Washington State Supreme Court Committee on Jury Instructions
Part I. General Instructions
Chapter 1. Introductory and General
WPI 1.01 Advance Oral Instruction—Beginning of Proceedings
Part I (Before prospective jurors are questioned)
You are here because we are at the beginning of a jury trial in a civil case. The first stage of the trial is jury selection, which is sometimes called voir dire.
The purpose of this process is to make sure that we select a jury that is free from any outside or pre-existing bias that might interfere with the jury's ability to fairly decide the case based on the evidence and the law that you receive in this courtroom.
You have already met [Mr.][Ms.](name), our court bailiff. The bailiff's job is to assist you. If there is anything we can do to better accommodate you as a juror, please let the bailiff know. The bailiff will involve me if that is necessary. Please follow any instructions that [he] [she] gives you.
The court clerk is [Mr.][Ms.](name). The clerk's job is to mark and handle exhibits and other significant papers.
[The court reporter is [Mr.][Ms.](name). It is the court reporter's job to take verbatim notes of the proceedings.]
Now, I would like to introduce the case, the parties and counsel to you. Any case in the court system has a title or caption to it. The first named party is denominated the plaintiff and that is the party that has instituted the lawsuit. The second named party is denominated the defendant and it is the defendant's role to defend against the claims brought by the plaintiff. In this case, the title or caption is (v. ). The plaintiff(name)is seated at counsel table and is represented by counsel(name). [Please introduce yourselves.] The defendant(name)is seated at counsel table and is represented by(name).
[In this courtroom we record all proceedings with a [video][audio] recording system. All of the proceedings are preserved to create a “court record.”]
(The judge now provides a brief and neutral summary of the claims and defenses of each party.)
It is important that you discharge your duties without discrimination, meaning that bias regarding the race, color, religious beliefs, national origin, sexual orientation, gender, or disability of any party, any witnesses, and the lawyers should play no part in the exercise of your judgment throughout the trial These are called “conscious biases”—and, when answering questions, it is important, even if uncomfortable for you, to share these views with the lawyers.
However, there is another more subtle tendency at work that we must all be aware of. This part of human nature is understandable but must play no role in your service as jurors. In our daily lives, there are many issues that require us to make quick decisions and then move on. In making these daily decisions, we may well rely upon generalities, even what might be called biases or prejudices. That may be appropriate as a coping mechanism in our busy daily lives but bias and prejudice can play no part in any decisions you might make as a juror. Your decisions as jurors must be based solely upon an open-minded, fair consideration of the evidence that comes before you during trial.
In a moment, I am going to ask you some background questions and the lawyers will also have a chance to follow up with some questions of their own. Most importantly, you are to look within yourselves and see if there is anything there in your life experiences or your personal beliefs that might be such a strong influence that it would overcome your ability to serve as a fair and impartial juror. These questions may sometimes involve issues that are sensitive for you. If you are uncomfortable answering any particular question in front of the other jurors, please let me know or notify the bailiff. We may then discuss other ways to handle this question.
Before any questions are asked, an oath or affirmation will be administered. All of your answers must be open, honest, and forthright. At this time, I ask that you please rise, raise your right hand, and [I] [the clerk] will administer this oath.
“Do you solemnly swear or affirm that you will truthfully answer such questions as may be asked of you by the court or the attorneys concerning your qualifications to act as jurors in this case? [Please respond.]”
When jurors are given the job of resolving a dispute like this, they do it by applying what is called the burden of proof. Burden of proof refers to the measure or amount of evidence required to prove a fact. In this case, the burden of proof is proof by a preponderance of the evidence. A preponderance of the evidence means the greater weight of the evidence. If a proposition has been shown to be more likely than not true, there is a preponderance of evidence in favor of that proposition. This is a lower burden than that of proof beyond a reasonable doubt-the standard applied in a criminal trial.
