IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A. Merritt, Jr., 

Plaintiff, 

v. 

State of Arizona, et al., 

Defendants. 

No. CV17-4540 PHX DGC 

 

COURT’S PROPOSED PRELIMINARY JURY INSTRUCTIONS 

AND VOIR DIRE 

DATED: October 9, 2020 

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1.3 DUTY OF JURY (COURT READS INSTRUCTIONS AT THE BEGINNING 

OF TRIAL BUT DOES NOT PROVIDE WRITTEN COPIES) 

Members of the jury: You are now the jury in this case. It is my duty to instruct 

you on the law. 

It is your duty to find the facts from all the evidence in the case. To those facts you 

will apply the law as I give it to you. You must follow the law as I give it to you whether 

you agree with it or not. And you must not be influenced by any personal likes or dislikes, 

opinions, prejudices or sympathy. That means that you must decide the case solely on the 

evidence before you. You will recall that you took an oath to do so. 

At the end of the trial I will give you final instructions. It is the final instructions 

that will govern your duties. 

Please do not read into these instructions, or anything I may say or do, that I have 

an opinion regarding the evidence or what your verdict should be. 

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STATEMENT OF THE CASE 

This is a civil case brought by Plaintiff Leslie Merritt, Jr., against Defendant State 

of Arizona. The State employs police officers, crime lab technicians, and forensic 

scientists who work at the Arizona Department of Public Safety (sometimes referred to as 

“DPS”). In August 2015, DPS officers investigated the shooting of vehicles along various 

freeways in the Phoenix area, including Interstate 10. On September 18, 2015, DPS 

officers arrested Plaintiff Leslie Merritt, Jr., for those shootings, and he was detained in the 

Maricopa County Jail. Plaintiff alleges that he was wrongfully arrested and imprisoned, 

and that he has incurred damages. Defendant State of Arizona denies any liability and 

asserts that the arresting officers had probable cause to arrest and detain Plaintiff. 

Plaintiff asserts claims against the State of Arizona for false arrest, false 

imprisonment, and aiding and abetting. Following his arrest on September 18, 2015, 

Plaintiff remained in custody until April 19, 2016, when the charges against him were 

dismissed. The Court has previously ruled, for legal reasons, that Plaintiff may recover 

damages for his claims, if any, only for the six-day period between his arrest on September 

18 and the date on which a grand jury returned an indictment against him, which was 

September 24, 2015. Your task will be to decide first, whether or not Defendant had 

probable cause to arrest Plaintiff on September 18, 2015, and second, if not, what damages, 

if any, Plaintiff incurred between September 18 and September 24, 2015. In making these 

decisions you should not be influenced in any way by the fact that the charges against 

Plaintiff were dismissed in April 2016, or by the fact that Plaintiff was indicted by a grand 

jury on September 24, 2015. Your focus should be on whether his arrest on September 18, 

2015 lacked probable cause, and his claim for damages during the following six days. 

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1.5 CLAIMS AND DEFENSES 

To help you follow the evidence, I will give you a brief summary of the positions 

of the parties: 

 Plaintiff asserts that Defendant, State of Arizona, is liable for false arrest, false 

imprisonment, and aiding and abetting. Plaintiff has the burden of proving these claims. 

 Defendant denies liability and asserts that the arresting officers had probable cause 

to arrest Plaintiff. 

 

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1.6 BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE 

When a party has the burden of proving any claim or affirmative defense by a 

preponderance of the evidence, it means you must be persuaded by the evidence that the 

claim or affirmative defense is more probably true than not true. 

You should base your decision on all of the evidence, regardless of which party 

presented it. 

 

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1.7 BURDEN OF PROOF – CLEAR AND CONVINCING EVIDENCE (?) 

When a party has the burden of proving any claim or defense by clear and 

convincing evidence, it means that the party must present evidence that leaves you with a 

firm belief or conviction that it is highly probable that the factual contentions of the claim 

or defense are true. This is a higher standard of proof than proof by a preponderance of 

the evidence, but it does not require proof beyond a reasonable doubt. 

