UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against - 00 Civ. 8166 (DC)
January 28, 2004
United States District Judge
I. GENERAL INTRODUCTORY CHARGES
A0 Introductory Remarks
Members of the jury, you have now heard all of the evidence in the case as well as the final arguments of the parties. We have reached the point where you are about to undertake your final function as jurors. You have paid careful attention to the evidence, and I am confident that you will act together with fairness and impartiality to reach a just verdict in the case.
B0 Role of the Court
My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and to apply them to the facts as you determine them, just as it has been my duty to preside over the trial and to decide what testimony and evidence was relevant, under the law, for your consideration.
On these legal matters, you must take the law as I give it to you. If any attorney has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You must not substitute your own notions or opinions of what the law is or ought to be.
You are not to infer from any of my questions or any of my rulings on objections or anything else I have done during this trial that I have any view as to the credibility of the witnesses or how you should decide the case.
C0 Role of the Jury
As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence.
It is your sworn duty, and you have taken the oath as jurors, to determine the facts and to follow the law as I give it to you.
D0 Conduct of Counsel
It is the duty of the attorneys to object when the other side offers testimony or other evidence that the attorney believes is not properly admissible. Therefore, you should draw no inference from the fact that an attorney objected to any evidence. Nor should you draw any inference from the fact that I sustained or overruled an objection.
From time to time, the lawyers and I had sidebar conferences and other conferences out of your hearing. These conferences involved procedural and other matters, and none of the events relating to these conferences should enter into your deliberations at all.
E0 Sympathy or Bias
You are to evaluate the evidence calmly and objectively, without prejudice or sympathy. You are to be completely fair and impartial. Your verdict must be based solely on the evidence developed at this trial, or the lack of evidence.
The parties in this case are entitled to a trial free from prejudice and bias. Our judicial system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence.
F0 All Persons Equal Before the Law
This case should be decided by you as an action between parties of equal standing in the community, of equal worth, and holding the same or similar stations in life. The defendant is not to be favored or disfavored because he was an employee of the New York State Department of Correctional Services, nor should you favor or disfavor the plaintiff because of her past criminal record or the fact of her incarceration. Both are entitled to the same fair trial at your hands. They stand equal before the law, and are to be dealt with as equals in this court.
G0 Burden of Proof
In a civil case such as this, the plaintiff has the burden of proving all of the elements of her claim by a preponderance of the evidence.
What does a preponderance of the evidence mean? To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not the number of witnesses or documents. In determining whether a claim has been proven by a preponderance of the evidence, you may consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.
If, after considering all of the evidence, you are satisfied that the plaintiff has carried her burden on each essential point as to which she has the burden of proof, then you must find in her favor. If after such consideration you find that the credible evidence on a given issue is evenly divided between the parties -- that it is as equally probable that one side is right as it is that the other side is right -- or that the evidence produced by the plaintiff is outweighed by evidence against her claim, then you must decide that issue against the plaintiff. That is because the party bearing the burden of proof must prove more than simple equality of evidence -- she must prove each element of the claim by a preponderance of the evidence. On the other hand, the party with this burden of proof need prove no more than a preponderance. So long as you find that the scales tip, however slightly, in favor of plaintiff --that what she claims is more likely true than not -- then the element will have been proven by a preponderance of evidence.
H0 What Is and Is Not Evidence
The evidence in this case is the sworn testimony of the witnesses, the exhibits received in evidence, stipulations, and judicially noticed facts.
By contrast, the questions of a lawyer are not to be considered by you as evidence. It is the witnessess answers that are evidence, not the questions.
Testimony that has been stricken or excluded by me is not evidence and may not be considered by you in rendering your verdict.
Arguments by lawyers are not evidence, because the lawyers are not witnesses. What the lawyers have said to you in their opening statements and in their summations is intended to help you understand the evidence to reach your verdict. If, however, your recollection of the facts differs from the lawyers statements, it is your recollection that controls.
To constitute evidence, exhibits must first be received in evidence. Exhibits marked for identification but not admitted are not evidence, nor are materials brought forth only to refresh a witnesss recollection.
Finally, any statements that I may have made during the trial do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen.
I. Direct and Circumstantial Evidence
Generally, there are two types of evidence that you may consider in reaching your verdict.
One type of evidence is direct evidence. Direct evidence is when a witness testifies about something he or she knows by virtue of his or her own senses -- something he or she has seen, felt, touched, or heard.
Circumstantial evidence is evidence from which you may infer the existence of certain facts. There is a simple example of circumstantial evidence that is often used in this courthouse.
