Social Media Petition 1-15-2010

8/14/2019 Social Media Petition 1-15-2010

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IN THE SUPREME COURT OF FLORIDA

In the matter of Standard Jury Committee Report 2010-01(Civil)

Instructions (Civil) and (Criminal), Committee Report 2010-01

(Criminal)

Jurors Use of Electronic Devices

_________________________________/

JOINT REPORT (NO. 2010-01 and NO. 2010-01) OF THE

COMMITTEES ON STANDARD

JURY INSTRUCTIONS (CIVIL) AND (CRIMINAL)

The Honorable Lisa T. Munyon

Florida Bar Number 513083

Committee Chair,

Supreme Court Committee on Standard

Jury Instructions (Criminal)

Ninth Judicial Circuit

425 N. Orange Ave., Room 1130

Orlando, Florida 32801

(407) 836-2470

(407) 835-5133 (fax)

Honorable James M. Barton, II


Committee Vice-Chair,


Jury Instructions (Civil)

Hillsborough County Courthouse Annex

800 East Twiggs, Room 512

Tampa, Florida 33602(813) 272-6994

(813) 276-2725 (fax)

(continued on following page)

Tracy Raffles Gunn


Committee Chair,

Supreme Court Committee on

Standard Jury Instructions (Civil)

Gunn Appellate Practice

777 S. Harbour Island Blvd. Suite 770

Tampa, Florida 33602

(813) 254-3183

(813) 254-3258 (fax)

Joseph H. Lang, Jr.


Subcommittee Chair,

Filing Subcommittee



Carlton Fields P.A.

4221 W. Boy Scout Blvd.Tampa, Florida 33607

(813) 229-4253

(813) 229-4133 (fax)

c=~=K~~K


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Joseph L. Amos, Jr.


Subcommittee Co-Chair,

Juror Conduct Subcommittee



Fisher, Rushmer, Werrenrath, Dickson,

Talley & Dunlap, P.A.

P.O. Box 712

Orlando, Florida 32802-0712

(407) 535-4868

(407) 535-4795 (fax)

Rebecca Mercier Vargas



Juror Conduct Civil Subcommittee



Kreusler-Walsh, Compiani &

Vargas, P.A.

501 South Flagler Drive, Suite 503

West Palm Beach, FL 33401

(561) 659-5455

(561) 820-8762 (fax)


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To the Chief Justice and Justices of

the Supreme Court of Florida:

The Committee on Standard Jury Instructions in Civil Cases and the

Committee on Standard Jury Instructions in Criminal Cases jointly request that this

Court approve for publication and use a new qualifications instruction to be given

to all prospective jurors in civil and criminal cases, as set forth in Appendix A.

The Committees also request the Court to approve for publication and use new or

revised Florida Standard Jury Instructions (Civil) and (Criminal) for Preliminary

Instructions and Closing Instructions, as set forth below, and as set forth in

Appendices B (Civil), and C (Criminal). This Report is filed pursuant to article V,

section 2(a), of the Florida Constitution.

I. INTRODUCTION

On August 26, 2009, Justice R. Fred Lewis wrote letters requesting that the

Florida Supreme Court Committees for Standard Jury Instructions in Civil and

Criminal Cases consider the problem of jurors engaging in electronic

communications, research or the use of technology by jurors during a pending

case.1

1These letters are included in Appendix H at pages H1-H2.

These letters explained that the Michigan Supreme Court had recently

approved a rule banning jurors from using electronic devices during trial and


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adopted a specific jury instruction on this issue. In the letters, Justice Lewis asked

the Civil and Criminal Committees to jointly propose a uniform approach along

with uniform jury instructions to be used in all cases, in a report filed by January

11, 2010.

Before receiving Justice Lewiss letter, the Civil Committee had already

begun considering this issue during its July 2009 meeting. The Civil Committee

discussed articles in the New York Times and Daily Business Review on the

growing problem of jurors performing Internet research during a case. Many

jurors have cell phones or laptops with Internet access, giving them the immediate

ability to perform outside research. These electronic devices also make it much

easier for jurors to communicate with the outside world about the case. In

addition, the electronic devices increase the risk of distracted jurors during trial.

The Civil Committee formed a subcommittee to consider amending the standard

instructions to respond to this growing concern.

The Criminal Committee first became aware of the issue as early as March

18, 2009. Circuit Court Judge Terry David Terrell wrote to staff for the committee

on that date and referenced the New York Times article written by John Schwartz.

Judge Terrell also furnished staff with a proposed amendment to standard jury


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instruction 2.1. This proposal was added to the agenda for the next scheduled

meeting.

A. Current Civil Instructions Addressing Issue

In the civil instructions, this issue is currently addressed in preliminary

instruction 1.1. Civil instruction 1.1 is given after voir dire is completed and jurors

are sworn. The paragraph in current civil instruction 1.1 titled Consider Only the

Evidence tells jurors not to do any homework or investigation, including Internet

research.

In addition, the civil committee has a pending proposal to amend the

standard closing instruction 7.2 to address this issue. The Civil Committee has

previously submitted a proposal for reorganization of the Standard Jury

Instructions in Civil Cases, which includes a renumbering of the instructions. The

book reorganization proposal was filed as this Committees report number 09-01

(pending case number SC09-284).

In a separate report number SC09-02 (pending case number SC09-296), the

Civil Committee asked this Court to make a substantial, plain English revision to

closing instruction 7.2. Closing instruction 7.2 will be renumbered instruction 700


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in the reorganized book. If adopted by this Court, the pending amendment to

instruction 7.2/700 will add a paragraph directing jurors not to do any research

about the case, including research on the Internet. The pending amendment also

instructs jurors not to communicate with others about the case during their

deliberations. For this reason, the Civil Committee considered whether the

pending amendment to closing instruction 700 needed additional revisions to fully

address these issues.

