory? Did the witness have the opportunity and ability to observe accurately the things he or she testified about? Did he or she appear to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? You should also ask yourself whether there was evidence tending to prove that the witness testified falsely concerning some important fact; or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something, which was different from the testimony he or she gave before you during the trial. The fact that a witness has been convicted of a felony offense is another factor you may consider in deciding whether you believe his testimony. You should keep in mind, of course, that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people naturally tend to forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether that misstatement was simply an innocent lapse of memory or an intentional falsehood; and that may depend on whether it has to do with an important fact or with only an unimportant detail. 7.02B Defendant's Testimony You have heard the defendant testify. Earlier, I talked to you about the "credibility" or the "believability" of the witnesses. And I suggested some things for you to consider in evaluating each witness's testimony. You should consider those same things in evaluating the defendant's testimony. A defendant has an absolute right not to testify. The fact that he did not testify cannot be considered by you in any way. Do not even discuss it in your deliberation. Remember that it is up to the government to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that he is innocent. Law Enforcement Witnesses You have heard the testimony of law enforcement officials. The fact that a witness may be employed by the city or county government as a law enforcement official does not mean that his or her testimony is necessarily deserving of more or less consideration or greater or lesser weight than that of an ordinary witness. It is your decision, after reviewing all the evidence, whether to accept the testimony of the law enforcement witnesses and to give to that testimony whatever weight, if any, you find it deserves. 7.03 Expert Testimony You have heard the testimony of _______, ___________ expert. An expert witness has special knowledge or experience that allows the witness to give an opinion. You do not have to accept an expert's opinion. In deciding how much weight to give it, you should consider the witness's qualifications and how he reached his conclusions. Remember that you alone decide how much of a witness's testimony to believe, and how much weight it deserves. Indictment Not Guilty Plea I told you at the outset that this case was initiated through an indictment. An indictment is but a formal method of accusing the defendant of a crime. It includes the government's theory of the case, and we will be going over in a few minutes the substance of the indictment. The indictment is not evidence of any kind against an accused. The defendant has pleaded not guilty to the charges contained in the indictment. This plea puts in issue each of the essential elements of the offense as described in these instructions and imposes upon the government the burden of establishing each of these elements by proof beyond a reasonable doubt. I will read the indictment to you once again so that you are well aware of the charges made in the indictment. The indictment reads: You will note that the indictment charges that the offense was committed "on or about" a certain date. The government does not have to prove with certainty the exact date of the alleged offense. It is sufficient if the government proves beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. I caution you, members of the jury, that you are here to determine from the evidence in this case whether the defendant is guilty or not guilty of Counts ____________ of the indictment. The defendant is on trial only for the specific offenses alleged in the indictment. Also, the question of punishment should never be considered by the jury in any way in deciding the case. If the defendant is convicted the matter of punishment is for the judge to determine. You are here to determine the guilt or innocence of the accused defendant from the evidence in this case. You are not called upon to return a verdict as to the guilt or innocence of any other person or persons. You must determine whether or not the evidence in the case convinces you beyond a reasonable doubt of the guilt of the accused without regard to any belief you may have about guilt or innocence of any other person or persons. Any verdict you reach in the jury room, whether guilty or not guilty, must be unanimous. In other words, to return a verdict you must all agree. Your deliberations will be secret; you will never have to explain your verdict to anyone. It is your duty as jurors to discuss the case with one another in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after full consideration of the evidence with the other members of the jury. While you are discussing the case do not hesitate to re-examine your own opinion and change your mind if you become convinced that you were wrong. But do not give up your honest beliefs solely because the others think differently or merely to get the case over with. Remember, that in a very real way you are judges -- judges of the facts. Your only interest is to seek the truth from the evidence in the case. When you go to the jury room you should first select one of your members to act as your foreperson. The foreperson will preside over your deliberations and will speak for you here in court. A form of verdict has been prepared for your convenience. The verdict form will be placed in a folder and handed to you by the marshal. At any time that you are not deliberating (i.e., when at lunch or during a break in deliberations), the folder and verdict form should be delivered to the marshal who will deliver it to the courtroom clerk for safekeeping. [EXPLAIN VERDICT] You will take the verdict form to the jury room and when you have reached unanimous agreement you will have your foreperson fill in the verdict form, date and sign it, and then return to the courtroom. If you should desire to communicate with me at any time, please write down your message or question and pass the note to the marshal who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. I caution you, however, with regard to any message or question you might send, that you should not tell me your numerical division at the time. If you feel a need to see the exhibits which are not being sent to you for further examination, advise the marshal and I will take up your request at that time. [ANY JURY ALTERNATES NOT ALREADY EXCUSED, SHOULD BE EXCUSED AT THIS TIME]. You may now retire to begin your deliberations.

