Order Regarding General Practice and Trial Procedures before Judge Watson; Criminal Jury Instructions; Civil Jury Instructions

=== Order Regarding General Practice and Trial Procedures before Judge Watson ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BOULEVARD, ROOM C-461 HONOLULU, HAWAI‘I 96850 CHAMBERS OF DERRICK K. WATSON UNITED STATES DISTRICT JUDGE TELEPHONE (808) 541-1470 FAX (808) 541-1475 ORDER REGARDING GENERAL PRACTICE AND TRIAL PROCEDURES BEFORE JUDGE WATSON REQUESTS FOR TELEPHONIC APPEARANCES: All hearings before Judge Watson are to be attended by counsel, in person, unless prior leave is timely sought from and granted by the court to the contrary. USE OF ELECTRONIC DEVICES: Pursuant to the Order Adopting Electronic Device Policy, effective March 18, 2014, any person may bring into the courthouse an electronic device, such as a cellular phone, smartphone, laptop computer, tablet computer, or similar functioning device having wireless communications capability. Any such device is subject to security inspection. Inside a courtroom, no person may use an electronic device for any purpose, except attorneys of record, who are authorized to use an electronic device only in connection with a then ongoing, case-related proceeding, and only upon approval by the court. Photography and audio and video recording are prohibited in the courthouse at all times. Notwithstanding the District Court’s general policy, a judge may restrict the use of any electronic device in any or all proceedings before that judge for any reason. An attorney of record in a case before Judge Watson is not authorized by this order to bring any electronic device into the courthouse for a matter other than a hearing before Judge Watson or a case-related conference with Judge Watson. 1 FILED IN THEUNITED STATES DISTRICT COURT DISTRICT OF HAWAIILucy H. Carrillo, Clerk of CourtJun 22, 2023, 2:13 pm No device may disrupt any court proceedings. For example, cell phones are always to be turned off upon entering the courtroom and turned on only with the permission of the court. In no event may any camera or audio/video equipment be used in Judge Watson’s courtroom or chambers. Judge Watson may modify these general provisions at his discretion in specific cases or for specific proceedings. Anyone found to be in violation of these provisions will be subject to sanctions. COMMUNICATIONS WITH THE COURT Except as expressly permitted by this Order or the Local Rules of Practice for the United States District Court for the District of Hawai‘i, no party, whether proceeding with or without counsel, may communicate ex parte with Judge Watson or any of his staff about any case pending before Judge Watson without prior leave to do so. Anyone found to be in violation of this provision without good cause will be subject to sanctions. This provision shall not prevent counsel in a proceeding pending before Judge Watson from communicating with his Courtroom Manager for purposes of pursuing hearing or trial continuances or other similar scheduling relief. TRIAL PROCEDURES: 1. Trial Schedule: Except for the day(s) of jury selection, jury trial begins each day at 8:30 a.m. and runs until 1:30 p.m., unless otherwise announced. There is no lunch break taken during trial hours. Jurors and counsel are advised to bring a snack for consumption during a break. Short breaks are taken during the trial at various intervals. Certain days for jury trial may extend beyond 1:30 p.m. when the judge deems it necessary. For jury selection, the trial day starts at 9:00 a.m., a lunch break will be taken from approximately 12:00 noon to 1:30 p.m., and the day will conclude by 4:30 p.m. Non-jury trials begin each day at 8:30 a.m. and end at 1:30 p.m. Trial hours are sometimes longer for non-jury trials. 2. Voir Dire: The court conducts the general voir dire and will incorporate special voir dire based on questions that the parties submit. Each side will then have a maximum of twenty (20) minutes for voir dire which shall 2 3. 4. include both general and individual questioning of the jurors. Peremptory challenges: Challenges shall be submitted using the open, alternate-strike method on a form to be distributed by the court. Juror note taking: Jurors will be permitted to take notes during trial, if they desire to do so. The court will provide notebooks and pens. These notebooks will be left face-down on the jurors’ chairs when they leave the courtroom. The jurors may, if they wish, take their notes into the jury deliberation room. After the conclusion of the trial, these notes will be destroyed. 5. Motions in limine: The briefing schedule for motions in limine shall be as follows: motions in limine shall be due three (3) weeks before the start of trial; responses shall be due two (2) weeks before the start of trial; no reply will be permitted. Motions in limine will be heard, in general, at the Final Pretrial Conference before the undersigned. The page limit for motions in limine and any opposition shall be five (5) pages. Pursuant to Local Rule 7.8, counsel shall meet and confer with respect to any motion in limine contemplated for filing at least seven (7) days prior to filing of the motion. 6. Use of demonstrative aids during opening statement, witness examination or closing argument: During opening statements, demonstrative aids (such as exhibits, charts or other material) shall not be displayed to the jury without a stipulation by all parties or leave of court. Agreement of the parties shall be sought first and, only if such agreement cannot be reached, may leave of court be sought. Similarly, if counsel want to show material which is not in evidence to the jury during witness examination or closing argument, the proffering party must obtain, in advance of the proffer, all parties’ consent or leave of court. Agreement of the parties or leave of court shall be sought prior to opening statement, witness examination or closing argument, and without delaying proceedings before the jury. In general, the court will not permit an exhibit to be passed among the jurors. 