B. Current Criminal Instructions Addressing Issue

The current standard criminal instructions do not address the issue of jurors

using electronic devices or performing internet research. Standard jury instruction

2.1 only advises the jurors that they must not conduct their own investigation.

II. PROCEDURAL INFORMATION REGARDING THIS PROPOSAL

The Civil and Criminal Committees both formed subcommittees to consider

this issue.2

2 Joseph Amos chaired the Civil Subcommittee, composed of retired 10th

Circuit Court Judge Ralph Artigliere, Duval County Court Judge Tyrie Boyer,

Fifteenth Judicial Circuit Judge Lucy Brown, Dick Caldwell, Allan Campo, Dade

County Court Judge Wendell Graham, Rebecca Mercier Vargas, and Alan Wagner.

Bart Schneider, Assistant State Attorney, 7th

Judicial Circuit, chaired the Criminal

Subcommittee, which consisted of Mr. Blaise Trettis, the Executive Assistant

Public Defender, 18th

Judicial Circuit, and Mr. Frank Migliore, Assistant State

The Civil and Criminal Subcommittees agreed to work jointly on this


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project with the goal of drafting core language that can be used in both the civil

and criminal instructions. Both subcommittees agreed that a uniform approach is

needed for several reasons. There is no substantive reason to use different

language to address this issue in the civil or criminal context. The instructions

must be consistent because many potential jurors are called to both civil and

criminal panels. In addition, using similar language will assist judges who try both

civil and criminal cases.

The Civil and Criminal Subcommittees met jointly several times by phone

and e-mail. The subcommittees considered several articles on the subject,

including: (1) an article written by retired Tenth Circuit Judge Ralph Artigliere,

Thirteenth Circuit Judge James Barton and Bill Hahn, Reining in Juror

Misconduct: Practical Suggestions for Judges and Lawyers, scheduled for

publication in the December issue of the Florida Bar Journal; (2) James A.

Edwards, Jurors Who Tweet, Blog & SurfDeciding and Discussing Your Case, a

speech presented at a FLABOTA meeting; (3) several articles regarding mistrials

around the country caused by jurors using the Internet or Twitter to communicate

about the case or perform research about the case, published in the New York

Times, the ABA Section on Litigation website, and the South Florida Business

Attorney, 6th

Judicial Circuit.


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Journal; (4) articles in the Daily Business Review about a mistrial in Miami-Dade

County caused by a partys corporate officers exchanging text messages about

testimony while one was on the witness stand; and (5) an article in the Naples

Daily News about a new trial ordered in a medical malpractice case after a juror

read newspaper articles about the case. These articles are included in attached

Appendix D.

Almost all of these articles expressed concern that existing standard

instructions do not do enough to tell jurors that they cannot perform independent

Internet research or use electronic devices to communicate about the case. Many

individuals called for jury service, especially younger jurors, have grown up with

the Internet. These potential jurors may consider constant communication through

cell phones, Blackberries, and other devices to be a normal part of everyday life.

For example, jurors in other states have caused problems by twittering about the

trial and posting messages about the trial on social networking websites like

Facebook or MySpace. Some jurors have even used these methods to describe the

case to others and ask for advice on how to decide the case.

The Joint Subcommittee also considered the instructions used in several


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other states to address these issues: Michigan,3

3 The Committees considered an order of the Michigan Supreme Court

adopting a procedural rule that jurors should be instructed regarding the use of

electronic devices (Appendix E3-E4). Since then, Michigan has adopted a specific

jury instruction on this issue, which is included in the Appendix for the Courts

consideration (Appendix E5-E7).

California, Connecticut (criminal),

the Northern District of Iowa and a proposed instruction from New York. These

instructions are included in attached Appendix E. In addition, the Joint

Subcommittee considered an instruction drafted by Ninth Circuit Judge John Kest,

which was printed in James A. Edwards FLABOTA speech, included in attached

Appendix D.

The Joint Subcommittee recommended that jurors should be instructed on

this issue at multiple times during a jurors service. When jurors first arrive at the

courthouse and gather in a juror assembly room, they should be told that they

cannot perform outside research using the Internet or use electronic devices to

communicate about the case. In many circuits, potential jurors who are still

waiting to be called to a courtroom have Internet access and cell phones. After

jurors enter a courtroom to begin voir dire, these instructions should be repeated at

three different stages: (1) before voir dire begins; (2) after voir ends and the jury is

sworn; and (3) during the closing instruction. The instructions at each of these

three stages should use slightly different language.


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The Joint Subcommittee then appointed a drafting subcommittee. The

drafting group started with the existing civil preliminary and closing instructions

and revised them to tell jurors: (1) not to research on the Internet about the case;

and (2) not to use cell phones, electronic devices or the Internet to communicate

about the case.

After the drafting subcommittee circulated proposed preliminary and closing

instructions, some of the representatives from the criminal subcommittee expressed

concern that the language was too lengthy. The Joint Subcommittee met by phone

and made additional revisions to the draft instructions. Most of the other states that

have considered this issue give jurors a detailed list of the types of prohibited

activities. The majority of the joint subcommittee supported the proposed

instructions submitted by the drafting subcommittee.

After this meeting, the members of the Criminal Subcommittee circulated

long and short versions of the draft instructions to the full Criminal

Committee. The full Criminal Committee overwhelmingly preferred the longer

version of the instruction supported by the majority of the Joint Subcommittee.


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Following this vote of the Criminal Committee, the Joint Subcommittee met

again by phone and e-mail. The Joint Subcommittee made substantial revisions to

the draft instructions. The Joint Subcommittee agreed to core language to be given

at each of the three stages, which would be inserted in existing civil and criminal

instructions.

At a meeting on October 15-16, 2009, the Civil Committee extensively

discussed the draft instructions proposed by the joint subcommittee. One member

of the Criminal Committee, Bart Schneider, attended the Civil Committee meeting

and participated in this discussion. Following a lively and comprehensive

discussion, the Civil Committee substantially revised the proposed amendments.