=== Criminal Voir Dire ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ____________________________________________________________________________ UNITED STATES OF AMERICA, v. Plaintiff, Defendant. No. ______________________________________________________________________________ _______________________________________________________________________ As prospective jurors of this jury, you will be asked questions by me and the attorneys to determine whether you are to be selected to try this case. The purpose of the questioning is to enable the court to determine whether or not any prospective juror should be excused for cause. In addition, each party has a right to excuse a certain number of jurors without assigning any cause. If you are excused you should not consider it a reflection on you in any way. The questions asked of you are not designed to pry into your personal affairs, but to discover if you have any knowledge of this particular case, have any preconceived opinion which you cannot lay aside, or if you have had any experience in life that might cause you to identify yourself with any of the parties. These questions are necessary to assure each party an impartial jury. This case is expected to take days to try; will this fact present a special problem to any member of the panel? This is a criminal case in which the defendant[s] has been charged by indictment with the following: (read or summarize the indictment) Has any member of the panel heard or read anything about this case? Counsel for the government is ________ and counsel for the defendant is ______________. Does any member of the panel or his or her immediate family know or have had any business dealings with any of the counsel or their law firms? Acting as a representative for the United States is ____________________________, and the defendant is _____________________. Is any member of the panel or his or her immediate family personally acquainted with, related to, had any business dealings, or had any similar relationship or business connection with any of the parties in this case? Prospective witnesses in this case are (read): Does any member of the panel know any of the prospective witnesses? Has any member of the panel ever served as a juror in a criminal or civil case, or as a member of a grand jury either in the federal or state court? Have you, any member of your family, or any close friend ever been employed by a law enforcement agency? If you answer Yes to [either of] the following question[s], or if you do not understand the question[s], please come forward, be seated in the well of the courtroom, and be prepared to discuss your answer with the court and counsel at the bench: A. Have you ever been involved, in any court, in a criminal matter that concerned yourself, any member of your family, or a close friend, either as a defendant, a witness, or a victim? B. [Only if the charge to crime relates to illegal drugs or narcotics, ask:] Have you had any experience involving yourself, any member of your family, or any close friend that relates to the use or possession of illegal drugs or narcotics? If you are selected to sit on this case, will you be able to render a verdict solely on the evidence presented at the trial and in the context of the law as I will give it to you in the instructions, disregarding any other ideas, notions, or beliefs about the law that you may have encountered in reaching your verdict? Does any member of the panel have any special disability or problem that would make it difficult or impossible to serve as a member of the jury? I will now permit counsel to conduct additional voir dire examination. 2 Ladies and gentlemen, having heard the questions put to you by the court and counsel, do you know of any other reason why you could not sit on this jury and render a fair and impartial verdict based upon on the evidence presented and in the context of the court' s instruction on the law? Counsel may mark their challenges. 3

=== Criminal Preliminary ===

Members of the Jury: Now that you have been sworn, I will briefly tell you something about your duties as jurors and give you some preliminary instructions to guide you in your participation in the trial. At the end of the trial I will give you more detailed instructions, and those instructions will control your deliberations. It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. You must not take anything I may say or do during the trial as indicating what your verdict should be. Don' t be influenced by my taking notes at times. What I write down may have nothing to do with what you will be concerned with at this trial. The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into evidence as exhibits, and any facts that the lawyers agree upon or stipulate to or which I may instruct you to accept. Certain things are not evidence and must not be considered by you. I will list them for you now: 1. 