During your deliberations, you must apply the law to the facts that you find to be true. It is your duty to accept the law from my instructions, regardless of what you personally believe the law is or what you think it ought to be. You are to apply the law you receive from my instructions to the facts and in this way decide the case.
(The judge then explains the procedure for jury selection and jury selection is conducted.)
Part II (After jury is selected)
I will now say a few words about the role and function each of us plays during a jury trial. Jury selection is important but what jurors say in jury selection is not evidence. From this point forward, it is essential that all of your decisions be based upon the evidence and the law that come to you in this courtroom and only in this courtroom.
You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. This includes electronic conversations as well as oral ones. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.
Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts that may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.
During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.
During the trial, do not provide information about the case to other people, including any of the lawyers, parties, witnesses, your friends, members of your family, or members of the media. If necessary, you may tell people (such as your employer or your child's daycare provider) that you are a juror and let them know when you need to be in court. If people ask you for more details, you should tell them that you are not allowed to talk about the case until it is over.
I want to emphasize that the rules prohibiting discussions include your electronic communications. You must not send or receive information about anything related to the case by any means, including by text messages, email, telephone, internet chat, blogs, or social networking web sites. Do not even mention being on a jury when using social media, such as updating your status on Facebook or sending a message on Twitter. You don't want to do anything that will invite others to talk to you about your jury duty.
In short, do not communicate with anyone, by any means, concerning what you see or hear in the courtroom, and do not try to find out more about anything related to this case, by any means, other than what you learn in the courtroom. These rules ensure that the parties will receive a fair trial. If you have any questions about these restrictions, please contact [the bailiff] [(insert other appropriate staff person)].
If you become exposed to any information other than what you learn in the courtroom, that could be grounds for a mistrial. A mistrial would mean that all of the work that you and your fellow jurors put into this trial will be wasted. Re-trials are costly and burdensome to the parties and the public. Also, if you communicate with others in violation of my orders, you could be fined or held in contempt of court.
After you have delivered your verdict, you will be free to do any research you choose and to share your experiences with others.
[Remember that all phones, laptops, and other communication devices must be turned off while you are in court and while you are in deliberations.]
Throughout this trial, you must come and go directly from the jury room. [Follow the bailiff's instructions about where to wait in the courthouse and areas that you should avoid.] Do not remain in the hall or courtroom, as witnesses and parties may not recognize you as a juror, and you may accidentally overhear some discussion about this case. Even a communication about an unrelated topic might give a bad impression to others, therefore I have instructed the lawyers, parties, and witnesses not to greet or talk to you during trial.
I want to comment on one other aspect of your role and that is the importance of keeping an open mind throughout the various stages of these proceedings. The trial has a sensible order to it as each side presents and develops its position.
First: The lawyers will have an opportunity to make opening statements outlining the testimony of witnesses and other evidence that they expect to be presented during trial.
Next: The plaintiff will present the testimony of witnesses or other evidence to you. When the plaintiff has finished, the defendant may present the testimony of witnesses or other evidence. Each witness may be cross-examined by the other side.
Next: When all of the evidence has been presented to you, I will instruct you on what law applies to this case. I will read the instructions to you out loud. You will have [individual copies of] the written instructions with you in the jury room during your deliberations.
Next: The lawyers will make closing arguments.
Finally: You will be taken to the jury room by the bailiff where you will select a presiding juror. The presiding juror will preside over your discussions of the case, which are called deliberations. You will then deliberate in order to reach a decision, which is called a “verdict.” During your deliberations, you must apply the law that I provide to you in my instructions to the facts that you find to have been proven.
Until you are in deliberations, you must make sure you are maintaining open minds. If you were to form premature opinions about the case, this would interfere with your ability to get the benefit of each of the subsequent stages.
The attorneys' role is to represent and advocate for the positions of their respective clients. The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. However, the lawyers' statements are not evidence or the law. The evidence is the testimony and the exhibits. The law is contained in my instructions. You must disregard anything the lawyers say that is at odds with the evidence or the law in my instructions.