After the meeting, the Civil Committee circulated a final version of the proposed

instructions and made minor modifications. The Civil Committee recommends

amending: (1) the preliminary instruction given before jurors are sworn (currently

instruction 1.0, which will be renumbered instruction 201.2 in the reorganized jury

instruction book); (2) the preliminary instruction given after jurors are sworn

(currently instruction 1.1, which will be renumbered instruction 202.2 in the

reorganized jury instruction book); and (3) the closing instruction (currently

instruction 7.2, which will be renumbered instruction 700 in the reorganized book).

The Civil Committee also proposes that standard language be given to prospective


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jurors during the qualifications stage, before a juror is sent to a specific courtroom.

Excerpts from the Civil Committees meeting minutes are attached at Appendix F.

The Criminal Committee then met on December 11, 2009. Two members of

the Civil Committee attended the meeting of the Criminal Committee: Joseph

Amos and Dick Caldwell. The excerpted minutes of the meeting that address

electronic communications by jurors are attached at Appendix G.

The Criminal Committee voted unanimously that prospective jurors be given

an instruction during the qualifications stage, before jurors are sent to a courtroom.

The Criminal Committee has no specific recommendation as to how this

instruction should be delivered to the prospective jurors before voir dire. The

Criminal Committee recognizes that the process for selecting and qualifying jurors

varies from circuit to circuit and is usually a clerk of the court function. As a result,

this Court might opt to have the chief judge of each judicial circuit devise a method

for instructing the prospective jurors with regard to the proposed qualifications

instruction. In the alternative, the Court could recommend that OSCA work with

the individual chief judges, and the clerks of the court, to ensure delivery of the

instruction to the jury panel.


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In addition to approving a qualifications instruction to be given to all

prospective jurors, the Criminal Committee, by a unanimous vote of 17 to 0,

approved the following new or amended criminal jury instructions: (1) 1.1

Introduction: This new instruction is identical to amended civil instruction 1.0; (2)

2.1 Preliminary Instructions: This amended instruction is identical to amended

civil instruction 1.1. The Criminal Committee adopted some of the current

language in civil instruction 1.1 to make the civil and criminal instructions

conform; and (3) 3.13 Submitting Case to Jury: This amended criminal closing

instruction is not identical to amended civil closing instruction 700 for reasons set

forth in section III of the report. These proposed new and amended criminal jury

instructions are attached at Appendix C.

III. THE PROPOSED REVISIONS

The Civil and Criminal Committees propose that this Court use the same

core language in both civil and criminal cases to instruct jurors on their use of

electronic devices. In this age of electronic communication, many jurors are

accustomed to having the ability to instantly communicate with others or perform

immediate Internet research.

The Committees recommend that the qualifications instruction be given to


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all jurors when they are still in a jury assembly room during the qualifications

stage and before they have entered a courtroom. While the information heard by

jurors before they enter a courtroom is not technically an instruction, both

committees feel it is important for this Court to consider giving standard language

on this issue as early as possible.

The Committees further recommend that jurors be instructed on the use of

electronic devices at multiple points in the proceedings: (1) preliminary

instructions before voir dire begins; (2) preliminary instructions after voir dire ends

and the jury is sworn; and (3) closing instructions. The committees propose using

slightly different language at each stage of the proceeding.

The Committees propose inserting identical language into the preliminary

instructions. The Committees propose slightly different language for the closing

instruction. The Civil Committee asks this Court to instruct the jury: Do not

contact anyone to assist you, such as a family accountant, doctor, or lawyer.

The Criminal Committee, in closing instruction 3.13,felt that references to

accountants, doctors, or lawyers are not germane to criminal cases. The Criminal

Committee unanimously voted to revise this sentence to read: Do not contact

anyone to assist you during deliberations.


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The Committees recommend the Court adopt the following instructions:

A. Qualifications Instruction

QUALIFICATIONS INSTRUCTION

Many of you have cell phones, computers, and other electronic devices.

Even though you have not yet been selected as a juror, there are some strict

rules that you must follow about using your cell phones, electronic devices and

computers. You must not use any device to search the Internet or to find out

anything related to any cases in the courthouse.

Between now and when you have been discharged from jury duty by thejudge, you must not provide or receive any information about your jury

service to anyone, including friends, co-workers, and family members. You

may tell those who need to know where you are that you have been called for

jury duty. If you are picked for a jury, you may tell people that you have been

picked for a jury and how long the case may take. However, you must not

give anyone any information about the case itself or the people involved in the

case. You must also warn people not to try to say anything to you or write to

you about your jury service or the case. This includes face-to-face, phone or

computer communications.

In this age of electronic communication, I want to stress that you must

not use electronic devices or computers to talk about this case, including

tweeting, texting, blogging, e-mailing, posting information on a website or

chat room, or any other means at all. Do not send or accept any messages,

including e-mail and text messages, about your jury service. You must not

disclose your thoughts about your jury service or ask for advice on how to

decide any case.

After you are called to the courtroom, the judge will give you specificinstructions about these matters. A judge will tell you when you are released

from this instruction. All of us are depending on you to follow these rules, so

that there will be a fair and lawful resolution of every case.

NOTE ON USE


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This instruction should be given in addition to and at the conclusion of the

instructions normally given to the prospective jurors. The portion of this

instruction dealing with communication with others and outside research may need

to be modified to include other specified means of communication or research as

technology develops.

B. Civil Preliminary Instruction Given Before Voir Dire Begins (currently

instruction 1.0, which will be renumbered instruction 201.2 in the reorganized

book)

PRELIMINARY INSTRUCTION[Prior to Voir Dire]

Welcome. [I] [The clerk] will now administer your oath.

Now that you have been sworn, Id like to give you an idea about what weare here to do.

What is this proceeding?

This is a civil trial. A civil trial is different from a criminal case, where adefendant is charged by the state prosecutor with committing a crime. Thesubject of a civil trial is a disagreement between people or companies [orothers, as appropriate], where the claims of one or more of these parties hasbeen brought to court to be resolved. It is called a trial of a lawsuit.