 

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1.9 WHAT IS EVIDENCE 

The evidence you are to consider in deciding what the facts are consists of: 

1. the sworn testimony of any witness; 

2. the exhibits that are admitted into evidence; 

3. any facts to which the lawyers have agreed; and 

4. any facts that I may instruct you to accept as proved. 

 

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1.10 WHAT IS NOT EVIDENCE 

In reaching your verdict, you may consider only the testimony and exhibits received 

into evidence. Certain things are not evidence, and you may not consider them in deciding 

what the facts are. I will list them for you: 

1. Arguments and statements by lawyers are not evidence. The lawyers are not 

witnesses. What they may say in their opening statements, closing arguments 

and at other times is intended to help you interpret the evidence, but it is not 

evidence. If the facts as you remember them differ from the way the lawyers 

have stated them, your memory of them controls. 

2. Questions and objections by lawyers are not evidence. Attorneys have a duty 

to their clients to object when they believe a question is improper under the 

rules of evidence. You should not be influenced by the objection or by the 

court’s ruling on it. 

3. Testimony that is excluded or stricken, or that you are instructed to disregard, 

is not evidence and must not be considered. In addition some evidence may 

be received only for a limited purpose; when I instruct you to consider certain 

evidence only for a limited purpose, you must do so and you may not 

consider that evidence for any other purpose. 

4. Anything you may see or hear when the court is not in session is not evidence. 

You are to decide the case solely on the evidence received at the trial. 

 

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1.12 DIRECT AND CIRCUMSTANTIAL EVIDENCE 

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, 

such as testimony by a witness about what that witness personally saw or heard or did. 

Circumstantial evidence is proof of one or more facts from which you could find another 

fact. You should consider both kinds of evidence. The law makes no distinction between 

the weight to be given to either direct or circumstantial evidence. It is for you to decide 

how much weight to give to any evidence. 

 

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1.13 RULING ON OBJECTIONS 

There are rules of evidence that control what can be received into evidence. When 

a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side 

thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule 

the objection, the question may be answered or the exhibit received. If I sustain the 

objection, the question cannot be answered, and the exhibit cannot be received. Whenever 

I sustain an objection to a question, you must ignore the question and must not guess what 

the answer might have been. 

 

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1.14 CREDIBILITY OF WITNESSES 

In deciding the facts in this case, you may have to decide which testimony to believe 

and which testimony not to believe. You may believe everything a witness says, or part of 

it, or none of it. 

In considering the testimony of any witness, you may take into account: 

1. the opportunity and ability of the witness to see or hear or know the things 

testified to; 

2. the witness’s memory; 

3. the witness’s manner while testifying; 

4. the witness’s interest in the outcome of the case, if any; 

5. the witness’s bias or prejudice, if any; 

6. whether other evidence contradicted the witness’s testimony; 

7. the reasonableness of the witness’s testimony in light of all the evidence; and 

8. any other factors that bear on believability. 

Sometimes a witness may say something that is not consistent with something else 

he or she said. Sometimes different witnesses will give different versions of what 

happened. People often forget things or make mistakes in what they remember. Also, two 

people may see the same event but remember it differently. You may consider these 

differences, but do not decide that testimony is untrue just because it differs from other 

testimony. 

However, if you decide that a witness has deliberately testified untruthfully about 

something important, you may choose not to believe anything that witness said. On the 

other hand, if you think the witness testified untruthfully about some things but told the 

truth about others, you may accept the part you think is true and ignore the rest. 

The weight of the evidence as to a fact does not necessarily depend on the number 

of witnesses who testify. What is important is how believable the witnesses were, and how 

much weight you think their testimony deserves. 

 

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1.15 CONDUCT OF THE JURY 

I will now say a few words about your conduct as jurors. 