You may hear objections made by the lawyers during trial. Each party has the right to object to questions asked by another lawyer. These objections should not influence you. Do not make any assumptions or draw any conclusions based on a lawyer's objections.
When there is an objection, it is my job to rule on it. One of my duties as judge is to decide whether or not evidence should be admitted during this trial. What this means is that I must decide whether or not you should consider evidence offered by the parties. For example, if a party offers a photograph as an exhibit, I will decide whether it is admissible. Do not be concerned about the reasons for my rulings. You must not consider or discuss any evidence that I do not admit or that I tell you to disregard.
Our state constitution prohibits a trial judge from making a comment on the evidence. For example, it would be improper for me to express my personal opinion about the value of a particular witness's testimony. Although I will not intentionally do so, if it appears to you that I have indicated my personal opinion concerning any evidence, you must disregard that opinion entirely. The reason for this constitutional rule is that it is solely the role of the jurors to weigh and evaluate the evidence in the case.
You will be allowed to propose written questions to witnesses after the lawyers have completed their questioning. You may ask questions in order to clarify the testimony, but you are not to express any opinion about the testimony or argue with a witness. If you ask any questions, remember that your role is that of a neutral fact finder, not an advocate.
Before I excuse each witness, I will offer you the opportunity to write out a question on a form provided by the court. Do not sign the question. I will review the question to determine if it is legally proper.
There are some questions that I will not ask, or will not ask in the wording submitted by the juror. This might happen either due to the rules of evidence or other legal reasons, or because the question is expected to be answered later in the case. If I do not ask a juror's question, or if I rephrase it, do not attempt to speculate as to the reasons and do not discuss this circumstance with the other jurors.
By giving you the opportunity to propose questions, I am not requesting or suggesting that you do so. It will often be the case that a lawyer has not asked a question because it is legally objectionable or because a later witness may be addressing that subject.
All proceedings in this trial are recorded [by the court reporter] [through electronic means]. Deliberating juries are rarely, if ever, given access to transcripts or recordings of trial testimony. For this reason, you must pay close attention as the testimony is being presented.
The related point is that you are allowed to take notes during trial. I am not instructing you to take notes, nor am I encouraging you to do so. Taking notes may interfere with your ability to listen and observe. If you choose to take notes, I must remind you to listen carefully to all testimony and to carefully observe all witnesses.
At an appropriate time, the bailiff will provide a note pad and a pen or pencil to each of you. Your juror number will be on the front page of the note pad. You must take notes on this pad only, not on any other paper. You must not take your note pad from the courtroom or the jury room for any reason. When you recess during the trial, please(insert appropriate instruction; see Note on Use). At the end of the day, the note pads must be left(insert appropriate instruction; see Note on Use). While you are away from the courtroom or the jury room, no one else will read your notes.
You must not discuss your notes with anyone or show your notes to anyone until you begin deliberating on your verdict. This includes other jurors. During deliberation, you may discuss your notes with the other jurors or show your notes to them.
You are not to assume that your notes are necessarily more accurate than your memory. I am allowing you to take notes to assist you in remembering clearly, not to substitute for your memory. You are also not to assume that your notes are more accurate than the memories or notes of the other jurors.
After you have reached a verdict, your notes will be collected and destroyed by the bailiff. No one will be allowed to read them.
Now that you have been empaneled as jurors, you need to take another oath. Please stand and raise your right hand and [I] [the clerk] will administer this oath.
“Do you solemnly swear or affirm that you will well and truly try this case and render a true verdict based upon the evidence and the law? Please respond.”
Having taken your oath as jurors, you are now what the law calls and considers officers of this court. As such, you must not let your emotions overcome your rational thought process. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions.
To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.
Thank you for your willingness to serve this court and our system of justice.
NOTE ON USE
This is not one of the written instructions on the law. Part 1 of this instruction is to be read to the panel of prospective jurors before beginning jury selection. Part 2 is to be read after jury selection is completed.
A decision must be made as to how much of this advance oral instruction, WPI 1.01, is appropriate in a particular case.