7. Use of microphone: Counsel shall use the microphone provided when addressing the court or the jury, such as in any examination, objection, 3 statement for the record, or argument. Lapel microphones are available for use by counsel upon request. 8. Exhibits: The parties are required to meet and confer to agree upon a common set of exhibits. The parties are also required to meet and confer regarding objections to any exhibits upon which agreement cannot be reached, with an eye towards reaching a stipulation to both authenticity and admissibility of exhibits prior to trial. The parties are not required to file a statement of objections as provided for in the Rule 16 Scheduling Conference Order. The parties shall file their proposed Exhibit Lists with the court no later than the date of the Final Pre-Trial Conference before the District Judge. All trial exhibits shall be placed in three-ring binders, no larger than 3” as measured outside the spine. One original copy and two additional copies of exhibit sets are due to the court on the Thursday before the start of trial. 9. Motions during trial: No Daubert motions are permitted once trial has commenced. 10. Witnesses: The next day’s witnesses shall be disclosed by the proffering counsel to other counsel and the court by no later than 4:30 p.m. on the business day prior to the witness’ expected testimony. Witnesses not timely disclosed shall not be permitted to testify. Counsel should arrange for a sufficient number of witnesses for each day to avoid any delay in trial proceedings caused by witness unavailability. 11. Deposition testimony: Deadlines for the deposition testimony designations and objections are as set forth in the Rule 16 Scheduling Conference Order. If deposition testimony is to be published to the jury, the party offering this testimony should notify the other parties and the court in a timely manner so that the written or videotaped testimony can be edited in accordance with the court’s ruling on any objections without any delay in the trial proceedings. In general, no later than the trial day prior to the proposed publication to the jury, counsel shall meet with the court to resolve outstanding objections. By the start of the trial day on which the designations are to be published to the jury, the offering party shall provide a revised transcript of the deposition testimony designation to opposing counsel and the court. If the deposition 4 testimony is to be published by reading testimony aloud to the jury, the offering party shall provide a person to read the testimony. 12. Jury Instructions: Counsel are responsible for complying with Local Rule 51.1. As early as possible, but no later than the night before closing arguments are to begin, the court will meet with counsel to resolve disputed jury instructions. Proposed jury instructions and proposed verdict forms shall be submitted both in hard copy and electronically in Word or in WordPerfect format via computer disk or emailed to [email protected]. Each juror will be given a copy of the final jury instructions and verdict form. 13. Interpreters: Counsel and the parties are responsible for hiring and arranging for any interpreters necessary for witness testimony. These arrangements should be made well in advance of trial. 14. Special equipment: Permission to use special equipment must be obtained in advance from the court. Counsel are responsible for obtaining, setting up, operating and removing special equipment. Contact the Courtroom Manager for specific requests or concerns. 15. Telephone numbers: Counsel shall exchange telephone numbers at which they may be reached after court hours and shall provide this information to the Courtroom Manager before the start of trial. 16. Faxes to the Court: No material may be faxed to chambers without prior permission from chambers staff. DATED: June 22, 2023 at Honolulu, Hawai‘i. Chief United States District Judge 5

=== Criminal Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII DERRICK K. WATSON United States District Judge GENERAL FEDERAL JURY INSTRUCTIONS IN CRIMINAL CASES INDEX DUTY OF JUDGE DUTY TO FOLLOW INSTRUCTIONS Single Defendant Multiple Defendants REASONABLE DOUBT Single Defendant Multiple Defendants DEFENDANT’S DECISION NOT TO TESTIFY Single Defendant Multiple Defendants EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL EVIDENCE -- OBJECTIONS EVIDENCE -- EXCLUDING STATEMENTS OF JUDGE EVIDENCE -- STIPULATIONS EVIDENCE -- DIRECT AND CIRCUMSTANTIAL EVIDENCE -- CREDIBILITY OF WITNESSES DEFENDANT’S DECISION TO TESTIFY Single Defendant Multiple Defendants EVIDENCE -- EXPERT WITNESSES IMPEACHMENT -- GENERALLY IMPEACHMENT -- REPUTATION FOR TRUTHFULNESS IMPEACHMENT OF WITNESS -- PRIOR CONVICTION IMPEACHMENT OF DEFENDANT -- PRIOR CONVICTION WITNESS WHO HAS PLEADED GUILTY Single Defendant Multiple Defendants 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 A B A B A B A B A B 18 19 20 21 22 23 24 25 A B A B C D A B TESTIMONY OF LAW ENFORCEMENT OFFICER ON OR ABOUT Single Count Multiple Counts KNOWINGLY CAUTION -- PUNISHMENT Single Defendant, Single Count Single Defendant, Multiple Counts Multiple Defendants, Single Count Multiple Defendants, Multiple Counts TAKING NOTES DURING TRIAL NO OUTSIDE RESEARCH DUTY TO DELIBERATE VERDICT FORMS Single Defendant Multiple Defendants COURT’S INSTRUCTION NO. 1 DUTY OF JUDGE Members of the Jury: You have now heard all of the evidence in the case and will soon hear the final arguments of the lawyers for the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It has been my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is now my duty to instruct you on the law applicable to the case. COURT’S INSTRUCTION NO. 2A DUTY TO FOLLOW INSTRUCTIONS -- Single Defendant You, as jurors, are the judges of the facts. But in determining what happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now defining for you. You must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I state to you. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. It is also your duty to base your verdict solely upon the testimony and evidence in the case, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors in this case, and they have the right to expect nothing less. COURT’S INSTRUCTION NO. 2B DUTY TO FOLLOW INSTRUCTIONS -- Multiple Defendants You, as jurors, are the judges of the facts. But in determining what happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now defining for you. Unless otherwise stated, you should consider each instruction to apply separately and individually to each defendant on trial. You must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I state to you. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. It is also your duty to base your verdict solely upon the testimony and evidence in the case, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors in this case, and they have the right to expect nothing less. COURT’S INSTRUCTION NO. 3A REASONABLE DOUBT -- Single Defendant The indictment or formal charge against a defendant is not evidence. The defendant is presumed to be innocent and does not have to present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt. If it fails to do so, you must return a not guilty verdict. While the government’s burden of proof is a strict or heavy burden, it is not necessary that the defendant’s guilt be proved beyond all possible doubt. It is only required that the government’s proof exclude any “reasonable doubt” concerning the defendant’s guilt. A reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. If after a careful and impartial consideration with your fellow jurors of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. COURT’S INSTRUCTION NO. 3B REASONABLE DOUBT -- Multiple Defendants The indictment or formal charge against a defendant is not evidence. Each defendant is presumed to be innocent and does not have to present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt. If it fails to do so, you must return a not guilty verdict. 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 doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that a defendant is guilty. If after a careful and impartial consideration with your fellow jurors of all the evidence, you are not convinced beyond a reasonable doubt that a defendant is guilty, it is your duty to find that defendant not guilty. On the other hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced beyond a reasonable doubt that a defendant is guilty, it is your duty to find that defendant guilty. COURT’S INSTRUCTION NO. 4A DEFENDANT’S DECISION NOT TO TESTIFY -- Single Defendant A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify. COURT’S INSTRUCTION NO. 4B DEFENDANT’S DECISION NOT TO TESTIFY -- Multiple Defendants A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendants did not testify. COURT’S INSTRUCTION NO. 5 EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL As stated earlier, it is your duty to determine the facts, and in doing so, you must consider only the evidence I have admitted in the case. The term “evidence” includes the sworn testimony of the witnesses and the exhibits admitted in the record. 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 doing so, 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. COURT’S INSTRUCTION NO. 6 EVIDENCE -- OBJECTIONS Rules of evidence control what can be received into evidence. During the course of trial, when a lawyer asked a question or offered an exhibit into evidence and a lawyer on the other side thought that it was not permitted by the rules of evidence, that lawyer may have objected. If I overruled an objection, the question was answered or the exhibit received. If I sustained an objection, the question was not answered and the exhibit was not received. Whenever I sustained an objection to a question, you must not speculate as to what the answer might have been or as to the reason for the objection. You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken from the record; such matter is to be treated as though you had never known of it. COURT’S INSTRUCTION NO. 7 EVIDENCE -- EXCLUDING STATEMENTS OF JUDGE During the course of the trial I may have occasionally 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 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 said during the trial in arriving at your own findings as to the facts. COURT’S INSTRUCTION NO. 8 EVIDENCE -- STIPULATIONS In this case, the parties have agreed, or stipulated, as to certain facts. This means that they agree that these facts are true. You should therefore treat these facts as having been conclusively proved. COURT’S INSTRUCTION NO. 9 EVIDENCE -- DIRECT AND CIRCUMSTANTIAL Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as the 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. So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits 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 testimony and evidence in the case. You are to consider both direct and circumstantial 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. COURT’S INSTRUCTION NO. 10 EVIDENCE -- CREDIBILITY OF WITNESSES 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 each witness and the weight to be given to his or her testimony. In evaluating the testimony of a witness, you may consider: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness’ memory; (3) the witness’ manner while testifying; (4) the witness’ interest in the outcome of the case, if