Assume that when you came into the courthouse this morning the sun was shining and it was a nice day. Assume further that the courtroom blinds were drawn and you could not look outside. As you were sitting here, assume that someone walked in with an umbrella, which was dripping wet. Then a few minutes later another person entered with a wet raincoat. Now, because you cannot look outside of the courtroom and you cannot see whether it was raining, you would have no direct evidence of that fact. But on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason and experience and common sense from one established fact the existence or non-existence of some other fact.
Circumstantial evidence is of no less value than direct evidence, for it is a general rule that the law makes no distinction between direct evidence and circumstantial evidence but simply requires that your verdict must be based on all the evidence presented.
J. Witness Credibility
You have had the opportunity to observe the witnesses. It is now your job to decide how believable each witness was in his or her testimony. You are the sole judges of the credibility of each witness and of the importance of the witnesss testimony.
You should carefully scrutinize all of the testimony of each witness, the circumstances under which each witness testified, the impression the witness made when testifying, and any other matter in evidence that may help you decide the truth and the importance of each witnesss testimony.
In other words, what you must try to do in deciding credibility is to size up a witness in light of his or her demeanor, the explanations given, and all of the other evidence in the case. Always remember that you should use your common sense, your good judgment, and your everyday experiences in life to make your credibility determinations.
K. Bias of Witnesses
In deciding whether to believe a witness, you should specifically note any evidence of hostility or affection that the witnesses may have towards one of the parties. Likewise, you should consider evidence of any other interest or motive that the witness may have in cooperating with a particular party. You should take into account any evidence that a witness may benefit in some way from the outcome of the case.
It is your duty to consider whether the witness has permitted any such bias or interest to color his or her testimony. In short, if you find that a witness is biased, you should view the testimony with caution, weigh it with care, and subject it to close and searching scrutiny.
Of course, the mere fact that a witness is interested in the outcome of the case does not mean the witness has not told the truth. It is for you to decide from your observations and after applying your common sense and experience and all the other considerations mentioned whether the possible interest of any party or witness has intentionally or otherwise colored or distorted his or her testimony. You are not required to disbelieve an interested witness; you may accept as much of the testimony as you deem reliable and reject as much as you deem unworthy of acceptance.
L. Prior Inconsistent Statements
If you find that the witness made an earlier statement that conflicts with his or her trial testimony, you may consider that fact in deciding how much of the trial testimony, if any, to believe.
In making this determination, you may consider whether the witness purposely made a false statement or whether it was an innocent mistake; whether the inconsistency concerned an important fact, or whether it had to do with a small detail; whether the witness had an explanation for the inconsistency; and whether that explanation appealed to your common sense.
It is exclusively your duty, based upon all the evidence and your own good judgment, to determine whether the prior statement was inconsistent, and if so, how much, if any, weight to give to the inconsistent statement in determining whether to believe all or part of the witnesss testimony.
M. Deposition Testimony
Some of the testimony before you is in the form of deposition excerpts that have been received in evidence. A deposition is simply a procedure where the attorneys for one side may question a witness or an adverse party under oath before a stenographer prior to trial. This is part of the pretrial discovery, and each side is entitled to take depositions. You may consider the testimony of a witness given at a deposition according to the same standards you would use to evaluate the testimony of a witness given at trial.
Here, the depositions were also used as impeachment materials as one side or the other suggested that a witnesss trial testimony contradicted or was inconsistent with his or her deposition testimony. It is up to you to decide whether there was an inconsistency and what, if any, weight to give to any inconsistency.
N. Expert Witnesses
You heard the testimony of expert witnesses. You should not assume, simply because I allowed an expert to give an opinion, that either the opinion is correct or that I believe the opinion is correct.
When a case involves a matter requiring special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state his or her opinion for the information of the court and jury. The opinions stated by the experts who testified were based on particular facts as the expert observed them and testified to them, or as the expert was told by somebody else or as appeared from some paper or record. You may reject an experts opinion if you find the underlying facts to be different from those that formed the basis of the opinion. You may also reject the opinion, if, after careful consideration of all the evidence in the case, including expert and other testimony, you disagree with that opinion. In other words, you are not required to accept an experts opinion to the exclusion of the facts and circumstances disclosed by other evidence. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness, and it is allowed only to aid you in reaching a proper conclusion.
The testimony of the experts who testified in this trial is entitled to such weight as you find their qualifications in the field and the extent of their investigation and the validity of their assumptions warrant. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound or you feel it outweighed by other evidence, you may disregard the opinion of the expert witness entirely.
