Ninth Circuit Manual of Model Jury Instructions Civil

 

INTRODUCTION

 

This Manual of Model Civil Jury Instructions ("Manual") has been prepared to help judges communicate effectively with juries.

The instructions in this manual are models. They must be reviewed carefully before use in a particular case. They are not a substitute for the individual research and drafting that may be required in a particular case, nor are they intended to discourage judges from using their own forms and techniques for instructing juries. See McDowell v. Calderon, 130 F.3d 833, 840 (9th Cir. 1997).

The Jury Instructions Committee considers suggestions from judges, staff and practitioners about possible revisions, additions and deletions. After careful assessment and research, many of these suggestions are adopted. Revisions are available online. They are later compiled and published in the printed version of the Manual. The committee strongly encourages users of this book to make suggestions for further revisions and updates. A suggestion form has been included in the back of this book for that purpose.

The Manual is periodically reprinted. Publication of any edition of the Manual necessarily presents a snap-shot of an ongoing research and drafting process. Accordingly, even the most recently dated edition of the Manual does not guarantee that one is using instructions that are up to date. All instructions in this edition are coded to indicate the year they were last approved by the Committee. The code appears at the bottom of the page upon which an instruction appears (e.g. "Approved 2006"). Users of the Manual should check the date to determine when an instruction was last approved. The entire publication and any later changes can be found under the "Publications" area of the Ninth Circuit's website at http://www.ce9.uscourts.gov. This edition is current as to instructions approved in September 2006.

This edition contains a substantial revision and reorganization of many chapters. For example, former Chapters 1-5 have been reorganized as three chapters: Chapter 1 ("Instructions on the Trial Process"), Chapter 2 ("Instructions on Types of Evidence"), and Chapter 3 ("Instructions on Deliberations"). Chapter 9 ("Civil Rights Actions—42 U.S.C. § 1983") and Chapter 10 ("Civil Rights—Title VII—Employment Discrimination; Harassment; Retaliation") have been substantially revised and expanded. To assist users, the committee has included a table listing the old instruction numbers in the 2001 edition and the corresponding numbers in the 2007 edition.

These model instructions have been reviewed by various members of the federal bench and bar. The committee extends its thanks to those who reviewed and commented on various parts of the book. The committee also extends its thanks to Ninth Circuit Office of the Circuit Executive staff members Robin Donoghue and Debra Landis. In addition, the committee acknowledges with gratitude the singular contributions of Joseph Franaszek, Esq. For many years, Mr. Franaszek has worked with the committee on a voluntary basis, providing careful research and drafting assistance, as well as a unique "institutional memory" that enables the shifting members of the committee to understand how existing instructions came to be formulated. Mr. Franaszek has performed an invaluable service to the Ninth Circuit and the Bar and has earned the committee's enduring respect.

 

CAVEAT

These model-jury instructions are written and organized by district judges and magistrate judges who are appointed to the Ninth Circuit Jury Instructions Committee by the Chief Circuit Judge. The judges on the Ninth Circuit Court of Appeals do not serve on the committee, however, and they do not participate in the drafting process. The Court of Appeals does not adopt these instructions as definitive. Indeed, occasionally the correctness of a given instruction may be the subject of a Ninth Circuit opinion.

NINTH CIRCUIT JURY INSTRUCTIONS COMMITTEE


 


Judge George H. King, Chair Judge Anna J. Brown Judge Roger L. Hunt Judge A. Howard Matz Judge Jeffrey T. Miller



JURY INSTRUCTION NUMBERS

2007 EDITION

TITLE

1.1A-1.1C

Duty of Jury

1.1A

Duty of Jury (Court Reads and Provides Written Set of Instructions)

1.1B

Duty of Jury (Court Reads Instructions Only)

1.1C

Duty of Jury (Court Reads and Provides Written Set of Instructions at End of Case)

1.2

Claims and Defenses

1.6

What Is Evidence

1.7

What Is Not Evidence

1.8

Evidence for Limited Purpose

1.9

Direct and Circumstantial Evidence

1.10

Ruling on Objections

1.11

Credibility of Witnesses

1.12

Conduct of the Jury

1.13

No Transcript Available to Jury

1.14

Taking Notes

1.19

Outline of Trial

1.3

Burden of Proof-Preponderance of the Evidence

1.4

Burden of Proof-Clear and Convincing Evidence


 