First, keep an open mind throughout the trial, and do not decide what the verdict 

should be until you and your fellow jurors have completed your deliberations at the end of 

the case. 

Second, because you must decide this case based only on the evidence received in 

the case and on my instructions as to the law that applies, you must not be exposed to any 

other information about the case or to the issues it involves during the course of your jury 

duty. Thus, until the end of the case or unless I tell you otherwise: 

Do not communicate with anyone in any way and do not let anyone 

else communicate with you in any way about the merits of the case or 

anything to do with it. This includes discussing the case in person, in writing, 

by phone or electronic means, via email, text messaging, or any internet chat 

room, blog, website or application, including but not limited to Facebook, 

YouTube, Twitter, Instagram, LinkedIn, Snapchat, or any other forms of 

social media. This applies to communicating with your fellow jurors until I 

give you the case for deliberation, and it applies to communicating with 

everyone else including your family members, your employer, the media or 

press, and the people involved in the trial, although you may notify your 

family and your employer that you have been seated as a juror in the case, 

and how long you expect the trial to last. But, if you are asked or approached 

in any way about your jury service or anything about this case, you must 

respond that you have been ordered not to discuss the matter and report the 

contact to the court. 

Because you will receive all the evidence and legal instruction you 

properly may consider to return a verdict: do not read, watch or listen to any 

news or media accounts or commentary about the case or anything to do with 

it; do not do any research, such as consulting dictionaries, searching the 

Internet, or using other reference materials; and do not make any 

investigation or in any other way try to learn about the case on your own. Do 

not visit or view any place discussed in this case, and do not use Internet 

programs or other devices to search for or view any place discussed during 

the trial. Also, do not do any research about this case, the law, or the people 

involved – including the parties, the witnesses or the lawyers – until you have 

been excused as jurors. If you happen to read or hear anything touching on 

this case in the media, turn away and report it to me as soon as possible. 

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These rules protect each party’s right to have this case decided only on evidence 

that has been presented here in court. Witnesses here in court take an oath to tell the truth, 

and the accuracy of their testimony is tested through the trial process. If you do any 

research or investigation outside the courtroom, or gain any information through improper 

communications, then your verdict may be influenced by inaccurate, incomplete or 

misleading information that has not been tested by the trial process. Each of the parties is 

entitled to a fair trial by an impartial jury, and if you decide the case based on information 

not presented in court, you will have denied the parties a fair trial. Remember, you have 

taken an oath to follow the rules, and it is very important that you follow these rules. 

A juror who violates these restrictions jeopardizes the fairness of these proceedings, 

and a mistrial could result that would require the entire trial process to start over. If any 

juror is exposed to any outside information, please notify the court immediately. 

 

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1.17 NO TRANSCRIPT AVAILABLE TO JURY 

I urge you to pay close attention to the trial testimony as it is given. During 

deliberations you will not have a transcript of the trial testimony. 

 

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1.18 TAKING NOTES 

If you wish, you may take notes to help you remember the evidence. If you do take 

notes, please keep them to yourself until you go to the jury room to decide the case. Do 

not let notetaking distract you. When you leave, your notes should be left in the courtroom. 

No one will read your notes. 

Whether or not you take notes, you should rely on your own memory of the 

evidence. Notes are only to assist your memory. You should not be overly influenced by 

your notes or those of other jurors. 

 

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1.20 BENCH CONFERENCES AND RECESSES 

From time to time during the trial, it may become necessary for me to talk with the 

attorneys out of the hearing of the jury, either by having a conference at the bench when 

the jury is present in the courtroom, or by calling a recess. Please understand that while 

you are waiting, we are working. The purpose of these conferences is not to keep relevant 

information from you, but to decide how certain evidence is to be treated under the rules 

of evidence and to avoid confusion and error. 

Of course, we will do what we can to keep the number and length of these 

conferences to a minimum. I may not always grant an attorney’s request for a conference. 

