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2.1-3 Duty to Decide on the Evidence

Revised to January 1, 2008

You are to determine what the facts are by careful consideration of all the evidence presented and based solely upon the evidence, giving to each part of the evidence the weight you consider it deserves in reaching your ultimate conclusion.  When I say evidence, I include the following:

<List those applicable>

  • testimony by witnesses in court, including what you may have observed in any demonstrations they presented during their testimony;
  • testimony by witnesses by way of the reading of transcripts or the showing of videotapes;
  • exhibits that have been received into evidence as full exhibits, including any pictures or documents that are full exhibits;
  • your observations at the viewing of the scene;
  • facts that the parties have stipulated to;
  • facts that I have told you are to be taken as true by judicial notice;
  • facts admitted as true in pleadings;
  • facts admitted in response to requests to admit.

The testimonial evidence includes both what was said on direct examination and what was said on cross examination, without regard to which party called the witness.

There are a number of things that may have been seen or heard during the trial which are not evidence and which you cannot rely on as evidence in deciding whether a party has proven a claim or a defense.  For example, <use as applicable:>

  • the statements made by lawyers, including statements made both in their opening statements and in their closing arguments are not evidence;
  • a question is not evidence; it is the answer, not the question or the assumption made in the question, that is evidence;
  • the fact that a party has filed a claim or a defense in the court is not evidence that proves the claim or the defense is true;
  • testimony or exhibits that were offered but refused or stricken by me or that I told you to disregard must not be relied upon as evidence in resolving the case;
  • testimony or exhibits that I told you were to be used only for a particular purpose are not evidence for any other issue;
  • exhibits marked for identification that were not received in evidence as full exhibits are not evidence.

Your duty is to decide the case based on what has been admitted into evidence in this courtroom only, and not on any information about the issues that was not presented into evidence in this courtroom.

It's my right to make comments to you on the evidence, but where I do that, such comments are merely to suggest to you what point of law or what controversy I am speaking about.  If I refer to certain facts or certain evidence in the case, do not assume that I mean to emphasize those facts or that evidence and do not limit your consideration to the things that I may have mentioned.  Likewise, you should attach no importance to it if I should mention one party more than the other.  If I should overlook any evidence in the case, you'll supply it from your own recollection; if I incorrectly state anything about the evidence in relation to what you remember, you should apply your own recollection and correct my error.  In the same way, what any of the lawyers may have said in their respective summaries to you as to the facts or evidence in the case should have weight with you only if their recollection agrees with your own; otherwise, it's your own recollection of the facts and evidence which should have weight in your deliberations.


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