1.15

Question to Witnesses by Jurors

1.16

Jury to Be Guided by Official English Translation/Interpretation

1.17

Use of Interpreters

 

 

1.12

Cautionary Instruction-First Recess

1.18

Bench Conferences and Recesses

2.1

Stipulated Testimony

2.2

Stipulations of Fact

2.3

Judicial Notice

2.4

Deposition as Substantive Evidence

2.5

Transcript of Tape Recording

2.6

Transcript of Recording in Foreign Language

2.7

Foreign Language Testimony

1.8

Limited Purpose Evidence

2.8

Impeachment by Conviction of Crime

2.9

Tests and Experiments

2.10

Use of Interrogatories of a Party

 

 

1.0

Cover Sheet

1.1A-1.1C

Duties of Jury to Find Facts and Follow Law


 

1.6

What Is Evidence

1.7

What Is Not Evidence

1.16

Jury to be Guided by Official English Translation/Interpretation

1.9

Direct and Circumstantial Evidence

1.11

Credibility of Witnesses

2.11

Opinion Evidence, Expert Witnesses

 

Causation (Comment only)

2.12

Charts and Summaries Not Received in Evidence

2.13

Charts and Summaries in Evidence

1.5

Two or More Parties-Different Legal Rights

2.8

Impeachment Evidence-Witness

 

 

3.1

Duty to Deliberate

1.14

Use of Notes

3.2

Communication With Court

3.3

Return of Verdict

3.4

Additional Instructions of Law

3.5

Deadlocked Jury

 

 


1.3

Burden of Proof-Preponderance of the Evidence

1.4

Burden of Proof-Clear and Convincing Evidence

 

Complete Affirmative Defense

 

 

4.1

Corporations and Partnerships-Fair Treatment

4.2

Liability of Corporations-Scope of Authority Not in Issue

4.3

Liability of Partnerships-Scope of Authority Not in Issue

4.4

Agent and Principal-Definition

4.5

Agent-Scope of Authority Defined

4.6

Act of Agent Is Act of Principal-Scope of Authority Not in Issue

4.7

Both Principal and Agent Sued-No Issue as to Agency or Authority

4.8

Principal Sued but Not Agent-No Issue as to Agency or Authority

4.9

Both Principal and Agent Sued-Agency or Authority Denied

4.10

Principal Sued, but Not Agent-Agency or Authority Denied

4.11

Independent Contractor-Definition

4.12

General Partnership-Definition

4.13

General Partnership-Scope of Partnership Business Defined


 

4.14

General Partnership-Act of Partner Is Act of All Partners

4.15

General Partnership-Liability of Partner-No Issue as to Partnership, Agency, or Scope of Authority

4.16

Partnership-Existence Admitted-Scope of Partnership Business in Issue-Effect

4.17

Partnership-Existence of Partnership in Issue-Effect

 

 

5.1

Damages-Proof

5.2

Measures of Types of Damages

5.3

Damages-Mitigation

5.4

Damages Arising in the Future-Discount to Present Cash Value

5.5

Punitive Damages

5.6

Nominal Damages

 

 

6.1

Preliminary Jury Instruction for Federal Employers' Liability Act (45 U.S.C. §§ 51 and 53)

6.2

FELA-Elements and Burden of Proof

6.3

FELA-Negligence Defined

6.4

FELA-Causation

6.5

FELA-PlaintifPs Compliance With Defendant's Request or Directions

6.6

FELA-Damages (Comment only)


 

6.7

FELA-Plaintiffs Negligence-Reduction of Damages (45 U.S.C. § 53)

 

 

7.1

Seaman Status

7.2

Jones Act-Negligence Claim-Elements and Burden of Proof (46 U.S.C. § 30104)

