United States District Court, S.D. Texas, Houston Division
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE
of the Jury:
have now heard the evidence in the case. In any jury trial
there are, in effect, two judges. I am one of the judges; the
other is the jury. It is my duty to preside over the trial
and to decide what testimony and evidence is relevant under
the law for your consideration. It is also my duty at the end
of the trial to explain to you the rules of law that you must
follow and apply in arriving at your verdict.
I will give you some general instructions that apply in every
case, such as instructions about the burden of proof and how
to judge the believability of witnesses. Next I will give you
some specific instructions on the law that applies in this
case. I will then give you final instructions explaining the
procedures for you to follow in your deliberations.
jurors, are the judges of the facts. But in determining what
actually happened, that is, in reaching your decision as to
the facts, it is your sworn duty to follow all of the rules
of law as I explain them to you. You have no right to
disregard, or give special attention to, any one instruction,
or to question the wisdom or correctness of any rule I may
state to you. You must not substitute or follow your own
notion or opinion as to what the law is or ought to be. It is
your duty to apply the law as I explain it to you, regardless
of the consequences. It is also your duty to base your
verdict solely on the evidence, without prejudice or
sympathy. That was the promise you made and the oath you took
before being accepted by the parties as jurors, and they have
the right to expect nothing less.
indictment, or formal charge, against a defendant is not
evidence of guilt. Indeed, every defendant is presumed by the
law to be innocent. Every defendant begins with a clean
slate. The law does not require a defendant to prove his
innocence or to produce any evidence at all.
government has the burden of proving the defendant guilty
beyond a reasonable doubt, and if it fails to do so, you must
acquit the defendant. While the government’s burden of
proof is a strict or heavy burden, it is not necessary that
the defendant’s guilt be proved beyond all possible
doubt. It is only required that the government’s proof
exclude any “reasonable doubt” about the
defendant’s guilt. A “reasonable doubt” is
a doubt based on reason and common sense after careful and
impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt, therefore, is proof of such
a convincing character that you would be willing to rely and
act on it without hesitation in making the most important
decisions in your own life.
told you earlier, it is your duty to determine the facts. To
do so, you must consider only the evidence presented during
the trial. Evidence is the sworn testimony of the witnesses,
including stipulations, and the exhibits. The questions,
statements, objections, and arguments made by the lawyers are
not evidence. The function of the lawyers is to point out
those things that are most helpful to their side of the case,
and in so doing to call your attention to certain facts or
inferences that might otherwise escape your notice. In the
final analysis, it is your own recollection and
interpretation of the evidence that controls in this case.
What the lawyers say is not binding on you.
the trial, I sustained objections to certain questions and
exhibits. You must disregard those questions and exhibits
entirely. Do not speculate as to what the witness would have
said if permitted to answer the question, or what the exhibit
might have contained. Do not consider any testimony or other
evidence that was removed from your consideration in reaching
your decision. Your verdict must be based solely on the
legally admissible, and admitted, evidence and testimony.
do not assume from anything I did or said during the trial
that I have any opinion about any of the issues in this case.
Except for my instructions to you on the law, you should
disregard anything I said during the trial in arriving at
your own verdict.
considering the evidence, you are permitted to draw such
reasonable inferences from the testimony and exhibits as you
feel are justified in the light of common experience. In
other words, you may make deductions and reach conclusions
that reason and common sense lead you to draw from the facts
that have been established by the evidence. Do not be
concerned about whether the evidence is “direct
evidence” or “circumstantial evidence.” You
should consider and weigh all of the evidence that was
presented to you. “Direct evidence” is the
testimony of one who asserts actual knowledge of a fact, such
as an eyewitness. “Circumstantial evidence” is
proof of a chain of events and circumstances indicating that
something is or is not a fact. The law makes no distinction
between the weight you may give to either direct or
circumstantial evidence. But the law requires that you, after
weighing all of the evidence, whether direct or
circumstantial, be convinced of Ms. Swenson’s guilt
beyond a reasonable doubt before you can find her guilty.
emphasize that it is your job to decide whether the
government has proved the guilt of the defendant beyond a
reasonable doubt. In doing so, you must consider all of the
evidence. This does not mean, however, that you must accept
all of the evidence as true or accurate. You are the sole
judges of the credibility or “believability” of
each witness and the weight to be given the witness’s
testimony. An important part of your job as jurors will be
making judgments about the testimony of the witnesses who
testified in this case. You should decide whether you believe
all, some part, or none of what each person had to say and
how important that testimony was.
making that decision, I suggest that you ask yourself a few
questions. Did the witness impress you as honest? Did the
witness have any particular reason not to tell the truth? Did
the witness have a personal interest in the outcome of the
case? Did the witness have any relationship with either the
government or the defense? Did the witness seem to have a
good memory? Did the witness clearly see or hear the things
about which he testified? Did the witness have the
opportunity and ability to understand the questions clearly
and answer them directly? Did the witness’s testimony
differ from the testimony of other witnesses? These are a few
of the considerations that will help you determine the
accuracy of what each witness said.
job is to think about the testimony of each witness you have
heard and decide how much you believe of what each witness
had to say. In making up your mind and reaching a verdict, do
not make any decisions simply because there were more
witnesses on one side than on the other. Do not reach a
conclusion on a particular point just because there were more
witnesses testifying for one side on that point. You must
always bear in mind that the law never imposes on a defendant
in a criminal case the burden or duty of calling any
witnesses or producing any evidence.
testimony of a witness may be discredited by showing that the
witness testified falsely, or by evidence that at some other
time, the witness said or did something, or failed to say or
do something, which is inconsistent with the testimony the
witness gave at this trial. A witness’s earlier,
out-of-court statements were not admitted in evidence to
prove that the contents of those statements are true. You may
not consider these earlier statements to prove that the
content of an earlier statement is true. Rather, you may use
these earlier statements only to determine whether they are
consistent or inconsistent with the witness’s trial
testimony and therefore whether they affect that
witness’s credibility. If you believe that a witness
has been discredited in this manner, it is your exclusive
right to give that witness’s testimony whatever weight
you think it deserves.
will note that the indictment charges that the offenses were
committed on or about a specified date. The government does
not have to prove that a crime was committed on the exact
date, so long as the government proves beyond a reasonable
doubt that Ms. Swenson committed the crimes alleged in the
indictment reasonably near the dates stated in the
indictment. Similarly, it does not matter if the indictment
charges that certain transactions involved specific amounts
of money and the evidence shows that it was a different
amount. The law requires only a substantial similarity
between the amounts alleged in the indictment and the amounts
established by the evidence.
Swenson is found guilty, it is my duty to decide what the
punishment will be. You may not consider punishment in any
way. It may not enter your deliberation or discussion.
have taken notes, they should be used only as memory aids.
You should not give your notes precedence over your
independent recollection of the evidence. If you have not
taken notes, you should rely on your own independent
recollection of the proceedings and you should not be unduly
influenced by the notes of other jurors.