Free Jury Instructions - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) Plaintiff, ) ) v. ) ) William Domingo ) ) Defendant. ) ) ____________________________)

United States of America,

No. CR04-1100 PHX DGC

COURT'S PROPOSED PRELIMINARY JURY INSTRUCTIONS AND VOIR DIRE

DATED: April 6, 2006

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1.1 DUTY OF JURY Ladies and gentlemen: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. These are preliminary instructions. At the end of the trial I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

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1.2 THE CHARGE ­ PRESUMPTION OF INNOCENCE This case involves allegations that on or about January 12, 2003, on the Gila River Indian Community, the defendant, William Kevin Domingo, an Indian, assaulted Lawrence Samuel Kisto, Hubert Evans, Jr., and Russell Blackwater, Sr. with a machete and a handgun, and in addition, that Mr. Domingo caused the death of Theopholis James while trying to kill another person. Finally, Mr. Domingo has been charged with several charges of use of a firearm. Mr. Domingo has pleaded not guilty to all 10 charges filed against him.

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1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) (2) (3) the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which all the lawyers stipulate.

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1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: 1. 2. 3. 4. statements and arguments of the attorneys; questions and objections of the attorneys; testimony that I instruct you to disregard; and anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

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1.5 EVIDENCE FOR LIMITED PURPOSE Some evidence is admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

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1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact. 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.

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1.7 RULING ON OBJECTIONS There are rules of evidence which control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer would have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence which I told you to disregard.

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1.8 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: 1. the opportunity and ability of the witness to see or hear or know the things testified to; the witness's memory; the witness's manner while testifying; the witness's interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness's testimony; the reasonableness of the witness's testimony in light of all the evidence; and any other factors that bear on believability.

2. 3. 4. 5. 6. 7.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, 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, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, 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; Fourth, if you need to communicate with me simply give a signed note to the clerk to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

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1.10 NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript of the trial. I urge you to pay close attention to the testimony as it is given.

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1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the court room. 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 the notes.

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1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The government will then present evidence and counsel for the defendant may cross-examine. Then, the defendant may present evidence and counsel for the government may cross-examine. After the evidence has been presented, the attorneys will make closing arguments and I will instruct you on the law that applies to the case. After that, you will go to the jury room to deliberate on your verdict.

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2.1 CAUTIONARY INSTRUCTION ­ FIRST RECESS 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, nor are you allowed to permit others to discuss the case with you. 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, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the clerk to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

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2.2 BENCH CONFERENCES AND RECESSES From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Most often these conferences will involve determination as to whether evidence is admissible under the rules of evidence. It is appropriate to take these matters up outside the presence of the jury. Should I conclude that a more prolonged discussion is necessary, I may excuse you from the courtroom. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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2.4 STIPULATIONS OF FACT The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

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CRIMINAL VOIR DIRE QUESTIONS 1. Read statement of the case. · Have any of you read or heard anything about this case from any source whatsoever? · Given this brief description of the facts, is there anything about this case that would cause you to believe that you could not consider the evidence fairly and impartially according to the law? · Introduce self and staff: Lisa Richter, Tricia Lyons, Jeff Kilmark, Nicole Nakaji, Dave Sidhu, and Nancy Johnson. Do any of you know me or any member of my staff on any basis, social, professional or otherwise? 2. The United States is represented by Thomas C. Simon. Counsel please stand. She is an assistant United States attorney. · The United States attorney is Paul K. Charlton. Do any of you know counsel, or the United States attorney, or any of the employees in his office on any basis, social, professional or otherwise? · Counsel, please introduce your investigator. Do any of you know the

investigator or any employees of her office on any basis, social, professional or otherwise? 3. The defendant is represented by David Lee Titterington. Counsel please stand. · Do any of you know the defendant's attorney or any employees of his office on any basis, social, professional or otherwise?
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Counsel, please introduce your client. Do any of you know the defendant on any basis, social, professional, or otherwise? (Ask in detail about lawyers from the same office, if appropriate.)

4.

The witnesses who may be called during this trial are: (See Witness Tab): · Do any of you know or think you might know any of these witnesses?

5.

Have you or any members of your family, including brothers, sisters, parents or children, or close friends, ever been the victims of criminal conduct? (give small example) · If yes, please explain including what the incident was, what police agency investigated, did you have to make a statement, and was the responsible party apprehended? · Do you think this experience would prevent you from being fair and impartial in this case?

6.

Have you or any members of your family ever been convicted of a felony? · · If so, which family member, what offense, and what was the disposition? Do you think this experience would prevent you from being fair and impartial in this case?

7.