If the case involves parties other than the plaintiff and defendant, such as a cross-claimant or third-party defendant, the portion of the instruction introducing the parties will need to be modified.
If the burden is other than preponderance of evidence, the paragraph discussing burden of proof must be modified. For the burden of proof in a fraud case, for example, see WPI 160.02 (Fraud—Burden of Proof).
Do not use the bracketed reference to the court reporter when the proceedings are recorded by video or audio recorder. Use the bracketed language on jurors receiving individual copies of the final instructions as applicable.
The judge's statement of the parties' claims should be restricted to a brief overview. If the judge chooses to preliminarily instruct the jurors as to the elements constituting these claims, and any related legal issues, the judge may do so by incorporating WPI 1.01.03 (Advance Oral Instruction—Preliminary Instruction on Claims and Defenses) at the end of this instruction.
The instruction's paragraphs on juror note-taking include two blank spaces. In the first blank space, insert an appropriate instruction to jurors regarding where to leave their notes during court recesses, such as “leave your note pad on your chair” or “take your note pad with you to the jury room.” In the second blank space, insert an appropriate instruction regarding where jurors are to leave their note pads at the end of the day, such as “in the jury room” or “on your chair.”
The instruction's paragraphs about prohibited juror communications and avoiding outside information about the trial are intended for routine cases. For a higher publicity case, the judge should consider expanding on these provisions.
COMMENT
This instruction has been reorganized and revised for this edition.
Unconscious and conscious bias. This instruction incorporates, in several places, new language concerning both unconscious and conscious bias.
In drafting the language on unconscious and conscious bias, the WPI Committee carefully reviewed the preliminary oral instructions recently adopted for use in criminal cases in the United States District Court, Western District of Washington. There are slight modifications and additions designed, in part, to avoid the state constitutional provision on commenting on the evidence. Wash. Const. art IV, § 16. The original instructions from the district court are set forth at http://www.wawd.uscourts.gov/jury/unconscious-bias (last visited November 15, 2017).
A trial court is not constitutionally-required to sua sponte question potential jurors about potential racial bias or to instruct on such issues. State v. Davis, 141 Wn.2d 798, 826–34, 10 P.3d 977 (2000) (death penalty case.) The Davis court discussed the possibility of “unnecessarily bringing [issues of race] to the attention of jurors” by such inquiry when not requested by defense counsel. Davis relied heavily on jurisprudence from the United States Supreme Court, in particular on the death penalty case of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), and contains a thorough review of federal case law. The United States Supreme Court in Peña-Rodiguez v. Colorado, U.S. , 137 S.Ct. 855, 869, 197 L.Ed.2d 107 (2017), concluded that the general rule against impeaching a jury verdict must fall when a juror has indicated that he or she relied on racial animus or stereotypes in reaching the verdict. In Turner v. Stime, 153 Wn.App. 581, 222 P.3d 1243 (2009), the court concluded that statements of clear racial bias made by a juror concerning plaintiff's counsel do not “inhere in the verdict” and that it was proper for the trial court to grant a new trial upon proof that such statements were made.
The Washington Supreme Court has emphasized the dangers of racial bias impacting the fairness of a trial. For example, in State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), the court unanimously reversed a conviction for prosecutorial misconduct in referring to an “anti-snitch code” allegedly prevalent in the African American community, concluding that when racial bias is shown, it becomes the State's burden to show harmlessness beyond a reasonable doubt. See also City of Seattle v. Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017) (when the sole member of a racially cognizable group has been subject to a peremptory challenge by the State, a prima facie case of discriminatory purpose has been established).
Voir Dire. The term voir dire has been replaced in several places in the instruction for the purpose of better juror comprehension. No substantive change is intended.