2. 3. 4. Statements, arguments and questions by the attorneys are not evidence. 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 my 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. Testimony that I have excluded or instructed you to disregard is not evidence and must not be considered. 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. 2 As you know, this is a criminal case. There are three basic rules about a criminal case that you must keep in mind. First, the defendant is presumed innocent until proven guilty. The indictment against the defendant brought by the government is only an accusation, nothing more. It is not proof of guilt or anything else. The defendant, therefore, starts out with a clean slate. Second, the burden of proof is on the government until the very end of the case. The defendant has no burden to prove his or her innocence, or to present any evidence, or to testify. Since the defendant has the right to remain silent, the law prohibits you from arriving at your verdict by considering that the defendant may not have testified. Third, the government must prove the defendant' s guilt beyond a reasonable doubt. I will give you further instructions on this point later, but bear in mind that in this respect a criminal case is different from a civil case. 3 In this case the defendant is charged with _________________. 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 of the offense that the government must prove to make its case. [SUMMARIZE THE ELEMENTS OF THE OFFENSE] 4 I will now say 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. Second, do not read or listen to anything touching on this case in any way. If anyone should try 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 you wish, you may take notes. But if you do, leave them in the jury room when you leave at night. And remember that they are for your own personal use. 5 The trial will now begin. First, the government will make an opening statement, which is simply an outline to help you understand the evidence as it comes in. Next, the defendant' s attorney may, but does not have to, make an opening statement. Opening statements are neither evidence nor arguments. The government will then present its witnesses, and counsel for the defendant may cross- examine them. Following the government' s case, the defendant may, if he [she] wishes, present witnesses whom the government may cross-examine. After all the evidence is in, the attorneys will present their closing arguments to summarize and interpret the evidence for you, and the court will instruct you on the law. After that, you will retire to deliberate on your verdict. 6 We are about to take our first break during the trial and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial or anyone else. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, remember to keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the marshal to give to me. I may not repeat these things to you before every break that we take, but keep them in mind throughout the trial. 7

=== Rule 16b Scheduling Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION v. Plaintiff, Defendant. No. RULE 16(b) SCHEDULING ORDER Pursuant to the scheduling conference set by written notice, the following dates were established as the final dates for: JOINING PARTIES: for Plaintiff for Defendant AMENDING PLEADINGS: for Plaintiff for Defendant COMPLETING ALL DISCOVERY: (a) EXPERT DISCLOSURE (Rule 26): (i) Plaintiff' s Rule 26 Expert: (ii) Defendant' s Rule 26 Expert: (iii) Supplementation under Rule 26(e): (b) DOCUMENT PRODUCTION, INTERROGATORIES and REQUESTS for (c) (d) ADMISSIONS: DEPOSITIONS: MOTIONS TO COMPEL DISCOVERY: to be filed and served within forty-five days of the default or the service of the response, answer or objection, which is the subject of the motion, unless the time for filing of such motion is extended for good cause shown, or the objection to the default, response, answer or objection shall be waived. FILING DISPOSITIVE MOTIONS: FINAL LISTS OF WITNESSES AND EXHIBITS (Rule 26(a)(3 : (a) (b) for Plaintiff: for Defendant: Parties shall have ____ days after service of final lists of witnesses and exhibits to list objections under Rule 26(a)(3). This trial is expected to last days and will be SET for [NON-JURY or JURY TRIAL] on . A pretrial conference will be conducted on , at .m. A joint pretrial order, jury instructions and motions in limine are due on . Absent good cause shown, the scheduling dates set by this order will not be modified or extended. ______________________________ J. DANIEL BREEN UNITED STATES DISTRICT JUDGE