Have you or any members of your family or close friends ever served in the capacity of law enforcement officer: · Please note that in the definition of law enforcement officer, I am including not only police officers, but also employees of law enforcement agencies, military
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police, INS, border patrol, DEA, ATF, etc. · Do you think this relationship would prevent you from being fair and impartial in this case? 8. There will be witnesses called during this trial who are members of law enforcement and who may have been in that profession for a number of years. · Is there anything about the law enforcement profession and/or about the witness having been engaged in such profession for a number of years that would cause you to either give greater or lesser weight to their testimony? 9. Have any of you or members of your family been a party or witness in any litigation (excluding domestic relations, traffic, or probate)? · Do you think this experience would prevent you from being fair and impartial in this case? 10. Do any of you or any of the members of your family have any legal training? · Do you think this training would affect your ability to be fair and impartial in this case? 11. Do any of you have any moral, religious or other convictions which would prevent you from sitting in judgment of another person? 12. You will hear evidence in this case that the defendant and victims are members of an Indian tribe and some of the other witnesses who will testify in this case are Native Americans. · Due to any personal beliefs, opinions and/or life experiences involving Native
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Americans that you may have had, would this fact make it difficult for you to be a fair and impartial juror in this case? · Would these believes, opinions and/or life experiences make it difficult for you to render a verdict based solely on the evidence and the instructions of law given to you by the Court? 13. Does the fact that the defendant and victims are Native Americans make you think this case should be decided differently than any other criminal case? For example, do you believe that crimes committed against a Native American on the reservation should be handled exclusively by the Indian Tribe? 14. This crime is alleged to have occurred on the Gila River Indian Community. Do any of you feel the federal government should not be involved in the prosecution of crimes which occur on an Indian Reservation? 15. Have you ever lived or worked on or near an Indian reservation or otherwise had substantial contacts with Native Americans? 16. Some of the witnesses who may testify in this case are Officers of the Gila River Police Department. Has anyone had any contact or experience with this law enforcement agency which would make it difficult for you to render a fair and impartial verdict in this matter? 17. 18. Do you or any of your family members or close friends own or use firearms? Do you or any of your family members or close friends belong to any neighborhood anti-crime organization, such as Block Watch?
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19.

Have any of you had a civil dispute, formal or informal, with any agency or department, such as with the Internal Revenue Service, or the United States Government? If so, would that dispute make it difficult for you to be a fair and impartial juror to both the government and the defendant?

20.

I will instruct you what the law is at the conclusion of the case. If selected as a juror, you will take an oath to follow the law. Does anyone think you would have trouble following the law even if you may disagree with it?

21.

In a civil case the burden of proof is a preponderance of the evidence. This is a criminal case in which the government must prove guilt beyond a reasonable doubt. Does anyone have any difficulty in holding the government to its burden?

22.

Here are some fundamental principles of law: · The fact that an indictment has been filed raises no presumption whatsoever of the guilt of the defendant. · The United States government must satisfy you beyond a reasonable doubt of the guilt of the defendant. · The defendant does not have any obligation to testify or to produce any evidence and you may not draw an adverse inference if the defendant chooses not to testify. · The defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt. · You must wait until all of the evidence has been presented before making up
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your minds as to the innocence or guilt of the defendant. · Does anyone believe that they would have any difficulty following these principles of law? 23. Ladies and gentlemen, we recognize that jury service is probably an inconvenience for you, taking you away from your jobs and families and disrupting your daily routine. Jury service is, however, one of the most important duties that citizens of this country can perform. For this reason, from time to time we ask citizens to make sacrifices and serve on juries, even when inconvenient. Prospective jurors can be excused from jury service if the length of the trial or the daily schedule would impose undue hardship. By undue hardship I mean more than inconvenience ­ I mean genuine hardship that would be experienced by you or your family. This case is expected to last 6 days. Would the length of the trial create an undue hardship for any of you?

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24.

I expect to conduct trial on these dates and times: _______________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ · Would this schedule create an undue hardship for any of you?

25.

Do any of you have any other reason whatsoever, such as a physical difficulty, a health problem or home problems that might interfere with your serving as a fair and impartial juror in this case?

26.

Ladies and Gentlemen, we have handed you a sheet with 10 separate questions. Please stand and answer the questions. The last question asks about your prior jury service. With respect to civil cases, just tell us the number of civil juries on which you have served. With respect to criminal cases, please indicate the nature of the crime involved and the result of the case, guilty, not guilty, or hung jury, for each of the criminal juries you have served on.

27. 28.

Did any of you know each other before this morning? If there are any matters that you would rather discuss privately that may affect your ability to be a fair and impartial juror, please let the Court know.

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1. 2. 3. 4. 5. 6. 7.

Juror Number The general location of your residence Length of time at current residence Education after high school, if any. State your major Marital status Number of children. Ages of children if under 18 Employment A. B. Yourself ­ current job and types of jobs throughout lifetime Spouse ­ current job and types of jobs throughout lifetime

8. 9. 10.

Civil, social, fraternal, union or professional organizations. Offices held in them Hobbies or recreational activities Prior jury service ­ civil or criminal

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