7.3

Jones Act-Negligence Defined

7.4

Jones Act-Negligence Claim-Causation

7.10

Jones Act-Plaintiff's Compliance With Defendant's Request or Directions

7.5

Unseaworthiness Claim-Elements And Burden of Proof

7.6

Unseaworthiness Defined

7.7

Unseaworthiness-Causation

7.8

Negligence or Unseaworthiness-Damages-Proof (Comment only)

7.9

Negligence or Unseaworthiness-Plaintiff's Negligence-Reduction of Damages

7.11

Maintenance And Cure-Elements and Burden of Proof

7.12

Maintenance And Cure-Willful or Arbitrary Failure to Pay

 

 

8.1

Tax Refund Actions-Elements and Burden of Proof-Claimed Refund

8.2

Tax Refund Actions-Elements and Burden of Proof-Claimed Deductions

 

 


9.1-9.3

Violation of Federal Civil Rights-Elements and Burden of Proof

9.1-9.3

Under Color of Law Defined

9.3

Section 1983 Claim Against Supervisory Defendant in Individual Capacity-Elements and Burden of Proof

9.8

Causation

9.9

Particular Rights-First Amendment-Public Employees-Speech

9.10

Particular Rights-First Amendment-"Citizen" Plaintiff

9.26

Qualified Immunity (Comment only)

9.22, 9.23

Excessive Force-Unreasonable Seizure-Lawful Arrest

9.11

Unreasonable Search-Generally

9.12

Unreasonable Search-Exceptions to Warrant Requirement-Search Incident to Lawful Arrest

9.13

Unreasonable Search-Exceptions to Warrant Requirement-Consent

9.14

Unreasonable Search-Exceptions to Warrant Requirement-Exigent Circumstances

9.15

Particular Rights-Fourth Amendment-Unreasonable Search-Exception to Warrant Requirement-

Emergency or Community Caretaker Circumstances

9.16

Particular Rights-Fourth Amendment-Unreasonable Seizure of Property-Generally


9.17

Particular Rights-Fourth Amendment-Unreasonable Seizure of Property-Exception to Warrant Requirement

9.18

Particular Rights-Fourth Amendment-Unreasonable Seizure of Person-Generally

9.19

Particular Rights-Fourth Amendment-Unreasonable

Seizure of Person-Exception to Warrant Requirement-Jerry Stop

9.20

Particular Rights-Fourth Amendment-Unreasonable Seizure of Person-Probable Cause Arrest

9.21

Particular Rights-Fourth Amendment-Unreasonable Seizure of Person-Detention During Execution of Search Warrant

9.24

Violation of Prisoner's Federal Civil Rights-Eighth Amendment-Excessive Force

9.25

Violation of Prisoner's Federal Civil Rights-Eighth Amendment-General Conditions of Confinement Claim

9.25

Violation of Prisoner's Federal Civil Rights-Eighth Amendment-Medical Care

9.4

Municipal Liability

9.5

Official Policy Makers

9.6

Section 1983 Claim Against Local Governing Body Defendants Based on Ratification-Elements and Burden of Proof

9.7

Municipal Liability-Failure to Train-Elements and Burden of Proof

 

 


 

 

10.1A-10.1C

Civil Rights-Title VII-Disparate Treatment-Elements and Burden of Proof (42 U.S.C. § 2000e)

10.1A, 10.1C

Civil Rights-Title VII-Disparate Treatment-"Mixed Motive Case" (42 U.S.C. § 2000e)

10.1A

Civil Rights-Title VII-Disparate Treatment-Where Evidence Supports "Sole Reason" or "Motivating Factor"

10.1B

Civil Rights-Title VII-Disparate Treatment-"Sole Reason"-Elements and Burden of Proof

10.1C

Civil Rights-Title VII-Disparate Treatment-"Motivating Factor"-Elements and Burden of Proof

10.2

Civil Rights-Title VII-Hostile Work Environment-Harassment (Comment only)

10.2A

Civil Rights-Title VII-Hostile Work Environment-Harassment Because of Protected Characteristics-Elements

10.2B

Civil Rights-Title VII-Hostile Work Environment Caused by Supervisor-Claim Based upon Vicarious Liability-Tangible Employment Action-Affirmative Defense

10.2C

Civil Rights-Title VII-Hostile Work Environment Caused by Non-Immediate Supervisor or by Co- Worker-Claim Based on Negligence

10.3

Civil Rights-Title VII—Retaliation—Elements and Burden of Proof

10.4

Civil Rights-Title VII-Definition of Common Terms (Comment only)

10.4A

Civil Rights-Title VII-"Adverse Employment Action"


10.4A.1

Civil Rights-Title VII-"Adverse Employment Action" in Retaliation Cases

10.4A.2

Civil Rights-Title VII-"Adverse Employment Action" in Disparate Treatment Cases

10.4B

Civil Rights-Title VII-"Tangible Employment Action" Defined

10.4C

Civil Rights-Title VII-"Constructive Discharge" Defined

10.5A

Civil Rights Title VII-Disparate Treatment-Affirmative Defense-Bona Fide Occupational Qualification

10.5B

Civil Rights Title VII-Disparate Treatment-Affirmative Defense-Bona Fide Seniority System

10.5C

Civil Rights-Title VII-Same Decision-After-Acquired Evidence

 

 

10.2A

Hostile Work Environment-Sexual Harassment-Elements

10.2A

Hostile Work Environment-Sexual Harassment by Supervisor-Adverse Tangible Employment Action

10.4B

"Tangible Employment Action"-Defined

Hostile Work Environment-Sexual Harassment by Supervisor-No Adverse Tangible Employment Action-Affirmative Defense

10.2A

Hostile Work Environment-Sexual Harassment by Non-Supervisor

 

Quid Pro Quo Sexual Harassment-Essential Elements


 

Quid Pro Quo Sexual Harassment-Defense-Non- Discriminatory Reason-Pretext

10.3

Retaliation-Essential Elements

Retaliation-Defense-Non-Retaliatory Reason-Pretext (Comment only)

10.1A-10.1C

Sex Discrimination-Disparate Treatment

10.5C

Same Decision-After-Acquired Evidence

 

 

11.1A-11.1C

Age Discrimination-Disparate Treatment-Elements and Burden of Proof-Discharge

11.1A-11.1C

Age Discrimination-Disparate Treatment-Elements and Burden of Proof-Failure or Refusal to Hire-No Affirmative Defense

11.1A

Age Discrimination-Disparate Treatment-Where Evidence Supports "Sole Reason" or "Motivating Factor"

11.1B

Age Discrimination-Disparate Treatment-"Sole Reason"-Elements and Burden of Proof

11.1C

Age Discrimination-Disparate Treatment-"Motivating Factor"-Elements and Burden of Proof

11.2

Age Discrimination-Disparate Treatment-Hostile Work Environment (Comment only)

11.3

Age Discrimination-Retaliation (Comment only)

11.6A

Age Discrimination-Disparate Treatment-Affirmative Defense-Bona Fide Occupational Qualifications

11.6B

Age Discrimination-Disparate Treatment-Affirmative Defense-Bona Fide Seniority System


 

11.6C

Age Discrimination-Disparate Treatment-After- Acquired Evidence (Comment only)

11.6D

Age Discrimination-Disparate Treatment-Affirmative Defense-Bona Fide Employee Benefit Plan

11.4

Age Discrimination-Disparate Impact-Elements and Burden of Proof-Discharge

Age Discrimination-Disparate Impact-Affirmative Defense-Business Necessity

11.6E

Age Discrimination-Defense-Reasonable Factor Other Than Age

11.7A

Age Discrimination-Damages-Compensatory -Reduction-Mitigation

11.7B

Willful Age Discrimination-Damages

 

 

12.1A-12.1C

Preliminary Instruction-ADA Employment Actions

12.1A-12.1C

Elements of ADA Employment Action

12.1A

ADA Employment Actions-Where Evidence Supports "Sole Reason" or "Motivating Factor"

12.1B

ADA Employment Actions-"Sole Reason"-Elements and Burden of Proof

12.1C

ADA Employment Actions-"Motivating Factor"-Elements and Burden of Proof

12.2

Physical or Mental Impairment

12.4

Work as a Major Life Activity


12.3

Corrected or Mitigated Disability