II. SUBSTANTIVE CHARGES
In this lawsuit, the plaintiff, Beatrice Morris, has sued the defendant, Gilbert Eversley, claiming that Mr. Eversley, while acting under color of state law, deprived her of her Eighth Amendment constitutional right to be free from cruel and unusual punishment. Mr. Eversley denies that he deprived Ms. Morris of any rights or privileges. Ms. Morris is seeking damages for the alleged violation of her constitutional rights under Section 1983 of Title 42 of the United States Code.
A. The Statute: 42 U.S.C. § 1983
Section 1983 reads in relevant part:
Every person who under color of any statute, ordinance, custom or usage of any State . . subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .
Section 1983 was created to give individuals whose constitutional rights were violated by state officials or others acting under the color of state law the right to sue for money damages in federal court.
Ms. Morris claims that while Mr. Eversley was acting under the color of authority of the State of New York as a Correctional Officer at the Bayview Correctional Facility, he intentionally violated her constitutional right to be free from cruel and unusual punishment.
Under the Eighth Amendment of the Constitution of the United States, every person convicted of a crime has the right to be free from cruel and unusual punishment. This includes the right not to be subjected to excessive force employed without legal justification. Sexual contact may constitute excessive force and by definition has no valid penal purpose or legal justification. As a matter of law, there can be no consent to any sexual acts between an inmate and a corrections officer. An inmate is considered incapable, under the law, of consenting to sexual contact with a corrections officer. Therefore, in considering Ms. Morriss claim, if you find that she has established by a preponderance of the evidence that Mr. Eversley subjected her to sexual contact, you must conclude that his acts were unwanted and non-consensual.
B. Elements of a Section 1983 Claim
To establish her claim under Section 1983, Ms. Morris must establish, by a preponderance of the evidence, each of the following three elements:
First, that at the time in question the defendant was acting under color of state law;
Second, that the defendant engaged in conduct that deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States; and
Third, that the defendants actions proximately caused the injuries and consequent damages sustained by the plaintiff.
1. First Element: Under Color of State Law
Action under color of state law means action that is made possible only because the actor is clothed with the authority of the state. Section 1983 forbids action taken under color of state law where the actor misuses power that he possesses by virtue of state law. What is important is that the defendant was clothed with the authority of state law, and that the defendants actions were made possible by virtue of state law.
Mr. Eversley denies that he committed the acts in question. If you find, however, that Mr. Eversley did commit those acts, it is undisputed that he was on duty and present in Bayview at the time in his capacity as a corrections officer, and that therefore he was acting under color of state law.
2. Second Element: Deprivation of Constitutional Right
The second element that Ms. Morris must prove by a preponderance of the evidence is that Mr. Eversley deprived her of a federal constitutional right. The second element has three sub-parts that plaintiff must establish by a preponderance of the evidence: first, that the defendant committed the acts alleged by plaintiff; second, that plaintiff suffered the loss of a federal constitutional right as a result; and third, that in performing the acts alleged, the defendant acted intentionally or recklessly. Let me briefly go through each of these three parts of the second element.
First, did the defendant commit the acts alleged by plaintiff? This sub-part requires no further explanation. If you are persuaded by a preponderance of the evidence that he did, you should proceed to consider the other two requirements of the second element. If you are not persuaded by a preponderance of the evidence that defendant committed the acts alleged by plaintiff, then your verdict must be for defendant.
Second, did plaintiff suffer the loss of a constitutional right? The constitutional right to be free of cruel and unusual punishment includes the right not to be subjected to sexual acts by a corrections officer while detained. Sexual contact by a corrections officer with an inmate serves no valid penological purpose and if you find that Mr. Eversley committed the acts alleged by Ms. Morris, then you must find that her Eighth Amendment rights were violated.
Third, did defendant act intentionally or recklessly? An act is intentional if it is done knowingly, that is, if it is done voluntarily and deliberately and not because of mistake, accident, negligence, or other innocent reason. An act is reckless if it is done in conscious disregard of its known and probable consequences. In determining whether Mr. Eversley acted intentionally or recklessly, you should remember that there is no way of looking into a persons mind. Therefore, you must look at what was done and what was said and your belief or disbelief with respect to those facts. Remember to use your common sense. Because of the sexual nature of the acts alleged here, if you find that the defendant performed the sexual acts alleged, you may find that he had the necessary culpable state of mind.
3. Third Element: Proximate Cause
The third element that Ms. Morris must prove under § 1983 is that Mr. Eversleys acts were a proximate cause of the injuries she sustained. Proximate cause means that there must be a sufficient causal connection between the act of the defendant and any injury sustained by the plaintiff. An act is a proximate cause if it was a substantial factor in bringing about or actually causing injury. Likewise, if the injury or damage was a reasonably foreseeable consequence of the defendants act, then the defendants act was a proximate cause of the injury. If an injury was a direct result or a reasonably probable consequence of a defendants act, it was proximately caused by such act. In other words, if a defendants act had such an effect in producing the injury that reasonable persons would regard it as being the cause of the injury, then the act is a proximate cause.