Questioning jurors individually. Although this is more common in criminal cases than in civil, the subject matter of the trial may make it necessary to conduct individual questioning on particularly sensitive or private matters. If a juror expresses discomfort in answering such questions in front of the entire panel or if the court determines that all jurors should be questioned individually given the subject matter, individual questioning can occur. Individual questioning may also be warranted when there is a concern that the panel may be unduly influenced by the answers of other potential jurors or if there has been substantial media interest in the case. However, the courtroom must not be closed to the public unless the Ishikawa factors are met and the court's findings included in the record. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982). Accord, State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
Absent Ishikawa findings on the record, the courtroom is open during individual questioning of prospective jurors to all members of the public and to the media. It is only the other jurors who are not present for the individual questioning. See State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009). It should be noted that when a juror questionnaire is used as part of jury selection, review of the completed questionnaire in chambers, as a general rule, does not violate the clear mandate of the Washington Constitution, Article I, § 10 that “justice in all cases shall be administered openly.” State v. Slert, 181 Wn.2d 598, 602–608, 334 P.3d 1088 (2014). Although the Supreme Court in Slert reversed the Court of Appeals as to its specific conclusion, the Court of Appeals decision does contain a thorough discussion of the law in this area. State v. Slert, 169 Wn.App. 766, 282 P.3d 101 (2012).
Juror questions for witnesses. CR 43 and CRLJ 43 both require that jurors, in civil cases, be permitted to ask questions of witnesses. The rules read as follows:
The court shall permit jurors to submit to the court written questions directed to witnesses. Counsel shall be given an opportunity to object to such questions in a manner that does not inform the jury that an objection was made. The court shall establish procedures for submitting, objecting to, and answering questions from jurors to witnesses. The court may rephrase or reword questions from jurors to witnesses. The court may refuse on its own motion to allow a particular question from a juror to a witness.
CR 43(k); CRLJ 43(k).
The Washington State Jury Commission recommended that the judge use the following procedures for handling juror questions submitted for witnesses:
1. At the conclusion of each witness's testimony, the court asks if jurors have written questions, which are brought to the judge;
2. Outside the presence of the jury, counsel are given the opportunity to make objections to the question or to suggest modifications to the question, by passing the written question between counsel and the court during a side-bar conference or by excusing jurors to the jury room;
3. The judge asks the question of the witness;
4. Counsel are permitted to ask appropriate follow-up questions; and
5. The written questions are made part of the record.
Washington State Jury Commission Report, Recommendation 33 (July 2000) (narrative section). Additionally, the judge may rephrase, reword, or refuse to allow particular juror questions, see CR 43(k) and CRLJ 43(k), and objections to the written questions should be made a part of the record.
Juror note-taking. Jurors must be permitted to take notes during civil trials. However, the judge has discretion in deciding whether to allow jurors to review their own notes in the jury room during recesses. CR 47(j); CRLJ 38(h).
Copies of instructions. The instruction includes a bracketed phrase informing jurors that at the end of the trial they will each receive a copy of the final instructions. The Washington State Jury Commission has recommended that this practice be adopted, to the extent feasible. Washington State Jury Commission's Report to the Board for Judicial Administration, Recommendation 35 (July 2000) (for text see Appendix G of this volume). This practice helps jurors to more readily understand the final instructions and improves their deliberation process. See the Jury Commission's Report, Recommendation 35 (accompanying narrative section).
Repeating testimony. See the Comment to WPI 6.19 (Jurors Rehearing Trial Testimony—Cautionary Instruction).
Improper juror communications. The instruction warns jurors, after they have been selected to serve on a case, against participating in improper communications and research about the case. Some of this information, however, should be given to potential jurors before they arrive in the courtroom for jury selection. Courts should make sure that potential jurors who are reporting for jury duty know that they should not seek out or receive any information about pending legal cases or issues.
Because it is juror misconduct to “extra-judicially acquire case-specific information during the course of the trial,” State v. Tigano, 63 Wn.App. 336, 341, 818 P.2d 1369, 1372 (1991), it is important to so notify the jurors at the outset.
and considersofficers of this court. As such, you must not let your emotions overcome your rational thought process. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions.