Introduction
Instructions
M Civ JI 3.01: Faithful Performance of Duties; Jury to Following Instructions
M Civ JI 3.02: Facts to Be Determined from Evidence
M Civ JI 3.03: Admission of Evidence
M Civ JI 3.04: Attorneys' Statements Not Evidence; Admission by Attorney
M Civ JI 3.05: Corporations Entitled to Unprejudiced Treatment
M Civ JI 3.06: Whether Party Is Insured Is Irrelevant
M Civ JI 3.07: Evidence Introduced for a Limited Purpose
M Civ JI 3.08: Judge's Opinion as to Facts Is to Be Disregarded
M Civ JI 3.09: Jury to Consider All the Evidence
M Civ JI 3.10: Circumstantial Evidence
M Civ JI 3.11: Jurors May Take into Account Ordinary Experience and Observations
M Civ JI 3.12: Jury View of Premises / Scene / Object
M Civ JI 3.13: Fact Judicially Noticed
M Civ JI 3.15: Prior Inconsistent Statement of Witness
The instructions in this section are the usual form of so-called "cautionary" instructions. The selected instructions should be given as one instruction. It should be noted that M Civ JI 3.05, 3.06, 3.07, 3.10, and 3.12 are to be given only where applicable, and not, like the other instructions, in every case.
This Introduction was SJI 1.00.
Members of the jury, the evidence and argument in this case have been completed and I will now instruct you on the law. That is, I will explain the law that applies to this case.
Faithful performance by you of your duties is vital to the administration of justice.
The law you are to apply in this case is contained in these instructions, and it is your duty to follow them. In other words, you must take the law as I give it to you. You must consider them as a whole and not pick out one or some instructions and disregard others.
Following my instructions you will go to the jury room and deliberate and decide on your verdict.
Comment
This instruction is designed to prevent jurors from capriciously selecting one of several statements of law and using it in their deliberations out of context with the whole charge. People v Gardner , 143 Mich 104 (1906); Kempsey v McGinniss , 21 Mich 123 (1870).History
M Civ JI 3.01 was SJI 1.01(1), (2).
Amended January 1982, September 2007.
It is your duty to determine the facts from evidence received in open court. You are to apply the law to the facts and in this way decide the case. Sympathy must not influence your decision. Nor should your decision be influenced by prejudice regarding race, sex, religion, national origin, age, handicap, or any other factor irrelevant to the rights of the parties.
Comment
The subject matter of this instruction is often covered in greater detail by a number of separate instructions outlining the duties of the jury and admonishing them as to what should not enter into their deliberations. To inform the jury that they are to find the facts from the evidence, and to then apply the law to those facts, is the rule set forth in the Michigan cases. Souvais v Leavitt, 50 Mich 108; 15 NW 37 (1883); Wisner v Davenport, 5 Mich 501 (1858); Erickson v Sovars, 356 Mich 64; 45 NW2d 844 (1959).
The prohibition against sympathy or prejudice is equally applicable to both parties. Moreover, it is sufficient to caution the jury once against allowing sympathy and prejudice to enter into their consideration of the case. Doyle v Dobson, 74 Mich 562; 42 NW 137 (1989).
History
M Civ JI 3.02 was SJI 1.01(3).
Amended February 1991.
The evidence you are to consider consists of testimony of witnesses *(and exhibits offered and received) **(and your view of the [premises / scene / object]). The admission of evidence in court is governed by rules of law. From time to time it has been my duty as judge to rule on the admissibility of evidence. You must not concern yourselves with the reasons for these rulings, and you must not consider *(any exhibit to which an objection was sustained or) any testimony *(or exhibit) which was ordered stricken.
Note on Use
*Omit the references to exhibits if there are no exhibits.
**The phrase in parentheses should be read to the jury if the court has permitted a jury view and has determined that the view constitutes evidence. Appropriate designation of the kind of view may be selected instead of the bracketed words. If the court determines that the view is not evidence, this phrase in parentheses should not be read, and in lieu of it M Civ JI 3.12 should be given.
Michigan cases are in conflict on whether a jury view constitutes evidence. Generally the jury can consider information obtained by them from the view only to assist them in understanding evidence presented in open court, Valenti v Mayer, 301 Mich 551; 4 NW2d 5 (1942); but in some cases, the view itself may be evidence. Sunday v Wolverine Service Stations, 265 Mich 19; 251 NW 402 (1933).
Comment
Although some rulings on evidence are made out of the jury’s hearing, the great bulk of such rulings are made in the presence of the jury, who hear not only the reasons for objections but often the reasons for rulings as well. Whether offered evidence is admitted or excluded, the jury may be influenced by what it hears, and, consequently, it is proper to tell them of the Court’s duty in these matters and admonish them to ignore stricken or excluded evidence and the reasons for the rulings.
History
M Civ JI 3.03 was SJI 1.01(4).
Amended January 1992.