If you find that the plaintiff has met her burden of proof with respect to her Section 1983 claim, that is, that she has proven her claim by a preponderance of the evidence, then you must consider the issue of damages. The fact that I am giving you instructions on damages, however, should not be considered as any indication of mine as what your verdict should be. Rather, I am instructing you on damn s only so that you will have them in the event you decide that plaintiff is entitled to recover.
There are three types of damages that you may consider: compensatory damages, nominal damages, and punitive damages. I will discuss each of these in turn.
1. Compensatory Damages
If you find for plaintiff on the issue of liability, then you may award her compensatory damages, that is, a sum of money that you believe will fairly and justly compensate her for any injury you believe she actually sustained as a direct consequence of the conduct of the defendant. Compensatory damages seek to make the plaintiff whole -- that is, to compensate her for the damage that she has suffered. Therefore, if Ms. Morris prevails on her claim, she is entitled to compensatory damages for the physical injury, pain and suffering, mental anguish, shock, and discomfort that she has suffered as a result of Mr. Eversleys conduct.
You may award damages for any conscious pain and suffering that Ms. Morris proves she experienced as a consequence of Mr. Eversleys actions, again assuming you find that he violated her rights. There is no requirement that evidence of the monetary value of such intangible things as pain and suffering be introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these types of damages and no expert testimony need be introduced. Any award you make should be fair in light of the evidence presented at the trial.
In determining the amount of damages, if any, to be awarded plaintiff for pain and suffering, you may take into consideration the effect that plaintiffs injuries may have on her ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities that were a part of the persons daily life before the injury, and to experience the pleasures of life. A person suffers the loss of enjoyment of life, however, only if the person is aware of the loss that she has sustained. If you find that plaintiff, as a result of her injuries, has suffered some loss of the ability to enjoy life and that plaintiff is aware of that loss, you may take that loss into consideration in determining the amount to be awarded to plaintiff for pain and suffering.
You may award compensatory damages only for those injuries that you find that plaintiff has proven by a preponderance of the evidence. Moreover, you may award compensatory damages only for those injuries that you find plaintiff has proven by a preponderance of the evidence to have been the proximate cause of conduct by defendant in violation of Section 1983.
Compensatory damages must not be based on speculation or sympathy. They must be based on the evidence presented at trial, and only on that evidence.
I cannot give you a yardstick by which to measure the dollar value of pain or injury. You heard plaintiffs testimony about the injuries she sustained. You will have to determine based on your common sense and experience that amount of money that will fairly and reasonably make plaintiff whole or compensate her for the physical, psychological, or emotional pain and suffering that she sustained as a consequence of any intentional or reckless acts that violated her constitutional rights.
In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence.
2. Nominal Damages
If you find that the defendant violated the plaintiffs constitutional rights but that she has suffered no damages as a result of this violation, you are to award her nominal damages. Nominal damages are awarded as recognition that the plaintiffs rights have been violated and may not be awarded for more than a token amount. You would award nominal damages if you conclude that the only injury that plaintiff suffered was the deprivation of her rights, without any resulting physical, emotional, or financial harm.
Therefore, if you find that plaintiff has suffered no injury as a result of the defendants conduct other than the fact of a constitutional deprivation, you must award her nominal damages not to exceed one dollar.
3. Punitive Damages
If you award plaintiff compensatory or nominal damages, then you may, but are not required to, also make a separate and additional award of punitive damages. You may also make an award of punitive damages even though you find that the plaintiff has failed to establish actual damages. The fact that I am giving you instructions on punitive damages, however, should not be considered as an indication of any view of mine on what your verdict should be. Rather, instructions of punitive damages are given only so that you will have them in the event that you should find in favor of the plaintiff on the question of liability.
Punitive damages are awarded, in the discretion of the jury, to punish a defendant for extreme or outrageous conduct, or to deter or prevent a defendant or others from committing such conduct in the future.
You may award the plaintiff punitive damages if you find that the acts of the defendant were done maliciously or wantonly. An act is maliciously done if it is prompted by ill will or spite towards the injured person. An act is wanton if done in a reckless or callous disregard of, or indifference to, the rights of the injured person.