(Insert brief description of claim(s) brought to trial in this case)

Who are the people here and what do they do?

Judge/Court: I am the Judge. You may hear people occasionally refer tome as The Court. That is the formal name for my role. My job is tomaintain order and decide how to apply the rules of the law to the trial. I willalso explain various rules to you that you will need to know in order to doyour job as the jury. It is my job to remain neutral on the issues of thislawsuit.

Attorneys: The attorneys to whom I will introduce you have the job ofrepresenting their clients. That is, they speak for their client here at the trial.They have taken oaths as attorneys to do their best and to follow the rules fortheir profession.

Plaintiffs Counsel: The attorney on this side of the courtroom, (introduceby name), represents (client name) and is the person who filed the lawsuit hereat the courthouse. [His] [Her] job is to present [his] [her] clients side of things


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to you. [He] [She] and [his] [her] client will be referred to most of the time asthe plaintiff.

Defendants Counsel: The attorney on this side of the courtroom,

(introduce by name), represents (client name), the one who has been sued. [His]

[Her] job is to present [his] [her] clients side of things to you. [He] [She] and[his] [her] client will usually be referred to here as the defendant.

Court Clerk: This person sitting in front of me, (name), is the court clerk.

[He] [She] is here to assist me with some of the mechanics of the trial process,

including the numbering and collection of the exhibits that are introduced in

the course of the trial.

Court Reporter: The person sitting at the stenographic machine, (name), is

the court reporter. [His] [Her] job is to keep an accurate legal record of

everything we say and do during this trial.

Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to

maintain order and security in the courtroom. The bailiff is also my

representative to the jury. Anything you need or any problems that come up

for you during the course of the trial should be brought to [him] [her].

However, the bailiff cannot answer any of your questions about the case. Only

I can do that.

Jury: Last, but not least, is the jury, which we will begin to select in a fewmoments from among all of you. The jurys job will be to decide what the

facts are and what the facts mean. Jurors should be as neutral as possible at

this point and have no fixed opinion about the lawsuit. At the end of the tr ial

the jur y will give me a wr itten verdict. A verdict is simply the jur ys answer to

my questions about the case.

In order to have a fair and lawful trial, there are rules that all jurors

must follow. A basic rule is that jurors must decide the case only on the

evidence presented in the courtroom. You must not communicate with

anyone, including friends and family members, about this case, the people and

places involved, or your jury service. You must not disclose your thoughts

about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices

or computers to communicate about this case, including tweeting, texting,


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blogging, e-mailing, posting information on a website or chat room, or any

other means at all. Do not send or accept any messages to or from anyone

about this case or your jury service.

You must not do any research or look up words, names, [maps], or

anything else that may have anything to do with this case. This includes

reading newspapers, watching television or using a computer, cell phone, the

Internet, any electronic device, or any other means at all, to get information

related to this case or the people and places involved in this case. This applies

whether you are in the courthouse, at home, or anywhere else.

All of us are depending on you to follow these rules, so that there will be a

fair and lawful resolution to this case. If you become aware of any violation of

these instructions or any other instruction I give in this case, you must tell me

by giving a note to the bailiff.

Voir Dire:

The last thing I want to do, before we begin to select the jury, is to

explain to you how the selection process works.

Questions/Challenges. This is the part of the case where the parties and

their lawyers have the opportunity to get to know a little bit about you, in

order to help them come to their own conclusions about your ability to be fair

and impartial, so they can decide who they think should be the jurors in this

case.

How we go about that is as follows: First, Ill ask some general questionsof you. Then, each of the lawyers will have more specific questions that theywill ask of you. After they have asked all of their questions, I will meet withthem and they will tell me their choices for jurors. Each side can ask that Iexclude a person from serving on a jury if they can give me a reason to believethat he or she might be unable to be fair and impartial. That is what is calleda challenge for cause. The lawyers also have a certain number of what arecalled peremptory challenges, by which they may exclude a person from the

jury without giving a reason. By this process of elimination, the remainingpersons are selected as the jury. It may take more than one conference amongthe parties, their attorneys, and me before the final selections are made.

Purpose of Questioning. The questions that you will be asked during thisprocess are not intended to embarrass you or unnecessarily pry into yourpersonal affairs, but it is important that the parties and their attorneys knowenough about you to make this important decision. If a question is asked thatyou would prefer not to answer in front of the whole courtroom, just let me


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know and you can come up here and give your answer just in front of theattorneys and me. If you have a question of either the attorneys or me, donthesitate to let me know.

Response to Questioning. There are no right or wrong answers to thequestions that will be asked of you. The only thing that I ask is that you

answer the questions as frankly and as honestly and as completely as you can.You [will take] [have taken] an oath to answer all questions truthfully andcompletely and you must do so. Remaining silent when you have informationyou should disclose is a violation of that oath as well. If a juror violates thisoath, it not only may result in having to try the case all over again but also canresult in civil and criminal penalties against a juror personally. So, again, it isvery important that you be as honest and complete with your answers as youpossibly can. If you dont understand the question, please raise your hand andask for an explanation or clarification.

In sum, this is a process to assist the parties and their attorneys to select afair and impartial jury. All of the questions they ask you are for this purpose.

If, for any reason, you do not think you can be a fair and impartial juror, youmust tell us.

NOTE ON USE

1. The publication of this recommended instruction is not intended to

intrude upon the trial judges own style and manner of delivery. It may be useful in

cataloging the subjects to be covered in an introductory instruction.

2. The portion of this instruction dealing with communication with

others and outside research may need to be modified to include other specified

means of communication or research as technology develops.

C. Civil Preliminary Instruction Given After Voir Dire Ends and the Jury

is Sworn (currently instruction 1.1, which will be renumbered instruction

202.2 in the reorganized book)

PRELIMINARY INSTRUCTION[After Jury Selection]

(Administer oath)

What will be happening?

You have now taken an oath to serve as jurors in this trial. Before webegin, I want to let you know what you can expect.

Opening Statements: In a few moments, the attorneys will each have a


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chance to make what are called opening statements. In an opening statement,an attorney is allowed to give you [his] [her] views about what the evidencewill be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys opening statements the plaintiffswill bring their witnesses and evidence to you.

Evidence. Evidence is the information that the law allows you to see orhear in deciding this case. Evidence includes the testimony of the witnesses,documents, and anything else that I instruct you to consider.

Witnesses. A witness is a person who takes an oath to tell the truth andthen answers attorneys questions for the jury. The answering of attorneysquestions by witnesses is called giving testimony. Testimony meansstatements that are made when someone has sworn an oath to tell the truth.

The plaintiffs lawyer will normally ask a witness the questions first so asto provide you the testimony that the plaintiffs lawyer believes is helpful to

[his] [her] case. That is called direct examination. Then the defense lawyermay ask the same witness additional questions about whatever the witness hastestified to. That is called cross-examination. Certain documents or otherevidence may also be shown to you during direct or cross-examination. Afterthe plaintiffs witnesses have testified, the defendant will have the opportunityto put witnesses on the stand and go through the same process. Then theplaintiffs lawyer gets to do cross-examination. The process is designed to befair to both sides.

It is important that you remember that testimony comes from witnesses.The attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules fortrial procedure when a question is asked of a witness. When that happens, oneof the lawyers may make what is called an objection. The rules for a trialcan be complicated, and there are many reasons for attorneys to object. Youshould simply wait for me to decide how to proceed. If I say that an objectionis sustained, that means the witness may not answer the question. If I saythat the objection is overruled, that means the witness may answer thequestion.

When there is an objection and I make a decision, you must not assumefrom that decision that I have any particular opinion other than that the rulesfor conducting a trial are being correctly followed. If I say a question may not

be asked or answered, you must not try to guess what the answer would havebeen. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the attorneysabout legal elements of the case that are not appropriate for the jury to hear.The attorneys and I will try to have as few of these conferences as possiblewhile you are giving us your valuable time in the courtroom. But, if we dohave to have such a conference during testimony, we will try to hold theconference at the side of my desk so that we do not have to take a break and


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ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called recesses. Duringa recess you still have your duties as a juror and must follow the rules, evenwhile having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has beenpresented to you, I will instruct you in the law that you must follow. It isimportant that you remember these instructions to assist you in evaluating thefinal attorney presentations, which come next, and, later, during yourdeliberations, to help you correctly sort through the evidence to reach yourdecision.

Closing Arguments: The attorneys will then have the opportunity to maketheir final presentations to you, which are called closing arguments.

Final Instructions: After you have heard the closing arguments, I will

instruct you further in the law as well as explain to you the procedures you

must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to the

jury room and discuss and decide the questions I have put on your verdict

form. [You will have a copy of the jury instructions to use during your

discussions.] The discussions you have and the decisions you make are usually

called jury deliberations. Your deliberations are absolutely private and

neither I nor anyone else will be with you in the jury room.

Verdict: When you have finished answering the questions, you will givethe verdict form to the bailiff, and we will all return to the courtroom where

your verdict will be read. When that is completed, you will be released from

your assignment as a juror.

What are the rules?

Before we begin the trial, I want to give you just a brief explanation of

the applicable rules.

Keeping an Open Mind. You must pay close attention to the testimony and

other evidence as it comes into the trial. However, you must avoid forming

any final opinion or telling anyone else your views on the case until you begin

your deliberations. This rule requires you to keep an open mind until you

have heard all of the evidence and is designed to prevent you from influencing

how your fellow jurors think until they have heard all of the evidence and had


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an opportunity to form their own opinions. The time and place for coming to

your final opinions and speaking about them with your fellow jurors is during

deliberations in the jury room, after all of the evidence has been presented,

closing arguments have been made, and I have instructed you on the law. It is

important that you hear all of the facts and that you hear the law and how to

apply it before you start deciding anything.

Consider Only the Evidence. It is the things you hear and see in this

courtroom that matter in this trial. The law tells us that a juror can consider

only the testimony and other evidence that all the other jurors have also heard

and seen in the presence of the judge and the lawyers. Doing anything else is

wrong and is against the law. That means that you must cannot do any

homework or investigation of your own. You must cannot obtain on your own

any information about the case or about anyone involved in the case, from any

source whatsoever.,including the Inter net This includes reading newspapers,watching television or using a computer, cell phone, the Internet, any

electronic device, or any other means at all, to get information related to this

case or the people and places involved in this case. This applies whether you

are in the courthouse, at home, or anywhere else. youcannot You must not

visit places mentioned in the trial or use the Internet to look at maps or

pictures to see any place discussed during trial.

The law also tells us that jJurors must cannot have discussions of any sort

with friends or family members about the case or its subject the people and

places involved in this case. So, do not let even the closest family members

make comments to you or ask questions about the trial. In this age of

electronic communication, I want to stress again that just as you must not talk

about this case face-to-face, you must not talk about this case by using an

electronic device. You must not use phones, computers or other electronic

devices to communicate. Do not send or accept any messages related to this

case or your jury service. Do not discuss this case or ask for advice by any

means at all, including posting information on an Internet website, chat room

or blog. Similarly, it is important that you avoid reading any newspaper

accounts,or watching or listening to television or radio comments that haveanything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss

anything about the trial or the case with each other or with anyone else. If

attorneys approach you, dont speak with them. The law says they are to

avoid contact with you. If an attorney will not look at you or speak to you, do


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not be offended or form a conclusion about that behavior. The attorney is not

supposed to interact with jurors outside of the courtroom and is only

following the rules. The attorney is not being impolite. If an attorney or

anyone else does try to speak with you or says something about the case in

your presence, please inform the bailiff immediately.

Only the Jury Decides. Only you get to deliberate and answer the verdict

questions at the end of the trial. I will not intrude into your deliberations at

all. I am required to be neutral. You should not assume that I prefer one

decision over another. You should not try to guess what my opinion is about

any part of the case. It would be wrong for you to conclude that anything I say

or do means that I am for one side or another in the trial. Discussing and

deciding the facts is your job alone.

NOTE ON USE

1. The publication of this recommended instruction is not intended to

intrude upon the trial judge's own style and manner of delivery. It may be useful in

cataloging the subjects to be covered in an introductory instruction.

2. The portion of this instruction dealing with communication with

others and outside research may need to be modified to include other specified

means of communication or research as technology develops.

D. Civil Closing Instruction (currently instruction7.2, which will berenumbered instruction 700 in the reorganized book)

4

4 In January 2009, the Civil Committee proposed a substantial, plain English

rewrite of instruction 7.2, which remains pending in this Court in case number

SC09-296. The Civil Committee started with this plain English rewrite and made

additional revisions to address jurors use of electronic devices. To assist the

Court, attached Appendix B includes two versions of this proposed amendment.The first version uses underlining and strike-through text to show how this

electronic devices amendment changes current instruction 7.2. Many of these

revisions have already been suggested in the plain English rewrite pending in case

number SC09-296. The second version of this amendment in Appendix B shows

how the electronic devices amendment differs from the proposed plain English

amendment to instruction 7.2 that is already pending in case number SC09-296.


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7.2 700 USE OF NOTES DURING DELIBERATIONS;ELECTION OF FOREMAN; VERDICT FORMS

CLOSING INSTRUCTIONS

Members of the jury, you have now heard all the evidence, my

instructions on the law that you must apply in reaching your verdict and theclosing arguments of the attorneys. You will shortly retire to the jury room

to decide this case. [Before you do so, I have a few last instructions for you.]

During deliberations, jurors must communicate about the case onlywith one another and only when all jurors are present in the jury room. Youwill have in the jury room all of the evidence that was received during thetrial. In reaching your decision, do not do any research on your own or as agroup. Do not use dictionaries, the Internet, or any other reference materials.Do not investigate the case or conduct any experiments. Do not visit or viewthe scene of any event involved in this case or look at maps or pictures on theInternet. If you happen to pass by the scene, do not stop or investigate. All

jurors must see or hear the same evidence at the same time. Do not read,listen to, or watch any news accounts of this trial.

You are not to communicate with any person outside the jury about this

case. Until you have reached a verdict, you must not talk about this case in person

or through the telephone, writing, or electronic communication, such as a blog,

twitter, e-mail, text message, or any other means. Do not contact anyone to assist

you, such as a family accountant, doctor, or lawyer. These communications rule

apply until I discharge you at the end of the case. If you become aware of any

violation of these instructions or any other instruction I have given in this case, you

must tell me by giving a note to the bailiff.

Any notes you have taken during the trial may be taken to the juryroom for use during your discussions. Your notes are simply an aid to yourown memory, and neither your notes nor those of any other juror are bindingor conclusive. For this reason, you should not be unduly influenced byanyones notes, including your own, and you should not give greater weight toa particular piece of evidence or testimony merely because it is mentioned in ajurors notes. Your notes are not a substitute for your own memory or that ofother jurors. Instead, your verdict must result from the collective memory

and judgment of all jurors based on the evidence and testimony presentedduring the trial. You should consider the recollections of other jurors, butyou need not abandon your own recollection of the evidence and testimonymerely because your recollection differs from the written notes of anotherjuror.

At the conclusion of the trial, the bailiff will collect all of your notes andimmediately destroy them. No one will ever read your notes.


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In reaching your verdict, do not let bias, sympathy, prejudice, publicopinion, or any other sentiment for or against any party to influence yourdecision. Your verdict must be based on the evidence that has been receivedand the law on which I have instructed you.

Reaching a verdict is exclusively your job. I cannot participate in thatdecision in any way and you should not guess what I think your verdict shouldbe from something I may have said or done. You should not think that Iprefer one verdict over another. Therefore, in reaching your verdict, youshould not consider anything that I have said or done, except for my specificinstructions to you.

Pay careful attention to all the instructions that I gave you for that is the

law that you must follow. You will have a copy of my instructions with you

when you go to the jury room to deliberate. All the instructions are

important and you must consider all of them together. There are no other

laws that apply to this case and even if you do not agree with these laws, youmust use them in reaching your decision in this case.

After you have decided what the facts are, you may find that some

instructions do not apply. In that case, follow the instructions that do apply

and use them together with the facts to reach your verdict.

When you go retire to the jury room, the first thing you should do isselect one of your number to act as the foreperson to preside over yourdeliberations and sign your verdict[s]. Your verdict[s] must be unanimous,that is, your verdict[s] must be agreed to by each of you. choose a presidingjuror to act as a foreperson during your deliberations. The foreperson shouldsee to it that your discussions are orderly and that everyone has a fair chanceto be heard.

It is your duty to talk with one another in the jury room and to consider

the views of all the jurors. Each of you must decide the case for yourself, but

only after you have considered the evidence with the other members of the

jury. Feel free to change your mind if you are convinced that your position

should be different. You should all try to agree. But do not give up your

honest beliefs just because the others think differently. Keep an open mind so

that you and your fellow jurors can easily share ideas about the case.

[I will give you a verdict form with questions you must answer. I havealready instructed you on the law that you are to use in answering thesequestions. You must follow my instructions and the form carefully. You mustconsider each question separately. Please answer the questions in the orderthey appear. After you answer a question, the form tells you what to do next.I will now read the form to you: (read form of verdict)]


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[You will be given (state the number) forms of verdict, which I shall nowread to you (read form of verdict)]:

[If you find for (Claimant(s)), the plaintiff[s], your verdict will be in thefollowing form: (read form of verdict).]

[If you find for the d(Defendant(s)), your verdict will be in the followingform: (read form of verdict).]

Your verdict[s] must be unanimous, that is, your verdict must be agreedto by each of you. When you have [agreed on your verdict[s]] [finished fillingout the form[s]], your foreperson must write the date and sign it at the bottomand return the verdict[s] to the bailiff.

If any of you need to communicate with me for any reason, write me a

note and give it to the bailiff. In your note, do not disclose any vote or split or

the reason for the communication.

You may now retire to decide your verdict[s].

When you have agreed on your verdict[s], the foreperson, acting for the

jury, should date and sign the appropriate form[s] of verdict. You may now

retire to consider your verdict[s].

If any of you need to communicate with me for any reason, write me anote and give it to the bailiff. In your note, do not disclose any vote or split orthe reason for the communication.

NOTES ON USE

1. When final instructions are read to the jury before the attorneys closingarguments, this instruction should not be given at that time. It should be givenfollowing closing arguments, just before the jury retires to deliberate. If, however,the entire instruction is given after final arguments, omit the bracketed sentence inthe first paragraph.

2. The portion of this instruction dealing with communication with others

and outside research may need to be modified to include other specified means of

communication or research as technology develops.

2.3 Rule 2.430(l), Florida Rules of Judicial Administration, provides thatat the conclusion of the trial, the court shall collect and immediately destroy all

juror notes.

Because there seems to be no uniform practice among the circuits whereby


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exhibits are delivered to the jury when it retires to consider the verdict, thecommittee makes no recommendation on that subject. The committee doesrecommend, however, that the court at least inform the jury at the time that theexhibits are available for inspection by the jury.

2. When final instructions are read to the jury before the attorneys closing

arguments, this instruction should not be given at that time. It should be givenfollowing closing arguments, just before the jury retires to deliberate.

COMMENT

4. Quotient verdict. The committee recommends that no instructiongenerally be given to admonish the jury against returning a quotient verdict.

5. When it is impracticable to take all of the evidence into the jury room,

this instruction should be modified accordingly.

E. Criminal Introduction Instruction (1.1)

1.1 INTRODUCTION

To be given when jurors are in courtroom, prior to voir dire.

In order to have a fair and lawful trial, there are rules that all jurors

must follow. A basic rule is that jurors must decide the case only on the

evidence presented in the courtroom. You must not communicate with

anyone, including friends and family members, about this case, the people and

places involved, or your jury service. You must not disclose your thoughtsabout this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices

or computers to communicate about this case, including tweeting, texting,

blogging, e-mailing, posting information on a website or chat room, or any

other means at all. Do not send or accept any messages to or from anyone

about this case or your jury service.

You must not do any research or look up words, names, [maps], oranything else that may have anything to do with this case. This includes

reading newspapers, watching television or using a computer, cell phone, the

Internet, any electronic device, or any other means at all, to get information

related to this case or the people and places involved in this case. This applies

whether you are in the courthouse, at home, or anywhere else.


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All of us are depending on you to follow these rules, so that there will be a

fair and lawful resolution to this case. If you become aware of any violation of

these instructions or any other instruction I give in this case, you must tell me

by giving a note to the bailiff.

Comment

The portion of this instruction dealing with communication with others and

outside research may need to be modified to include other specified means of


This instruction was adopted in 2010.

F. Criminal Preliminary Instructions (2.1):

2.1 PRELIMINARY INSTRUCTIONS

Ladies and gentlemen of the jury:

You have been selected and sworn as the jury to try the case of State ofFlorida v. (defendant).

This is a criminal case. (Defendant) is charged with (crime charged). The

definition of the elements of(crime charged) will be explained to you later.

It is your solemn responsibility to determine if the State has proved itsaccusation beyond a reasonable doubt against (defendant). Your verdict must

be based solely on the evidence, or lack of evidence, and the law.

The [information] [indictment] is not evidence and is not to be

considered by you as any proof of guilt.

It is the judge's responsibility to decide which laws apply to this caseand to explain those laws to you. It is your responsibility to decide what the

facts of this case may be, and to apply the law to those facts. Thus, the

province of the jury and the province of the court are well defined, and they

do not overlap. This is one of the fundamental principles of our system of

justice.


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Before proceeding further, it will be helpful if you understand how a

trial is conducted.

At the beginning of the trial, the attorneys will have an opportunity, if

they wish, to make an opening statement. The opening statement gives the

attorneys a chance to tell you what evidence they believe will be presented

during the trial. What the lawyers say is not evidence, and you are not to

consider it as such.

Following the opening statements, witnesses will be called to testify

under oath. They will be examined and cross-examined by the attorneys.

Documents and other exhibits also may be produced as evidence.

After the evidence has been presented, the attorneys will have the

opportunity to make their final argument.

Following the arguments by the attorneys, the court will instruct you on

the law applicable to the case.

After the instructions are given [the alternate juror will be released and]

you will then retire to consider your verdict.

You should not form any definite or fixed opinion on the merits of the

case until you have heard all the evidence, the argument of the lawyers and

the instructions on the law by the judge. Until that time, you should not

discuss the case among yourselves.

During the course of the trial, the court may take recesses, during which

you will be permitted to separate and go about your personal affairs. During

these recesses you will not discuss the case with anyone nor permit anyone to

say anything to you or in your presence about the case. If anyone attempts to

say anything to you or in your presence about this case, tell [him] [her] that

you are on the jury trying the case and ask [him] [her] to stop. If [he] [she]

persists, leave [him] [her] at once and immediately report the matter to thebailiff, who will advise me.

The case must be tried by you only on the evidence presented during the

trial in your presence and in the presence of the defendant, the attorneys and

the judge. Jurors must not conduct any investigation of their own. This

includes reading newspapers, watching television or using a computer, cell


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The portion of this instruction dealing with communication with others and

outside research may need to be modified to include other specified means of


This instruction was adopted in 1981 and amended in 2010.