The lawyers' statements and arguments are not evidence. They are only meant to help you understand the evidence and each side's legal theories. The lawyers' questions to witnesses are also not evidence. You should consider these questions only as they give meaning to the witnesses' answers. You should only accept things the lawyers say that are supported by the evidence or by your own common sense and general knowledge.
However, an admission of a fact by a lawyer is binding on [ his / her ] client.
Note on Use
If a fact is admitted by a lawyer, this shall be explained to the jury as binding on his or her client to the extent of the admission, regardless of evidence to the contrary.If a specific admission, such as negligence or contributory negligence, is made, then the Court should explain that particular admission to the jury when giving the instructions on that subject.
Comment
Occasionally lawyers argue on matters that are within their personal knowledge but are not of record, or in the heat of forensic attack will make statements not based on the evidence. Ordinarily this is objected to and a request is made to instruct the jury to disregard the statement, but it is impossible or impractical to object to every such statement. It is therefore proper to inform the jury that arguments and statements of counsel not based on the evidence should be disregarded. Dalm v Bryant Paper Co , 157 Mich 550 (1909).For admissions on the pleadings, see MCR 2.111(E); for admissions by a lawyer in the course of trial, see Ortega v Lenderink , 382 Mich 218 (1969).
History
M Civ JI 3.04 was SJI 1.01(5).
Amended September 2007.
The corporation [plaintiff / defendant] in this case is entitled to the same fair and unprejudiced treatment as an individual would be under like circumstances, and it is your duty to decide the case with the same impartiality you would use in deciding a case between individuals.
Note on Use
This instruction should be given only in those cases where there are both corporate and individual parties.
Comment
The subject matter of this instruction is an exception to the general rule prohibiting the singling out of evidence or a particular party or witness. In view of the possibility that some jurors might have various attitudes prejudicial to corporations, a jury should be informed that a corporation is to be treated no differently from an individual. Cornell v Manistee & N R Co, 117 Mich 238; 75 NW 472 (1898).
History
Whether a party is insured has no bearing whatever on any issue that you must decide. Don't even discuss or speculate about insurance.
Note on Use
This instruction is to be used only where the subject of liability insurance has been brought out during the trial and has no bearing on any of the issues. It has no application, for example, in an action on an insurance policy.Comment
Rule 411 of the Michigan Rules of Evidence provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” See also MCL 500.3030. MRE 411 further provides that evidence of insurance need not be excluded if offered “for another purpose, such as proof of agency, ownership or control, if controverted, or bias or prejudice of a witness.” See also Gegan v Kemp , 302 Mich 218 (1942) (insurance adjuster's statements used for impeachment).Where insurance coverage of a party has been improperly disclosed, an instruction that it has no bearing on the case is proper. Ehlers v Barbeau , 291 Mich 528 (1939); see also Cassidy v McGovern , 86 Mich App 321 (1978) (tort action under Michigan no-fault act).
History
M Civ JI 3.06 was SJI 1.01(7). Amended September 2007.
Whenever evidence was received for a limited purpose or limited to [one party / certain parties], you must not consider it for any other purpose or as to any other [party / parties].
Note on Use
This instruction should be used only when evidence has been limited to a specific purpose or to specific parties. When used, the particular evidentiary limitation as to purpose or party shall be explained, either here or under another more appropriate instruction. (An example of such use would be where evidence was introduced on negligence of one plaintiff but it was not applicable to another of the parties plaintiff. In the section on negligence, the Court should specifically point out that the particular evidence that was admitted as to party A is not binding on party B.)
Comment
This instruction should be used when evidence has been restricted to a given purpose, or admitted against one or more but not all of the parties. An example of the first limitation occurs when prior inconsistent statements are admitted solely for impeachment purposes and not as substantive evidence. See MRE 801. Similarly, evidence may be admissible against one party while inadmissible as to another.
Rule 105 of the Michigan Rules of Evidence is consistent with this instruction. It requires that on request the Court instruct the jury as to the restriction on the evidence.
I have not meant to indicate any opinion as to the facts by my rulings, conduct or remarks during the trial; but if you think I have, you should disregard it, because you are the sole judges of the facts.
Comment
The instruction is so worded to inform the jury that comments the judge might make on the evidence are not binding on them. Cook v Vineyard, 291 Mich 375; 289 NW 181 (1939).
Since the remarks and rulings of the trial judge may erroneously be interpreted by the jury as comments on the evidence, this instruction is proper. Mawich v Elsey, 47 Mich 10; 10 NW 57 (1881).
History
In determining whether any fact has been proved, you shall consider all of the evidence bearing on that fact without regard to which party produced the evidence.
Note on Use
If evidence has been received for a limited purpose or is limited to a particular party or parties, M Civ JI 3.07 must also be given.
Comment
This instruction states the familiar principle that once evidence is admitted, it is in the case for all purposes and every party is entitled to the benefit of the evidence whether he or she or the adversary produced it.
History
Facts can be proved by direct evidence from a witness or an exhibit. Direct evidence is evidence about what we actually see or hear. For example, if you look outside and see rain falling, that is direct evidence that it is raining.
