3.Preliminary Jury Instructions

THE COURT: All right. Ladies and gentlemen, let's all be seated when you get to your spot. I want to give you some preliminary instructions, and then we are going to go right into the opening statements.

As I previously told you earlier today, your function, ladies and gentlemen of the jury, is to decide the issues of fact in this case. You are the deciders of fact. You are to base your decision on the issues of fact solely on the evidence. Nothing that I say is evidence. Nothing that the lawyers say is evidence. A question is never evidence. It's the answer to the question that is evidence.

Objections aren't evidence. Evidence will come in in the form of testimony from the witnesses who were sworn under oath and who are testifying at trial, or in the form of documents which are formally received into evidence.

Now, there are two kinds of evidence. There is direct evidence and also circumstantial evidence, and I'll just spend a moment about this.

Direct evidence is something that you have or a witness has seen, felt, heard, touched, with one of their senses directly. They were there. They can tell you about X. They heard X. They saw X. Whatever -- you know, whatever they heard or saw directly, that's direct evidence.

But circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. So, in other words, you've got several of the dots but you don't have every dot in the picture, but you could infer from the placement of several of these dots along the edges that certain other facts occur. So let me give you a typical example.

Let's assume that the windows are closed and you come in this morning and it is sunny outside. Over the course of the day you see folks coming in and they're coming in and they've got raincoats on and they are dripping and there is an umbrella and it is dripping wet. Now, you can't see outside. You haven't seen the rain. But you can infer, based upon the fact that you've got people dripping wet with umbrellas, that it's raining outside. That is circumstantial evidence. It is not more complicated than that. It is taking certain facts and it's from those facts inferring other facts.

Now, both kinds of evidence are evidence that you can use as you deem appropriate in considering whether or not certain facts have been proven at trial. Now, you're going to hear from witnesses. They're going to come to court. They're going to testify here in front of you. And you, ladies and gentlemen of the jury, are going to have to determine whether or not you believe them, how credible do you find a particular witness. And how do you decide that? You decide that based upon how you decide that every single day in your own life. Every single day in your own life you apply your common sense to whether or not you believe somebody. And you assess all kinds of things. What's is their demeanor? How are they presenting themselves? Are they being evasive? And we'll talk more about that at the end of the case. But it will be up to you to decide how much of a witness' testimony to believe -- some of it, all of it, none of it. That will be up to you in your assessment of their credibility.

Now, in terms of the burden of proof, as I said at the very beginning, the burden of proof in a criminal case is on the government. It is the government's responsibility to prove that the defendant is guilty beyond a reasonable doubt. It is the government's burden of proof. The defendant does not carry a burden of proof in a criminal trial. And as I mentioned before, the Indictment in this case is simply an accusation; it is not proof of anything. All right? The fact that the defendant has been indicted is not proof of anything. He has pled not guilty and that's why we're here at this trial.

Now, I will instruct you at the end of the evidence about what it means to say that something is beyond a reasonable doubt. But let me just say that the defendant and his lawyers need not present any evidence in this case if they choose not to do so, because the burden, as I said before, the burden is on the government. And you can't draw any negative inference against the defendant if he does not present evidence. Now, it's very important that you keep an open mind until the close of the evidence. Evidence is not like reading a story in chronological order. Evidence comes in in pieces. You get a little bit of it from one witness and it might be out of chronological order. You need another witness or other documents to fill in some of the other pieces. So it's very important that you keep an open mind. Because you'll hear one part of a story but you might not hear the other part of the story until later. So it is very important that you keep an open mind until all of the evidence is in.

The way it proceeds is that, in terms of the evidence, the government will present its evidence first. It is going to give its opening statement. The defendant will give his opening statement, through counsel. Witnesses will be called. The government will do direct examination. Then there is an opportunity for the defense to cross-examine a witness, if they choose to do so. And after that there may be some limited redirect and recross. It depends on how it goes. But that is the way in which it proceeds.

Now, there may be instances where you've got friends or family who you see in the courtroom or people that you know in the courtroom. It is very important that if you have anybody in the courtroom who you know, that you let us know, and that you not speak to that person about the case. Because as you know, you come in and out of the room at times when we bring you in and out of the room, and there may be rulings on evidence and other discussions which you are not present for. And we don't want you inadvertently to be hearing things that the jury shouldn't be hearing through a friend and/or relative inadvertently. So if Joe knows about it, then we will know to be able to give a special instruction on that day. It's just a reminder of what I have said.