G. Criminal Submitting Case to Jury (3.13):

3.13 SUBMITTING CASE TO JURY

In just a few moments you will be taken to the jury room by the bailiff.

The first thing you should do is elect a foreperson who will preside over your

deliberations, like a chairperson of a meeting. It is the foreperson's job to sign

and date the verdict form when all of you have agreed on a verdict in this case

and to bring the verdict back to the courtroom when you return.

Your verdict finding the defendant either guilty or not guilty must be

unanimous. The verdict must be the verdict of each juror, as well as of the

jury as a whole.

During deliberations, jurors must communicate about the case only

with one another and only when all jurors are present in the jury room. You

are not to communicate with any person outside the jury about this case. Until

you have reached a verdict, you must not talk about this case in person or

through the telephone, writing, or electronic communication, such as a blog,

twitter, e-mail, text message, or any other means. Do not contact anyone to

assist you during deliberations. These communications rules apply until I

discharge you at the end of the case. If you become aware of any violation of

these instructions or any other instruction I have given in this case, you must

tell me by giving a note to the bailiff.

In closing, let me remind you that it is important that you follow the law

spelled out in these instructions in deciding your verdict. There are no other

laws that apply to this case. Even if you do not like the laws that must beapplied, you must use them. For two centuries we have lived by the

constitution and the law. No juror has the right to violate rules we all share.

Comment


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This instruction was adopted in 1981 and was amended in 2000, and 2003,

and 2010.

IV. DESCRIPTION OF APPENDICES

The following appendices are attached to this report:

Appendix A: Proposed instruction for jury qualifications period

Appendix B : Proposed revisions to civil instructions

Appendix C: Proposed revisions to criminal instructions

Appendix D: Articles

Appendix E: Instructions used or proposed in other states or courts

Appendix F: Relevant excerpts from Civil Committees minutes

Appendix G: Relevant excerpts from Criminal Committees minutes

Appendix H: Civil and Criminal Committee materials

V. DISSENTING VIEWS FROM THE COMMITTEES

There are no dissenting views from the Civil or Criminal Committees. Both

committees believe that these instructions will greatly improve the process of jury

instruction and unanimously recommend their adoption.

A member of the Civil Committee, Fourth District Judge Gary Farmer,

suggested a substantial revision of the final version of the proposed instructions.


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Despite this, both committees believe that it is important to tell jurors from

the outset what rules will govern their use of electronic devices during their jury

service. The Court may even want to stress the importance of this instruction by

giving a written copy to potential jurors. Most jurors have access to the Internet

when they first arrive at the courthouse and are waiting to be called to a courtroom.

Many courthouses provide waiting jurors with wireless Internet access and free-

standing computers with Internet access. Also, many waiting jurors have their own

phones or laptops with Internet access.

As a result, the committees recommend that during the qualifications period,

jurors be told standard language to address these issues, found in Appendix A.

B. Taking electronic devices from jurors.

Another issue for further study is whether circuit court judges should collect

jurors cell phones and electronic devices. Many federal courts customarily collect

jurors cell phones, Blackberries, laptops or other electronic devices. The practice

throughout Florida state circuit courts varies. Many Florida circuit court judges

collect jurors cell phones and electronic devices during jury deliberations. In the

approach used in Michigan, jurors are instructed that they may only use cell

phones and electronic devices during breaks or recesses.


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Members of the Civil Committee were concerned that prohibiting jurors

from using cell phones during trial or physically collecting the phones might raise

problems of judicial administration. Many jurors might be unwilling to serve if

unable to use their cell phones during the trial. For example, parents might be

unwilling to serve as jurors if unable to use cell phones to communicate with their

children during jury service. Eleventh Circuit Judge Jennifer Bailey tries to

address this problem by warning jurors in advance that she will be collecting cell

phones during deliberations. In addition, Judge Bailey gives jurors a court phone

number to provide family members with a way to reach a deliberating juror in case

of an emergency.

VIII. CONCLUSION

WHEREFORE, for the above reasons, the committees respectfully request

that the Court approve these instructions for publication and their inclusion in the

reorganized book as new Standard Jury Instructions for Civil Cases, and as

revisions to the Standard Jury Instructions in Criminal Cases.


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Respectfully submitted,

______________________________

The Honorable Lisa T. Munyon


Committee Chair,


Jury Instructions (Criminal)

Ninth Judicial Circuit

425 N. Orange Ave., Room 1130

Orlando, Florida 32801

(407) 836-2470

(407) 835-5133(fax)

Honorable James M. Barton, II


Committee Vice-Chair,



Hillsborough County Courthouse Annex

800 East Twiggs, Room 512


(813) 272-6994

(813) 276-2725 (fax)

Joseph L. Amos, Jr.





Jury Instructions (Civil)Fisher, Rushmer, Werrenrath, Dickson,

Talley & Dunlap, P.A.

P.O. Box 712

Orlando, Florida 32802-0712

(407) 535-4868

(407) 535-4795 (fax)

________________________________

Tracy Raffles Gunn


Committee Chair,

Supreme Court Committee on

Standard Jury Instructions (Civil)

Gunn Appellate Practice

777 S. Harbour Island Blvd. Suite 770


(813) 254-3183

(813) 254-3258 (fax)

Joseph H. Lang, Jr.


Subcommittee Chair,

Filing Subcommittee



Carlton Fields P.A.

4221 W. Boy Scout Blvd.


(813) 229-4253

(813) 229-4133 (fax)

Rebecca Mercier Vargas





Jury Instructions (Civil)Kreusler-Walsh, Compiani &

Vargas, P.A.

501 South Flagler Drive, Suite 503

West Palm Beach, FL 33401

(561) 659-5455

(561) 820-8762 (fax)


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CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this report complies with the font

requirements set forth in Florida Rule of Appellate Procedure 9.210 by using

Times New Roman 14-point font.

By:

Lester A. Garringer, Jr.

Date post:	30-May-2018
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