Facts can also be proved by indirect or circumstantial evidence. Circumstantial evidence is evidence that normally or reasonably leads to other facts. So, for example, if you see a person come in from outside wearing a raincoat covered with small drops of water, that would be circumstantial evidence that it is raining.
Circumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove or disprove a proposition. You must consider all the evidence, both direct and circumstantial.
History
M Civ JI 3.10 is a revision of SJI 1.03.
Amended February 1981, September 2007.
You have a right to consider all the evidence in the light of your own general knowledge and experience in the affairs of life, and to take into account whether any particular evidence seems reasonable and probable. However, if you have personal knowledge of any particular fact in this case, that knowledge may not be used as evidence.
Comment
Because jurors have been told it is their duty to determine the facts from evidence produced in open court, M Civ JI 3.02, it is proper also to inform them that they may rely on their general intelligence and knowledge of affairs. Rajnowski v Detroit, BC & A R Co , 74 Mich 15 (1889).History
M Civ JI 3.11 was SJI 1.04.
Amended September 2007.
Your view of the [premises / scene / object] was intended to help you understand the evidence. You are not to consider as evidence anything you may have learned from the view which was not covered by the testimony *(and exhibits) received in evidence.
Note on Use
This instruction should be used only when the Court has permitted a view of something other than an exhibit and has determined that the view does not constitute evidence. Appropriate designation of the kind of view may be selected instead of the bracketed words. This instruction may be given even though the court convenes at the scene and takes testimony, because the jury still might have seen or heard things not covered by the testimony. The instruction may be given before or at the time of the view.
If the court has determined that a jury view does constitute evidence, this instruction should not be given. See Note on Use to M Civ JI 3.03.
*The words in parentheses may be used if appropriate.
In condemnation cases, M Civ JI 90.22 should be given in lieu of this instruction.
Comment
The authority to have the jury view the scene comes from MCR 2.513(A).
Generally the jury can consider information obtained by them from the view only to assist them in understanding evidence presented in open court, Valenti v Mayer, 301 Mich 551; 4 NW2d 5 (1942); but in some cases, the view itself may be evidence. Sunday v Wolverine Service Stations, 265 Mich 19; 251 NW 402 (1933).
The jury view is appropriate in all civil actions, but is completely discretionary with the trial judge. MCR 2.513(A).
History
In this case, you must accept it as a fact that [Identify fact judicially noticed.].
Note on Use
This instruction should be used only in cases in which a fact has been judicially noticed. The instruction conforms with Rule 201(f) of the Michigan Rules of Evidence. Rule 201(f) provides: “In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed.”
History
If you decide that a witness said something earlier that is not consistent with what the witness said at this trial, you may consider the earlier statement in deciding whether to believe the witness, but you may not consider it as proof of the facts in this case.
However, there [ is an exception / are exceptions ]. You may consider an earlier statement as proof of the facts in this case if:
a. the statement was made by the plaintiff, the defendant, or an agent or employee of either party; or
b. the statement was given under oath subject to the penalty of perjury at a trial, hearing, [ Describe other proceeding. ], or in a deposition; or
c. the witness testified during the trial that the earlier statement was true.
Note on Use
This instruction should not be given if all prior inconsistent statements of witnesses are admissible as substantive evidence.If all prior inconsistent statements are admissible only for credibility, only the first paragraph of this instruction should be given.
If some prior inconsistent statements of witnesses are admissible for credibility and some as substantive evidence, both paragraphs of this instruction should be given, but the trial judge should select only the subsections of paragraph two that are applicable.
Comment
A witness may be impeached through a showing of prior statements inconsistent with his or her testimony. Gilchrist v Gilchrist , 333 Mich 275 (1952); Michigan Pipe Co v North British & Mercantile Insurance Co , 97 Mich 493 (1893); Geerds v Ann Arbor R Co, 181 Mich 12 (1914). A prior inconsistent statement given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, may also be considered as substantive evidence. MRE 801(d)(1)(A). If the witness adopts by admission the truth of the prior inconsistent statement, that may also become substantive evidence. Schratt v Fila , 371 Mich 238 (1963).Prior inconsistent conduct that is not intended as an assertion is admissible as competent proof but conduct intended as an assertion is subject to the hearsay objection. MRE 801(a), (c).
A statement offered against a party that is his or her own statement is admissible as substantive evidence. MRE 801(d)(2). The same is true if the statement is a statement by a person authorized by a party to make a statement concerning the subject (MRE 801(d)(2)(C)), or a statement by an agent or employee concerning a matter within the scope of the agency or employment and made during the existence of the relationship (MRE 801(d)(2)(D)).
History
M Civ JI 3.15 (former M Civ JI 5.01) was SJI 3.01.
Amended December 1982, November 1983, August 1991, October 1993, February 1998.
Renumbered from M Civ JI 5.01 to M Civ JI 3.15 January 1999.
Amended September 2007.