An intent to injure exists when a defendant has a conscious desire to violate federal rights of which he is aware, or when a defendant has a conscious desire to injure a plaintiff in a manner he knows to be unlawful. A conscious desire to perform the physical acts that caused a plaintiffs injury does not by itself establish that the defendant has a conscious desire to violate rights or to injure the plaintiff unlawfully.
If you find by a preponderance of the evidence that the defendant acted with malicious intent to violate the plaintiffs constitutional rights or unlawfully injure her or if you find that the defendant acted with a callous or reckless disregard of the plaintiffs rights, then you may award punitive damages. An award of punitive damages, however, is discretionary; that is, if you find that the legal requirements for punitive damages are satisfied, then you may decide to award punitive damages, or you may decide not to award them.
In making this decision, you should consider the underlying purpose of punitive damages. Punitive damages are awarded in the jurys discretion to punish a defendant for outrageous conduct, and to deter him and others from engaging in similar conduct in the future. Thus, in deciding whether to award punitive damages, you should consider whether the defendant may be adequately punished by an award of compensatory damages only, or whether the conduct is so extreme and outrageous that compensatory damages are inadequate to punish the wrongful conduct. Finally, you should consider whether punitive damages are likely to deter or prevent others from engaging in similar wrongful conduct.
If you decide to award punitive damages, these same purposes should be considered by you in determining the appropriate sum of money to be awarded as punitive damages. That is, fixing the sum to be awarded, you should consider the degree to which an award of one sum or another will deter the defendant or persons like him from committing wrongful acts in the future.
The amount of an award of punitive damages must not reflect bias, prejudice, or sympathy toward any party. The amount can, however, be as large as you believe necessary to fulfill the purposes of punitive damages.
The extent to which a particular sum of money will adequately punish a defendant, and the extent to which a particular sum will adequately deter or prevent future misconduct, may depend upon the financial resources of the defendant against whom damages are awarded. Therefore, if you find that punitive damages should be awarded against the defendant, you may consider the financial resources of the defendant in fixing the amount of such damages.
III. FINAL GENERAL CHARGES
A. Right to See Exhibits and Hear Testimony; Communications with Court
Ladies and gentlemen of the jury, that about concludes my instructions to you. You are about to go into the jury room to begin your deliberations. If during those deliberations you want to see any of the exhibits, you may request that they be brought into the jury roam. If you want any of the testimony read, you may also request that. Please remember that it is not always easy to locate what you might want, so be as specific as you possibly can in requesting exhibits or portions of the testimony. If you want any further explanation of the law as I have explained it to you, you may also request that.
Your requests for exhibits or testimony -- in fact any communications with the Court -- should be made to me in writing, signed by your foreperson, and given to one of the marshals. In any event, do not tell me or anyone else how the jury stands on any issue until after a unanimous verdict is reached.
Many of you have taken notes periodically throughout this trial. I want to emphasize to you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes that any of you may have made may not be given any greater weight or influence in determination of the case than the recollections or impressions of other jurors, whether from notes or memory, with respect to the evidence presented or what conclusions, if any, should be drawn from such evidence. Any difference between a jurors recollection and another jurors notes should be settled by asking to have the court reporter read back the transcript, for it is the court record rather than any jurors notes upon which the jury must base its determination of the facts and its verdict.
C. Duty to Deliberate/Unanimous Verdict
You will now retire to decide the case. For the plaintiff to prevail on her claim, she must sustain her burden of proof as I have explained it to you with respect to each element of her claim. If you find that plaintiff has succeeded with respect to her claim, you must return a verdict in her favor. If you find that she has not, then your verdict must be for the defendant.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for himself or herself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is wrong. Your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict solely because of the opinion of other jurors. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that conclusion which in your good conscience appears to be in accordance with the truth.
D. Verdict Form
I have prepared a verdict form for you to use in recording your decisions. These questions are to be answer yes or no or, where applicable, with a specific dollar amount. Your answers must reflect the conscientious judgment of each juror. You should answer every question except where the verdict form indicates otherwise.
E. Return of Verdict
After you have reached a verdict, your foreperson will fill in the form that has been given to you, sign and date it and advise the marshal outside your door that you are ready to return to the courtroom.
I will stress that each of you must be in agreement with the verdict that is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
F. Duties of Foreperson
You should by your own vote select one of you to sit as your foreperson. The foreperson will send out any notes, and when the jury has reached a verdict, he or she will notify the marshal that the jury has reached a verdict, and you will come into open court and give the verdict.
Members of the jury, that concludes my instructions to you. I will ask you to remain seated while I confer with the attorneys to see if there are any additional instructions that they would like to have me give to you or anything I may not have covered in my previous statement.
In this regard, I ask you not to discuss the case while seated in the box because the case has not yet been formally submitted to you.