Do not consider my granting or denying a request for a conference as any indication of my 

opinion of the case or of what your verdict should be. 

 

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1.21 OUTLINE OF TRIAL 

Trials proceed in the following way: First, each side may make an opening 

statement. An opening statement is not evidence. It is simply an outline to help you 

understand what that party expects the evidence will show. A party is not required to make 

an opening statement. 

The plaintiff will then present evidence, and counsel for the defendant may crossexamine. Then the defendant may present evidence, and counsel for the plaintiff may 

cross-examine. 

After the evidence has been presented, I will instruct you on the law that applies to 

the case and the attorneys will make closing arguments. 

After that, you will go to the jury room to deliberate on your verdict. 

 

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2.1 STIPULATED TESTIMONY (?) 

The parties have agreed what [witness]’s testimony would be if called as a witness. 

You should consider that testimony in the same way as if it had been given here in court. 

 

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2.2 STIPULATIONS OF FACT 

The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that 

will be read to you]. You must therefore treat these facts as having been proved. 

 

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2.4 DEPOSITION IN LIEU OF LIVE TESTIMONY 

A deposition is the sworn testimony of a witness taken before trial. The witness is 

placed under oath to tell the truth and lawyers for each party may ask questions. The 

questions and answers are recorded. When a person is unavailable to testify at trial, the 

deposition of that person may be used at the trial. 

The deposition of [name of witness] was taken on [date]. Insofar as possible, you 

should consider deposition testimony, presented to you in court in lieu of live testimony, 

in the same way as if the witness had been present to testify. 

Do not place any significance on the behavior or tone of voice of any person reading 

the questions or answers. 

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2.5 TRANSCRIPT OF RECORDING IN ENGLISH 

You are about to hear/watch a recording that has been received in evidence. Please 

listen to it very carefully. Each of you has been given a transcript of the recording to help 

you identify speakers and as a guide to help you listen to the recording. However, bear in 

mind that the recording is the evidence, not the transcript. If you hear something different 

from what appears in the transcript, what you heard is controlling. After the recording has 

been played, the transcript will be taken from you. 

 

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2.9 IMPEACHMENT EVIDENCE – WITNESS (?) 

The evidence that a witness [e.g., has been convicted of a crime, lied under oath on 

a prior occasion, etc.] may be considered, along with all other evidence, in deciding 

whether or not to believe the witness and how much weight to give to the testimony of the 

witness and for no other purpose. 

 

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2.10 TESTS AND EXPERIMENTS 

A test or experiment of a run-flat tire was conducted by Matthew Noedel. You 

observed the conditions under which that test or experiment was made. These conditions 

may or may not duplicate the conditions and other circumstances that existed at the time 

and place of the incident involved in this case. It is for you to decide what weight, if any, 

you give to the test or experiment. 

 

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2.13 EXPERT OPINION 

You are about to hear testimony from [name] who will testify to opinions and the 

reasons for his/her opinions. This opinion testimony is allowed, because of the education 

or experience of this witness. 

Such opinion testimony should be judged like any other testimony. You may accept 

it or reject it, and give it as much weight as you think it deserves, considering the witness’s 

education and experience, the reasons given for the opinion, and all the other evidence in 

the case. 

 

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2.14 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE 

Certain charts and summaries not admitted into evidence may be shown to you in 

order to help explain the contents of books, records, documents, or other evidence in the 

case. Charts and summaries are only as good as the underlying evidence that supports 

them. You should, therefore, give them only such weight as you think the underlying 

evidence deserves. 

 

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2.15 CHARTS AND SUMMARIES RECEIVED IN EVIDENCE 

Certain charts and summaries may be admitted into evidence to illustrate 

information brought out in the trial. Charts and summaries are only as good as the 

testimony or other admitted evidence that supports them. You should, therefore, give them 

only such weight as you think the underlying evidence deserves. 

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