Now, it is very important not to speak to anybody about this case, each other, anybody at all -- a spouse, anybody in your life. You've got to keep this to yourself until the close of all the evidence, and then when you are instructed on the law you will go into the jury room and you will deliberate and talk to each other. And until you reach a verdict, you still won't talk to anybody other than each other about this case. So you can't even talk to each other until all the evidence is in and you have been instructed on the law.

Now, it's very important that you also not be exposed to what the media has to say about this case, what newspapers have to say about this case or Internet blogs or people outside who may approach you. Do not let anybody approach you, talk about this case at all. OK? If anybody approaches you about this case, do not speak with them about this case at all. Don't go home and do any Internet research. Don't try to become an expert in anything or follow up on your own personal research about a particular person, place or event. For purposes of this case, you just receive the evidence in this courtroom. That is the only evidence that you should receive in this case.

You don't want to -- and, actually, people have done this and it just leads to all kinds of difficulties. Don't update your Facebook page saying I'm on, you know, X case. This is what we heard today. You know, don't update your Facebook page. Don't Twitter or tweet or send emails to people about it or texts or anything else. And I will be reminding you about not talking to each other or anybody else about this case repeatedly. And you are going to be sick to death hearing me talk about it, but it is important that I keep doing it. Every once in a while I will change the way I do it so I can try to make it a little bit different.

Now, I see some of you have the pads and pens for taking notes. Take notes if you want to take notes. Different people learn in different ways and you remember things in different ways. Sometimes it helps keep you attentive. It is up to you.

Your notes are for you and you alone. They are not for you to share with your neighbor. It is not to play Tic-Tak-Toe with your neighbor. Believe it or not, that's happened in the past. So your notes are for you and you alone. And you'll leave them here at the end of the day under your chair or if you've got a particular spot in the room, and others shouldn't be looking at your notes. They are for you and you alone. Now, the lawyers here -- everybody here in this room, and in fact everybody, if there is anybody else in the room who you ever run into, but particularly the lawyers, they're not going to say hello to you because I've told them they are not allowed to say hello to you. They are not being mean or rude or nasty. OK? It is just complicated. Because if somebody says hello and they say hello in a particular way, you're like are they trying to convey a message to me. I don't want any of that. It is just easier if I say don't say hello to any of the jurors. So they'll probably cast their eyes down or look to the side. Don't think they're being rude. I've just told them don't talk to the jurors. OK?

And you shouldn't talk to them either. It's just easier. It makes things cleaner. That way there is never a question about whether anybody meant something from a particular hello.

Now, LiveNote. I use LiveNote. LiveNote is a particular program which allows me to get realtime feed of what I am saying right now and anything else that is said in the courtroom. So what the court reporter is writing down I have on my screen. I do not do email, I do not surf the web, you know, while I'm here on trial. If you see me looking at my screen, I'm not figuring out, you know, anything other than just what's going on, has my screen gone to sleep. If I'm tapping it, it is because I am trying to put my name back in to open it up again. That is why I look at my screen sometimes. I want you to know so that you don't think I am distracted.

All right. Now, beverages in the courtroom. My practice in my particular courtroom is that you can have beverages at your seat. You can have water. You can have hot tea. Cold tea. I really couldn't care less what kind of beverages, nonalcoholic beverages. You can have coffee. My view is what is good for the goose is good for the gander. I am going to have coffee and I don't want to do that if you guys can't have coffee.

Sometimes people find it difficult to be in their seats all afternoon without having a little something to eat because they feel like they just need a little something. I don't care. Just don't bring in Doritos where you are crunching. OK? If you just need to eat a little something, that is fine. Whatever makes you comfortable. It's not like you are going to sit there with popcorn. This is not that kind of a situation. But my point is I want you to be comfortable. All right?

And so if you spill, own up to it. It is not a problem. That way we can make sure it doesn't get into the carpet and stain it forever more because it is the government. I don't get new carpet more than once every couple of decades. All right?

Now, we are going to go into opening statements. Opening statements are the opportunity for the lawyers to speak to you. They have very few opportunities to speak directly to you. They have an opportunity now to speak directly to you and to give you an overview as to what they think, what their view is as to what the evidence will show. Again, what the lawyers say is not evidence. And it will be up to you to decide whether or not the evidence at trial has in fact shown what anyone predicts that it might show.

Then we're going to go from the opening statements of each side into the witnesses. And after all the evidence is done a couple of weeks from now, we will then have closing statements, or summations; it is the same thing. And that will be another opportunity for the defense counsel to then address you again about what they think the evidence has shown.

All right. I think that we're ready to proceed.

Mr. Howard.