any; (5) the witness’ bias or prejudice, if any; (6) whether other evidence contradicted the witness’ testimony; (7) the reasonableness of the witness’ testimony in light of all the evidence; and (8) any other factors that bear on believability. You may accept or reject the testimony of any witness in whole or in part. That is, you may believe everything a witness says, or part of it, or none of it. Also, 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. COURT’S INSTRUCTION NO. 11A DEFENDANT’S DECISION TO TESTIFY -- Single Defendant The defendant has testified. You should treat this testimony just as you would the testimony of any other witness. COURT’S INSTRUCTION NO. 11B DEFENDANT’S DECISION TO TESTIFY -- Multiple Defendants Each of the defendants has testified. You should treat a defendant’s testimony just as you would the testimony of any other witness. COURT’S INSTRUCTION NO. 12 EVIDENCE -- EXPERT WITNESSES The rules of evidence provide that if scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify and state his or her opinion concerning such matters. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you decide that the opinion of an expert witness is not based upon sufficient education and/or experience, or if you conclude that the reasons given in support of the opinion are not sound, or if you conclude that the opinion is outweighed by other evidence, then you may disregard the opinion entirely. COURT’S INSTRUCTION NO. 13 IMPEACHMENT -- GENERALLY A witness may be discredited or impeached by contradictory evidence by a showing that: (1) the witness testified falsely concerning a material matter; or (2) at some other time, the witness said or did something that is inconsistent with the witness’ present testimony; or (3) at some other time, the witness failed to say or do something that would be consistent with the present testimony had it been said or done. If you believe that any witness has been so impeached, then it is for you alone to decide how much credibility or weight, if any, to give to the testimony of that witness. COURT’S INSTRUCTION NO. 14 IMPEACHMENT -- REPUTATION FOR TRUTHFULNESS A witness may also be discredited or impeached by evidence that the general reputation of the witness for truth and veracity is bad in the community where the witness now resides, or has recently resided. If you believe that any witness has been so impeached, then it is for you alone to decide how much credibility or weight, if any, to give to the testimony of that witness. COURT’S INSTRUCTION NO. 15 IMPEACHMENT OF WITNESS -- PRIOR CONVICTION The fact that a witness has previously been convicted of a felony, or a crime involving dishonesty or false statement, is also a factor you may consider in weighing the credibility of that witness. The fact of such a conviction does not necessarily destroy the witness’ credibility, but is one of the circumstances you may take into account in determining the weight to give to the testimony. COURT’S INSTRUCTION NO. 16 IMPEACHMENT OF DEFENDANT -- PRIOR CONVICTION Evidence of a defendant’s previous conviction of a crime is to be considered by you only as it may affect the credibility of that defendant as a witness, and must never be considered as evidence of guilt of the crime for which that defendant is on trial. COURT’S INSTRUCTION NO. 17A WITNESS WHO HAS PLEADED GUILTY -- Single Defendant You have heard testimony from [witness], a witness who has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining this witness’ believability. You should consider this witness’ testimony with greater caution than that of other witnesses. COURT’S INSTRUCTION NO. 17B WITNESS WHO HAS PLEADED GUILTY -- Multiple Defendants You have heard testimony from [witness], a witness who has pleaded guilty to a crime arising out of the same events for which the defendants are on trial. This guilty plea is not evidence against the defendants, and you may consider it only in determining this witness’ believability. You should consider this witness’ testimony with greater caution than that of other witnesses. COURT’S INSTRUCTION NO. 18 TESTIMONY OF LAW ENFORCEMENT OFFICER The testimony of a law enforcement officer should be weighed and considered, and credibility determined, in the same way as that of any other witness. A law enforcement officer’s testimony is not entitled to any greater weight, nor should you consider it more credible, than any other witness’ testimony simply because it is given by a law enforcement officer. COURT’S INSTRUCTION NO. 19A ON OR ABOUT -- Single Count You will note that the indictment charges that the offense was committed “on or about” a certain date. The evidence need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. COURT’S INSTRUCTION NO. 19B ON OR ABOUT -- Multiple Counts You will note that the indictment charges that the offenses were committed “on or about” certain dates. The evidence need not establish with certainty the exact date of an alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that an offense was committed on a date reasonably near the date alleged. COURT’S INSTRUCTION NO. 20 KNOWINGLY The word “knowingly,” as that term has been used in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident. COURT’S INSTRUCTION NO. 21A CAUTION -- PUNISHMENT -- Single Defendant, Single Count I caution you, members of the jury, that you are here to determine whether the defendant is guilty or not guilty from the evidence in this case. The defendant is not on trial for any act or conduct or offense not alleged in the indictment. Nor are you called upon to return a verdict as to the guilt of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the judge, and should never be considered by the jury in any way in arriving at an impartial verdict. COURT’S INSTRUCTION NO. 21B CAUTION -- PUNISHMENT -- Single Defendant, Multiple Counts A separate crime or offense is charged in each count of the indictment. Each charge and the evidence pertaining to it should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the offenses charged should not control your verdict as to any other offense charged. I caution you, members of the jury, that you are here to determine whether the defendant is guilty or not guilty from the evidence in this case. The defendant is not on trial for any act or conduct or offense not alleged in the indictment. Nor are you called upon to return a verdict as to the guilt of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offenses charged in the indictment is a matter exclusively within the province of the judge, and should never be considered by the jury in any way in arriving at an impartial verdict. COURT’S INSTRUCTION NO. 21C CAUTION -- PUNISHMENT -- Multiple Defendants, Single Count The case of each defendant and the evidence pertaining to each defendant should be considered by you separately and individually. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant. I caution you, members of the jury, that you are here to determine whether each of the defendants is guilty or not guilty from the evidence in this case. The defendants are not on trial for any act or conduct or offense not alleged in the indictment. Nor are you called upon to return a verdict as to the guilt of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the judge, and should never be considered by the jury in any way in arriving at an impartial verdict. COURT’S INSTRUCTION NO. 21D CAUTION -- PUNISHMENT -- Multiple Defendants, Multiple Counts A separate crime or offense is charged against one or more of the defendants in each count of the indictment. Each offense, and the evidence pertaining to it, should be considered by you separately. Also, the case of each defendant should be considered by you separately and individually. The fact that you may find one of the defendants guilty or not guilty of any of the offenses charged should not control your verdict as to any other offense or any other defendant. I caution you, members of the jury, that you are here to determine whether each of the defendants is guilty or not guilty from the evidence in this case. The defendants are not on trial for any act or conduct or offense not alleged in the indictment. Nor are you called upon to return a verdict as to the guilt of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offenses charged in the indictment is a matter exclusively within the province of the judge, and should never be considered by the jury in any way in arriving at an impartial verdict. COURT’S INSTRUCTION NO. 22 TAKING NOTES DURING TRIAL Some of you took notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by your notes or those of other jurors. COURT’S INSTRUCTION NO. 23 NO OUTSIDE RESEARCH Remember that even during your deliberations, my mandate to you still applies that you not read any news stories or articles, listen to any radio, or watch any television reports about the case or about anyone who has anything to do with it. Do not do any research, such as consulting dictionaries, searching the internet, or using other reference materials, and do not make any investigation about the case on your own. And do not discuss the case in any manner with others, directly or through social media. You may only discuss the case with your fellow jurors during your deliberations, with all twelve of you present. COURT’S INSTRUCTION NO. 24 DUTY TO DELIBERATE Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous. It is your duty as jurors to consult with one another, and to deliberate in an effort to reach agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are not partisans. You are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence in the case. COURT’S INSTRUCTION NO. 25A VERDICT FORMS -- Single Defendant Upon retiring to the jury room you should first select one of your number to act as your foreperson who will preside over your deliberations and will be your spokesperson here in court. A verdict form has been prepared for your convenience. (Explain Verdict Form) You will take the verdict form to the jury room and when you have reached unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. If, during your deliberations, you desire to communicate with the court, please put your message or question in a note, have the foreperson sign the note, 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 return to the courtroom so that I can address you orally. I caution you, however, that you should never state or specify your numerical division at any time. For example, you should never state that “x” number of jurors are leaning or voting one way and “x” number of jurors are leaning or voting another way. COURT’S INSTRUCTION NO. 25B VERDICT FORMS -- Multiple Defendants Upon retiring to the jury room you should first select one juror to act as your foreperson who will preside over your deliberations and will be your spokesperson here in court. Verdict forms have been prepared for your convenience. (Explain Verdict Forms) You will take the verdict forms to the jury room and when you have reached unanimous agreement as to your verdicts, you will have your foreperson fill them in, date and sign them, and then return to the courtroom. If, during your deliberations, you desire to communicate with the court, please put your message or question in a note, have the foreperson sign the note, 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 return to the courtroom so that I can address you orally. I caution you, however, that you should never state or specify your numerical division at any time. For example, you should never state that “x” number of jurors are leaning or voting one way and “x” number of jurors are leaning or voting another way.

=== Civil Jury Instructions ===

November 1, 2014 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII DERRICK K. WATSON United States District Judge GENERAL FEDERAL JURY INSTRUCTIONS IN CIVIL CASES INDEX 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 DUTY OF JUDGE DUTY TO FOLLOW INSTRUCTIONS Private Individuals As Parties Corporation As Party A B EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL EVIDENCE -- OBJECTIONS EVIDENCE -- EXCLUDING STATEMENTS OF JUDGE EVIDENCE -- JUDICIAL NOTICE EVIDENCE -- STIPULATIONS EVIDENCE -- DEPOSITIONS EVIDENCE -- INTERROGATORIES EVIDENCE -- ADMISSIONS EVIDENCE -- DIRECT AND CIRCUMSTANTIAL EVIDENCE -- CREDIBILITY OF WITNESSES EVIDENCE -- EXPERT WITNESSES IMPEACHMENT -- GENERALLY IMPEACHMENT -- REPUTATION FOR TRUTHFULNESS IMPEACHMENT -- PRIOR CONVICTION CORPORATION RESPONSIBLE FOR ACTS AND DECLARATIONS OF ITS AGENTS AND EMPLOYEES BURDEN OF PROOF -- PREPONDERANCE OF THE EVIDENCE A B Single Claim Multiple Claims MULTIPLE PLAINTIFFS MULTIPLE DEFENDANTS TAKING NOTES DURING TRIAL 22 23 24 25 26 QUESTIONS POSED BY JURORS DAMAGES INSTRUCTION NOT RELEVANT TO LIABILITY NO OUTSIDE RESEARCH DUTY TO DELIBERATE VERDICT FORMS A B Single Verdict Form Multiple Verdict Forms COURT’S INSTRUCTION NO. 1 DUTY OF JUDGE Members of the Jury: You have now heard all of the evidence in the case and will soon hear the final arguments of the lawyers for the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It has been my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is now my duty to instruct you on the law applicable to the case. COURT’S INSTRUCTION NO. 2A DUTY TO FOLLOW INSTRUCTIONS -- Private Individuals As Parties You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now defining for you. You must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I state to you. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. In deciding the facts of this case you must not be swayed by sympathy, bias or prejudice as to any party. This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. All persons stand equal before the law and are to be dealt with as equals in a court of justice. COURT’S INSTRUCTION NO. 2B DUTY TO FOLLOW INSTRUCTIONS -- Corporation As Party You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now defining for you. You must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I state to you. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. In deciding the facts of this case you must not be swayed by sympathy, bias or prejudice as to any party. This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. All persons stand equal before the law and are to be dealt with as equals in a court of justice. A corporation is entitled to the same fair trial at your hands as is a private individual. COURT’S INSTRUCTION NO. 3 EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL As stated earlier, it is your duty to determine the facts, and in doing so you must consider only the evidence I have admitted in the case. The term “evidence” includes the sworn testimony of the witnesses and the exhibits admitted in the record. 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 doing so, 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. COURT’S INSTRUCTION NO. 4 EVIDENCE -- OBJECTIONS Rules of evidence control what can be received into evidence. During the course of trial, when a lawyer asked a question or offered an exhibit into evidence and a lawyer on the other side thought that it was not permitted by the rules of evidence, that lawyer may have objected. If I overruled the objection, the question was answered or the exhibit received. If I sustained the objection, the question was not answered and the exhibit was not received. Whenever I sustained an objection to a question, you must not speculate as to what the answer might have been or as to the reason for the objection. You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken from the record; such matter is to be treated as though you had never known of it. COURT’S INSTRUCTION NO. 5 EVIDENCE -- EXCLUDING STATEMENTS OF JUDGE During the course of the trial I may have occasionally 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 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 said during the trial in arriving at your own findings as to the facts. COURT’S INSTRUCTION NO. 6 EVIDENCE -- JUDICIAL NOTICE During the course of the trial, the court took judicial notice of certain facts or events. When the court takes judicial notice of some fact or event, you must accept the court’s declaration as evidence, and regard the fact or event which has been judicially noticed as conclusively proved. COURT’S INSTRUCTION NO. 7 EVIDENCE -- STIPULATIONS In this case, the parties have agreed, or stipulated, as to certain facts. This means that they both agree that these facts are true. You should therefore treat these facts as having been conclusively proved. COURT’S INSTRUCTION NO. 8 EVIDENCE -- DEPOSITIONS Certain testimony has been read into evidence from depositions. A deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony the same as if it had been given in court. COURT’S INSTRUCTION NO. 9 EVIDENCE -- INTERROGATORIES During the course of the trial you heard reference 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 interrogatories the same as if the questions had been asked and answered here in court. COURT’S INSTRUCTION NO. 10 EVIDENCE -- ADMISSIONS During the course of the trial you heard reference to the phrase “requests for admissions.” A request for admission is a written statement of fact that one party asks the other party to confirm or deny. You are to consider requests for admissions and the answers to requests for admissions the same as if the request had been asked and answered here in court. COURT’S INSTRUCTION NO. 11 EVIDENCE -- DIRECT AND CIRCUMSTANTIAL Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as the 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. So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits 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 testimony and evidence in the case. You are to consider both direct and circumstantial 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. COURT’S INSTRUCTION NO. 12 EVIDENCE -- CREDIBILITY OF WITNESSES 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 each witness and the weight to be given to his or her testimony. In evaluating the testimony of a witness, you may consider: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness’ memory; (3) the witness’ manner while testifying; (4) the witness’ interest in the outcome of the case, if any; (5) the witness’ bias or prejudice, if any; (6) whether other evidence contradicted the witness’ testimony; (7) the reasonableness of the witness’ testimony in light of all the evidence; and (8) any other factors that bear on believability. You may accept or reject the testimony of any witness in whole or in part. That is, you may believe everything a witness says, or part of it, or none of it. Also, 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. COURT’S INSTRUCTION NO. 13 EVIDENCE -- EXPERT WITNESSES The rules of evidence provide that if scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify and state his or her opinion concerning such matters. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you decide that the opinion of an expert witness is not based upon sufficient education and/or experience, or if you conclude that the reasons given in support of the opinion are not sound, or if you conclude that the opinion is outweighed by other evidence, then you may disregard the opinion entirely. COURT’S INSTRUCTION NO. 14 IMPEACHMENT -- GENERALLY A witness may be discredited or impeached by contradictory evidence, by a showing that: (1) the witness testified falsely concerning a material matter; or (2) at some other time, the witness said or did something that is inconsistent with the witness’ present testimony; or (3) at some other time, the witness failed to say or do something that would be consistent with the present testimony had it been said or done. If you believe that any witness has been so impeached, then it is for you alone to decide how much credibility or weight, if any, to give to the testimony of that witness. COURT’S INSTRUCTION NO. 15 IMPEACHMENT -- REPUTATION FOR TRUTHFULNESS A witness may also be discredited or impeached by evidence that the general reputation of the witness for truth and veracity is bad in the community where the witness now resides, or has recently resided. If you believe that any witness has been so impeached, then it is for you alone to decide how much credibility or weight, if any, to give to the testimony of that witness. COURT’S INSTRUCTION NO. 16 IMPEACHMENT -- PRIOR CONVICTION The fact that a witness has previously been convicted of a felony, or a crime involving dishonesty or false statement, is also a factor you may consider in weighing the credibility of that witness. The fact of such a conviction does not necessarily destroy the witness’ credibility, but is one of the circumstances you may take into account in determining the weight to give to the testimony. COURT’S INSTRUCTION NO. 17 CORPORATION RESPONSIBLE FOR ACTS AND DECLARATIONS OF ITS AGENTS AND EMPLOYEES A corporation may act only through natural persons -- its agents or employees. In general, any agent or employee of a corporation may bind the corporation by acts and declarations made while acting within the scope of the authority delegated to him or her by the corporation, or within the scope of the agent’s or employee’s duties to the corporation. COURT’S INSTRUCTION NO. 18A BURDEN OF PROOF -- PREPONDERANCE OF THE EVIDENCE -- Single Claim The burden is on the Plaintiff in a civil action such as this to prove every essential element of the claim by a “preponderance of the evidence.” 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 minds a belief that what is sought to be proved is more likely true than not true. In other words, to establish a claim by a preponderance of the evidence merely means to prove that the claim is more likely so than not so. In determining whether any fact in issue has been proved by a preponderance of the evidence, you may consider the testimony of all the witnesses, regardless of who called them, and all the exhibits received in evidence, regardless of who produced them. If the proof fails to establish any essential element of the Plaintiff’s claim by a preponderance of the evidence, you should find for the Defendant as to that claim. COURT’S INSTRUCTION NO. 18B BURDEN OF PROOF -- PREPONDERANCE OF THE EVIDENCE -- Multiple Claims In a civil action such as this, each party asserting a claim has the burden of proving every essential element of that claim by a “preponderance of the evidence.” 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 minds a belief that what is sought to be proved is more likely true than not true. In other words, to establish a claim by a preponderance of the evidence merely means to prove that the claim is more likely so than not so. Where more than one claim is involved, as in this case, you should consider each claim, and the evidence pertaining to it, separately, as you would had each claim been tried before you separately; but in determining any fact in issue, you may consider the testimony of all the witnesses, regardless of who called them, and all the exhibits received in evidence, regardless of who produced them. If a preponderance of the evidence does not support each essential element of a claim, then you should find against the party having the burden of proof as to that claim. COURT’S INSTRUCTION NO. 19 MULTIPLE PLAINTIFFS There is more than one Plaintiff in this lawsuit. You should decide the case of each Plaintiff separately from and independently of the other, as if you were trying different lawsuits. All instructions given apply to the case of each Plaintiff unless otherwise stated. COURT’S INSTRUCTION NO. 20 MULTIPLE DEFENDANTS Although there is more than one Defendant in this lawsuit, it does not follow from that fact alone that if one is liable all are liable. Each Defendant is entitled to a fair and separate consideration of that Defendant’s own defense and is not to be prejudiced by your decision as to the others. All instructions given apply to the case against each Defendant unless otherwise stated. You must decide each Defendant’s case separately. COURT’S INSTRUCTION NO. 21 TAKING NOTES DURING TRIAL Some of you may take notes during the trial. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by your notes, or those of other jurors. COURT’S INSTRUCTION NO. 22 QUESTIONS POSED BY JURORS During the course of the trial, questions were posed by members of the jury. You should evaluate the answers to those questions in the same manner that you evaluate all of the other evidence. COURT’S INSTRUCTION NO. 23 DAMAGES INSTRUCTION NOT RELEVANT TO LIABILITY Of course, the fact that I have given you instructions concerning the issue of the Plaintiff’s damages should not be interpreted in any way as an indication that I believe the Plaintiff should, or should not, prevail in this case. COURT’S INSTRUCTION NO. 24 NO OUTSIDE RESEARCH Remember that even during your deliberations, my mandate to you still applies that you not read any news stories or articles, listen to any radio, or watch any television reports about the case or about anyone who has anything to do with it. Do not do any research, such as consulting dictionaries, searching the internet, or using other reference materials, and do not make any investigation about the case on your own. And do not discuss the case in any manner with others, directly or through social media. You may only discuss the case with your fellow jurors during your deliberations, with all of you present. COURT’S INSTRUCTION NO. 25 DUTY TO DELIBERATE Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous. It is your duty as jurors to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are not partisans. You are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence in the case. COURT’S INSTRUCTION NO. 26A VERDICT FORMS -- Single Verdict Form Upon retiring to the jury room you should first select one of your number to act as your foreperson who will preside over your deliberations and will be your spokesperson here in court. A verdict form has been prepared for your convenience. (Explain Verdict Form) You will take the verdict form to the jury room and when you have reached unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. If, during your deliberations, you desire to communicate with the court, please put your message or question in a note, and have the foreperson sign the note. The foreperson will then contact the Courtroom Manager via the telephone located in the hallway outside the jury room. The Courtroom Manager will pick up the note and bring it to my attention. I will then respond as promptly as possible, either in writing or by having you return 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 never state or specify your numerical division at the time. For example, you should never state that “x” number of jurors are leaning or voting one way and “x” number of jurors are leaning or voting another way. COURT’S INSTRUCTION NO. 26B VERDICT FORMS -- Multiple Verdict Forms Upon retiring to the jury room you should first select one of your number to act as your foreperson who will preside over your deliberations and will be your spokesperson here in court. Verdict forms have been prepared for your convenience. (Explain Verdict Forms) You will take the verdict forms to the jury room and when you have reached unanimous agreement as to your verdicts, you will have your foreperson fill them in, date and sign them, and then return to the courtroom. If, during your deliberations, you desire to communicate with the court, please put your message or question in a note, and have the foreperson sign the note. The foreperson will then contact the Courtroom Manager via the telephone located in the hallway outside the jury room. The Courtroom Manager will pick up the note and bring it to my attention. I will then respond as promptly as possible, either in writing or by having you return 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 never state or specify your numerical division at the time. For example, you should never state that “x” number of jurors are leaning or voting one way and “x” number of jurors are leaning or voting another way.